Who controls education?

4 roles of public education o State o Family o Individuals o Sharing Pierce compromise: State can require children to go to school, can regulate education; But parents can choose private school 1. State has authority to compel all children to go to school (to be educated in a manner that the state thinks appropriate) 2. State has the authority to reasonably regulate all education 3. Parent has the right to choose non-public education [not an absolute right, because a parent generally cannot choose to not send her child to school at all] Today this would be decided under the First Amendment because the primary effect was to burden parochial schools Cannot effectively deny right of parents to educate children outside of school Tokushige o Similar to Pierce. By closely regulating foreign language schools, too much control was taken away from parents on deciding how their kids should be educated in an after-school environment. Cannot ban entire fields of study; *Sub DP right to direct childs upbringing; Teachers right to teach Meyer (1923) o Under Pierce, the state cannot prohibit the teaching of a given language (nothing inimical about language, even the language of ones enemy) o A teacher's right to teach and the right of parents to engage a teacher to instruct their children are within the liberty guaranteed under the 14th Amendment o The Court did note that states had the unquestioned power to impose compulsory education, to regulate all schools, to require instruction in English and to prescribe a curriculum for the institutions which it supports Nevertheless, the Court held that the law as applied is arbitrary and without reasonable relation to any end within the competency of the State State authority to compel schooling vs. countervailing parental interests Free Exercise: Can override the states interest in compulsory education with appeal to private rights, but rare Yoder o Limited compulsory attendance for religious groups that will do a good job. Basically an application of Pierce: you can send your children to private school (or a place where you receive relevant vocational training, like an Amish community) as long as the school is adequate o Test: private interest v. state interest 1

Private interest (three things required for prima facie case) 1. Religious interest [court stresses the ancientness of Amish religion; also notes that a mere philosophical interest is insufficient to qualify here; it cant just be your way of life, must be your religion] 2. Religious interest is sincere [otherwise you could make up anything you wanted] 3. The states law places a substantial burden on the exercise of the religious interest o Amish did this by saying that high school would jeopardize their childrens salvation o NOTE: this is where most claims will win or lose (courts often dont inspect the first two prongs closely) o Prof: Compulsory attendance would destroy the Amish way of life Private interest must be proved before you weigh with the state interest State interest In Yoder, the interests were: o Self-sufficiency of children [prepare for life] o Citizenship [lay down foundation for voting] o Empowering child [allowing her interests to come through; maybe shes not interested in Amish subjects, but in musical dance] Court is very split over this issue; White and Douglas were very concerned about trapping the children into a culture they didnt want to be in o Court held two proposed state interests as clearly insufficient in Yoder Belief/action Court dispensed with the notion that this law was o.k. because it only regulated Amish action (not belief) Neutrality fact that WI did not single out the Amish in making the law is of no consequence here

o Effect of Employment Smith on Yoder Smith held that neutral, generally applicable laws do not violate the free exercise clause Hybrid exception in cases like Yoder that involve free exercise and an additional right, then apply a Yoder analysis (not Smith) This has huge implication for education law cases, because almost all should be hybrids in this context Prof: As long as the states no singling out a religion for disadvantage, its ok. Says all the other cases are hybrid cases. Cannot remove students from school unless the state can be assured that they are receiving education designed to make them productive; Compelling interest in compulsory education Duro 2

o A state has a compelling interest in compulsory education, in order to prepare citizens to participate effectively and intelligently in our political system and to prepare individuals to be self-reliant and self-sufficient participants in society. o Compared to Yoder: The Duros, unlike their Amish counterparts, are not members of a community which has existed for three centuries and has a long history of being a successful, self-sufficient, segment of American society. Furthermore, in Yoder, the Amish children attended public school through the eighth grade and then obtained informal vocational training to enable them to assimilate into the self-contained Amish community. However, in the present case, Duro refuses to enroll his children in any public or nonpublic school for any length of time, but still expects them to be fully integrated and live normally in the modern world upon reaching the age of 18. o *How to distinguish these two cases: Theyre answering the question, What do we do when freedom of religious practice conflicts with the governments compelling interest in ensuring its citizens are adequately educated? Basically, if you take your religion very, very seriously and will provide a substitute education that is reasonably sufficient, then ok. State regulation of private schools Minimum: States can regulate equivalent instruction in private schools and various accountability measures Too far: Mandating the vast bulk of the curriculum None of the following cases are necessarily authoritative no SCOTUS precedent in this area; remember though that Pierce compromise allows some reasonable regulation of all schools Can mandate teacher certification and student accountability Benton o Private schools must file annual reports and its teachers must be certified and provide equivalent instruction. o Not a substantial burden on private interests under Yoder, so there is no need to articulate the states interest or conduct a balancing test. Cannot mandate 100% of private schools curriculum Whisner o State created a minimum standard for private schools of 5 hours of specified instruction. This left no time for religious instruction. Although educational standards were facially neutral, they unduly burdened the parents' free exercise rights because they interfered with the school's ability to devote time to the teaching of religious subjects and they required "all activities" of a nonpublic school, including religious activities, to conform to the policies adopted by the board of education. Where the "minimum standards" promulgated by the State Board of Education are so comprehensive in scope and effect as to eradicate the distinction between public and non-public education, application of these "minimum standards" to defendants, parents of children attending a non-public religious school, abrogates their fundamental freedom, protected by the liberty clause of the Fourteenth Amendment, to direct the upbringing and education, secular or religious, of their children. 3

Can require standardized testing; Rational basis for state authority to control education (absent a free exercise claim) Goff o OH requires standardized tests for all schools (private included); private schools say this limits their discretion over the curriculum because they have to teach towards the test. o Plaintiffs argue that Pierce right lets them decide what to teach students in private schools o Court applies rational basis to Ps Pierce claims; because these tests just covered the basics (math, etc.) and because the tests didnt dictate every hour of the day like in Whisner o Despite the fact that Pierce right can be regulated, it is still fundamental (similar to abortion, which can also be regulated) o Rationale for rational basis: impossible to run school if every decision can be challenged by strict scrutiny. Cant have parents challenging decision to teach or not teach past participles etc.; strict scrutiny would be a field day for litigation N.C. regulation of private schools - N.C.G.S 115C-547 to 565 o NC has three classes of private schools: 1) private church schools and schools of religious charter 2) qualified private schools 3) home schools o NC has really deregulated private schools Only requirements: to take tests (as all schools do), to immunize children, to have safe buildings, and to take attendance The testing requirements let the schools do whatever they want as long as they meet the certain output at the end No curricular requirements; no teacher certification o Because private schools want to be accredited, this has taken the place of much regulation [accreditation is by an independent organization, not the state] o Home schools have especially escaped regulation Perfect storm accountability and local control o The Rehnquist Supreme Court has made "local control" of public school boards its chief constitutional imperative. However, many southern school boards, including those in North Carolina, will find themselves effectively prohibited from using this newly restored "local control" to assure the continuance of racially integrated public schools. o (1) This new ban on race-conscious student assignments threatens to re-create, in many urban and some rural southern districts, levels of racial and socioeconomic isolation not experienced by students in the South since the mid-1960s. o (2) The second force currently shaping southern education is the new "accountability" approach that has, during the past decade, attained practical domination over the educational planning and delivery systems of every state. During the past fifteen years, North Carolina has wholeheartedly embraced an accountability model; its system, known locally as "The ABCs of Education," has been singled out as among the nation's best. The No Child Left Behind Act ensures that accountability systems will everywhere become mainstays of public educational organization and practice in the decade to come. 4

o (3) This winner/loser contest pits financially favored districts - where schools are modern, teachers well-qualified, and special academic programs abundant - against less fortunate districts - where shortages of library books, computers, or laboratory equipment are perhaps less educationally damaging than a persistent lack of qualified teachers, smaller classes, and specialized programs. o When accountability measures are imposed on, and interact with, school systems characterized by growing racial and ethnic segregation, they threaten to exacerbate the isolation of African-American, Hispanic, Native-American, and low-income children, with negative consequences both for their access to highly performing classmates and for any prospect of attracting better, more highly qualified classroom teachers to their schools. The reasons are clear: the convergence of racial segregation and high-stakes accountability testing all but dooms racially segregated, economically isolated public schools and their students to failure on state accountability tests, entrenching broad patterns of grade retention, student demoralization and dropout, and parental and teacher flight. o The chief hope of salvation from the imminent educational disasters forecast by this Article, as we have seen, appear[s] to lie in steering public resources toward those students and schools with the greatest educational need. The new accountability approach promised to accelerate this change, first, by identifying those who most need help and then, by motivating those who must provide that help. In past decades, accountability's supporters reason, the absence of information about the performance of marginalized children led either to a fool's paradise - in which students, their parents, and even their schools have drifted without full recognition of their students' underperformance - or to a cynic's wasteland - in which poor and minority children were abandoned or acculturated to subordination and failure. o The pedagogical challenge is that no scholar or educator has yet identified a package of educational resources or practices that can, in a consistent and replicable manner, reach and lift the performances of those children who most need educational assistance. o The political challenge is equally formidable. The convoluted story of modern school finance reform has often been told. Even in those states where courts have been willing to identify and enforce a right to education, real educational progress has come slowly, for courts have typically looked to state legislative or executive officials to prescribe the specific content of educational reform packages to redress interdistrict fiscal or resource inequities. Yet legislatures both North and South find themselves under very powerful pressure not to compromise the reliable political support they receive from white, suburban voters by showering additional aid on failing schools in poor and minority districts with far less electoral clout. o Within North Carolina and the Fourth Circuit, the model of school assignment that Wake County has chosen to pursue would, if adhered to over time, avoid much of the educational damage which this Article has forecast, because it would actively resist the demographic trends toward high-poverty and low-performing schools that incite the sorting behavior by white and middle-class parents that can send a school's demography spiraling toward long-term failure. Yet the capacity of the Wake school 5

board to sustain broad public support for these enlightened policies will be seriously tested in the coming few years, and other school districts may not find leaders with foresight to follow Wake's lead. Local school board o Superintendent: Chief Administrative officer for the school; appointed by the board; a longtime professional educator; hire administrative staff o Immune from suit:

Who Controls Content in Public Schools Religion in Public Schools Free Exercise challenges are tested under Yoder o 1. Religious belief o 2. Sincerely held o 3. Substantially burdened o At that point there is a facial burden a state must outweigh it with a compelling interest. Yes: Anything plausibly secular No: o Sleight of hand o School-led, -endorsed religious act o Creationism o Banning material simply b/c it offends a religion o Religious monuments that draw attention to themselves Cannot allow purposeful religious instruction (First Amendment); Cannot prohibit acts with plausible secular purpose; Endorsement (objective observer) test Wallace v. Jaffree (1985) o 1-minute period of silence in all public schools "for meditation or voluntary prayer." o The statements in the legislative record and in testimony before the District Court indicate that the legislation was solely an "effort to return voluntary prayer" to the public schools. o HOWEVER, If a legislature expresses a plausible secular purpose for a moment of silence statute in either the text or the legislative history, or if the statute disclaims an intent to encourage prayer over alternatives during a moment of silence, then courts should generally defer to that stated intent. o Concurrence (OConnor): Endorsement test: objective observer (question is not whether there is an intent). She says there is endorsement of religion broadly in this case. But we should be able to accommodate religion (ie, no school on Sundays). o Dissent (Rehnquist): Madison did not envision government neutrality between religion and irreligion, just between specific types of religion. Intent test Lemon: (1) secular purpose (intent); (2) principal effect must not advance or inhibit religion; (3) excessive gov entanglement with religion. Cannot allow group religious practice; Coercion test Weisman (1992) o Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. 7

Coercion test: Prayer exercises in public schools carry a particular risk of indirect coercion. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy."

Cannot allow group religious practice even when students themselves have chosen it; Any facilitation of religious practice by school renders the speech no longer private; Lemon test and coercion test Sante Fe (2000) o Student-led, student-initiated prayer at football games violates the Establishment Clause. The delivery of a message such as the invocation here -- on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer -- is not properly characterized as "private" speech. Cannot require teaching creationism; Cannot ban evolution; Lemon: no secular purpose Aguillard o A statute required the state's public schools to give "balanced treatment" to "creation science" and "evolution science." o Holding: The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose (Lemon) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. o Prof: ct looking at actual purpose, not stated purpose; strict scrutiny of intent (very searching inquiry, looks at prior legal history); cant advance religion over non-religion; but some accommodation of religion is ok (Yoder) Cannot ban topics offensive to religion (secular humanism); Secular education does not violate free exercise of religion; Compelling interest in learning complex moral and social issues; Narrowly tailored b/c no other way to teach these issues than by discussing them Mozert o Critical thinking readers touch on topics offensive to religion.

o Issue: whether a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious grounds constitutes a burden on the free exercise of that person's religion as forbidden by the First Amendment. o Holding: tough luck Compelling interest: Teaching students about complex and controversial social and moral issues is essential for preparing public school students for citizenship and self-government. Narrowly tailored: Several witnesses for appellants testified that in order to develop critical reading skills, and therefore achieve appellants' objectives, the students must read and discuss complex, morally and socially difficult issues. Even if the school based its critical thinking exercises on plaintiffs religion, what are you going to do when you reach those beliefs question them. Additionally, adopting one religious base will alienate another. Youre doing P a favor by putting her kid on Mars. Schools are very important, and some public schools offend some people deeply. Newdow (2004) 1. a. b. 2. c. d. 3. irreligion P brings challenge under first prong of Lemon text added for very religious reasons much in line with Wallace v. Jaffree D counters here that the pledge is a patriotic act Shifts focus away from legislative intent Distinguishes from prayer cases Scalia will also say that it is okay to acknowledge religion over

Cannot appear to a reasonable observer to promote religion McCreary (2005) o 10 Commandments had to be placed in high traffic area of cthouse; ordered to take it down; o Under Lemon, although a legislature's stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective. Can allow passive religious monuments; Can consider the nature of the monument and our Nations history Van Orden (2005) o 10 Commandments on state grounds o Holding: its ok Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. o School context is different because its harder youve got a captive audience in an education institution. State aid to private schools (funding issues) 9

Yes: o Indirect payment, even if facilitates religious purpose (tax deductions) o Supplemental remedial education to children in private schools o Sign language instruction in private schools No: o Direct payment, even if for secular purpose (repairs) Test: o What would the objective observer think (not direct or indirect)? Many of these issues turn on the second prong of Lemon. Cannot let gov give money directly to private schools, even for non-educational purpose Nyquist (1973) o Laws in NY changed to allow maintenance/repair grants and tuition reimbursement grants for nonpublic schools o SCOTUS held that the maintenance/repair and tuition reimbursement provisions violated the Establishment Clause because their effect, inevitably, was to subsidize and advance the religious mission of sectarian schools (i.e. failed 2nd branch of Lemon test) Note that there were secular purposes here (advance education; keep children from flooding public system) Can allow incidental, state-sponsored benefits for religious schools; Passes Lemon Muller v. Allen o Taxpayers can deduct "tuition, textbooks and transportation" for their children. o Holding: Satisfies Lemon. Secular purpose: The tax deduction in question has the secular purpose of ensuring that the State's citizenry is well educated, as well as of assuring the continued financial health of private schools, both sectarian and nonsectarian. Prof: But the tax deduction is for $500, which is clearly to offset private school tuition. And 96% of those claiming the deduction were sending their children to religious school. Primary effect: Cant have state money going directly to religious schools (see Nyquist). But a deduction does not have the primary effect of advancing the sectarian aims of nonpublic schools it is not money going directly to the schools. It is only one of many deductions -- such as those for medical expenses and charitable contributions -- available under the Minnesota tax laws; is available for educational expenses incurred by all parents, whether their children attend public schools or private sectarian or nonsectarian private schools; and provides aid to parochial schools only as a result of decisions of individual parents rather than directly from the State to the schools themselves. Prof: This is where it should have failed. But what about the IRS charitable contribution options? Most are religious. Excessive entanglement: The statute does not "excessively entangle" the State in religion. The fact that state officials must determine whether particular textbooks qualify for the tax deduction and must disallow deductions for textbooks used in teaching religious doctrines is an insufficient basis for finding such entanglement. 10

Aguilar v. Felton (1985) o In NYC, Title I went to parochial schools (which is permissible under Title I) Public school teachers were sent into these parochial schools to give the Title I aid by teaching secular subjects; in their classrooms, all religious signs were ripped from the walls, etc. o SCOTUS held that this violated the Establishment Clause The Court held that the principal and primary effect of sending these teachers into these schools was to advance religion [actually I think it was excessive entanglement] The Court assumed that the teacher took on aura of a sectarian teacher when in the school, making it difficult to avoid religious messages The policing necessary to ensure that the Title I funds werent being used for religious purposes constituted an excessive entanglement o After Aguilar, Title I schools had to open up separate schools across the street from parochial schools in order to avoid these entanglement problems Can provide supplemental remedial education to children in private schools so long as safeguards exist Agostini o A federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees under a program containing safeguards such as those present in New York City's Title I program. Accordingly, Aguilar is no longer good law (see Zobrest decision, holding that a sign language teacher could come into the schools because the teacher was a passive tool like a hearing aid; also court no longer held that direct aid to religion was always invalid). Court refused to believe that teacher would be influenced by religious surroundings o Prof: No longer matters whether government aid is direct or indirect, but rather what the objective observer would think. o Court also notes that it has abandoned the notion that all govt aid that directly aids the educational function of private religious schools is necessarily invalid Witters (p113): Court held that Est. Cl. did not bar a state from giving a tuition grant to a blind person wishing to go to a religious college in order to one day get a religious job Obviously grant would go to religion; but because recipient chose this for himself court had no problem Grants were available generally to all people; money given directly to students, who chose what to do with the money themselves Vouchers and other devices to permit parental choice Zelman (2002) 11

o SCOTUSs last look at this issue of govt funding to religion o SCOTUS upholds this voucher system for three reasons o Law is neutral on its face (i.e. doesnt encourage/favor religious schools over nonreligious schools) o Court holds this way despite the fact that 90% of the children use the voucher to go to religious schools Money goes directly to parents, who make the choice Under this law, it is actually harder on parents to choose a religious school (because the parents only get some money; religious schools are expensive, and theyd have to pay the difference) o Overall trend: current court is more comfortable with money eventually going to religious institutions Davey o The prohibition against using State scholarship funds to pursue a theology degree codified the Washington Constitution's express prohibition against appropriating State funds for religious instruction. The student, who otherwise qualified for State educational assistance, argued that the scholarship program unconstitutionally singled out religion for unfavorable treatment without being narrowly tailored to achieve a compelling state interest. o Holding: while the federal constitution did not preclude the election of religious instruction using government assistance, the State's broader prohibition reflected its substantial interest against the establishment of religion by funding devotional degrees, and the prohibition was not violative of the federal constitution since the exclusion of such funding placed a relatively minor burden on the student. That the State dealt differently with education for the ministry than with education for other callings was not evidence of hostility toward religion, especially since the scholarship program did not prohibit attendance at religious institutions or a curriculum which included devotional theology courses. Vouchers o Ohio statute says there is a voucher for an Ohio school district under state control pursuant to a ct order (only one district that met that requirement). Only private schools agreed to participate; 96% of students ended up using their vouchers in religious schools. This was upheld. The money was given to the parents who were free to spend the money for public or private schools. Hypo o Scholarship for any secular major. o Perfectly constitutional. No entitlement to a scholarship. We dont want any risk of establishment of a state religion. Political socialization: individual conscience vs. the obligations of citizenship Cannot ban entire fields of study; Sub DP right to direct childs upbringing; School controls curriculum (see Pierce) Meyer 12

Cannot force declaration of political belief; Except to prevent grave and immediate danger; Can teach history that tends to inspire political beliefs; Can require political beliefs be taught and tested Barnette o Children of the religious organization had been expelled from school for failing to salute the American flag. o Holding: Making it compulsory for children in the public schools to salute the flag violates the First and Fourteenth Amendments. 1st: Invades the sphere of intellect and spirit which it is the purpose of the First Amendment to reserve from all official control. 14th: Freedoms of speech and of press, of assembly, and of worship are susceptible to restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. In the Gobitis case, the State may "require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country." Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan. o Prof: The school can tell you information and test you on it (can require understanding), but cannot require shows of affirmative belief. o Prof: It is constitutional to require patriotism in the curriculum It would be permissible for the state to adopt a mandatory anti-Chinese policy in schools Think especially back to WWII, when the US argued that its way (not Hitler/Japan) was the best Policy considerations may weigh against adopting such a policy, but it would be constitutional to do so in the name of patriotism N.C.G.S. 115C-81(g) i. Local boards required to order the teaching of the nation's founding and related documents during high school (Decl. of Ind., Constitution and its amendments, and the most important of the Federalist Papers) ii. Also allowed to put up documents (Const., Justinian Code, 10 Commandments) iii. The main point of this statute is that state can set up a curriculum encouraging good citizenship 1. Boger notes that most challenged curriculum are upheld by the courts, even if the cases we look at imply otherwise Intellectual socialization: political content and inappropriate literature Cannot ban educational content out of bigotry; 13

Can ban b/c of vulgarity of inappropriateness; First Amendment right to information Pico (1982) o In brief, we hold that 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. There is a right to information (i.e. the 1st Am. right of free speech also includes a right to learn/listen) Motive of the school board in removal is key (this is the actual holding of the case) All justices would agree with Rehnquists sentiment that school board cannot remove all books by black or Republican authors If the school board removes the books because they find them to be vulgar or educationally inappropriate, this would be constitutionally permissible o On an exam, if you have to give advice to a school board on an issue like this, shield your opinion by noting the inconclusive status of Pico Can mandate student activity outside of school that serves rational education interest; Pierce right (to control your childs upbringing) is fundamental, but it gets rational basis review for practical reasons Herndon o Parents argument is that schools can control curriculum for in school time, but regulating it for out of school time is unreasonable o Pierce right is fundamental, yet it gets rational basis review Rationale: strict scrutiny would handicap school systems o School system passes rational basis review here Legitimate state interest: promoting citizenship Rationally related means: this seems to rationally promote citizenship The schools authority to constrain the independent expression of students and teachers Test (Tinker): Does the speech materially and substantially interfere with: o (1) the operation of the school, o (2) other students rights, o (3) school work and discipline Can prohibit speech that will substantially and material interfere with instruction Tinker o Students suspended for wearing black armbands to protest Vietnam war. o Holding: 1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. 14

2. First Amendment rights are available to teachers and students. 3. Tinker test: does the speech materially and substantially interfere with (1) the operation of the school, (2) other students rights, (3) school work and discipline Before the school can act, the school must have reasonable apprehension of some trouble. This means that the school must have some evidence that a material and substantial interference will occur Prof: Basically, are these fighting words? Are you going to provoke your audience? It matters how fight-prone your audience is. o Materially = this goes to whether it affects the schools processes (i.e. operation, other students rights, school work/discipline, see above) Ex. a tussle in class might be material, while a similar fight on the playground might not o Substantially = this goes to the size of the disruption Ex. Someone telling you your armband looks crummy is not substantial; a fist fight over the armband sending many to the hospital is substantial The school's authority to maintain (and inculcate the value of) physical and educational order Can prohibit obscene conduct in school, even if not outside school, because inculcation of the values of decency are legitimate educational tasks; This prohibition is not too vague, as long as the sanction is not too drastic; Supplements Tinker (substantial and material disruption OR obscene conduct) Fraser o Highly sexual high school nomination speech; punished in a number of ways o Holding: 1. Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language, as well as limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children, Ginsberg v. New York. 2. There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. The schools disciplinary rule proscribing "obscene" language and the pre-speech admonitions of teachers gave adequate warning to respondent that his lewd speech could subject him to sanctions. 15

o Tinker: Was this a material disruption? The setting was a forum to speak before the student body, which is bound to involve some interaction. But by the same token, doing this in front of the entire school probably changes the calculus. If he was doing it in the locker room, probably not as big a deal. Probably could not have expelled him the ct might have had a due process problem with that. Rule: If the student is speaking under the auspices of the school, you can hold the student to a higher standard. Prof views this as an amendment of Tinker. The Court was sure to note that a necessary part of this inculcation is teaching tolerance for divergent political ideas [like those in Tinker] But the Court also made clear that the political messages from Tinker were distinguishable from the sexual messages here Can regulate content in an educational setting in a reasonable manner but only when the regulation has a valid educational purpose; Not using Tinker - school newspapers are not public forums part of curriculum Hazelwood o Principal edits school newspaper for fear of identifying anonymous people. o Held: Students First Amendment rights not violated. The school newspaper here cannot be characterized as a forum for public expression. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. o Not using Tinker: Public forum: spaces owned by government (streets); gov has a hard time limiting speech in those areas (no content-based restrictions) Limited public forum: gov may decide whether free speech applies; if so, they get same rights as public forum; this is not a public forum case, this is an educational activity so the school can regulate content in a reasonable manner but only when the regulation has a valid educational purpose. Even when student speech is ambiguous, if it hints at illegal/immoral activity, schools can regulate Morse o At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating "BONG HiTS 4 JESUS," which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event 16

-- respondent Frederick -- refused, Morse confiscated the banner and later suspended him. o Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. (a) Frederick's argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district's student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school. (b) The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. (c) A principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker, the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment, that student expression may not be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school". The Court in Fraser, however, upheld the suspension of a student who delivered a high school assembly speech employing "an elaborate, graphic, and explicit sexual metaphor". Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. This Court reversed, holding that the school was "within its permissible authority in imposing sanctions . . . in response to [the student's] offensively lewd and indecent speech." Two basic principles may be distilled from Fraser. First, it demonstrates that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. In school, however, his First Amendment rights were circumscribed "in light of the special characteristics of the school environment." Tinker. Second, Fraser established that Tinker's mode of analysis is not absolute, since the Fraser Court did not conduct the "substantial disruption" analysis. Subsequently, the Court has held in the Fourth Amendment context that "while children assuredly do not 'shed their constitutional rights . . . at the schoolhouse gate,' . . . the nature of those rights is what is appropriate for children in school" and has recognized that deterring drug use by schoolchildren is an "important -- indeed, perhaps compelling" interest. The "special characteristics of the school environment," Tinker, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Tinker test isnt meet, but with the Fraser add-on it might be; probably not Hazelwood (public forum). 17

Multi-Culturalism and the Obligations of Education in a Diverse Society When prompted by educational concerns, school officials have the discretion to remove a symbol that bears the schools stamp of approval a. Holsinger i. Facts: school principal eliminates school mascot after receiving complaints from black parents/students; other students/parents say that this was censorship ii. Issue: can school officials dissociate themselves from controversial speech even though this limits student expression? iii. Court held that the school officials could constitutionally remove the mascot 1. The officials had educational concerns for removal (presumably the adverse effects this would have on black students) so this is permissible 2. The court also stressed that a mascot bears the stamp of the schools approval a. While school may have to tolerate student speech, it does not have to promote it 3. Court notes that decision to remove is discretionary, not mandatory b. So the school could probably retain Johnny Reb (so long as no racist motivations for doing so) Racial discriminatory motivations for the suppression of ideas violates 1st Amendment b. Turnipseed iv. White members of committee refused to rate the book in question (this is a deviation from normal procedure) v. Court took the fact above and concluded that this showed a racial discriminatory purpose (which the state could not refute) 4. Since the books rejection was based on racial discriminatory motivations, it violated 1st Amendment 5. NOTE: if state had been able to show that it had rejected the book based on the procedural and technical standards it used for all books, perhaps this would have been different c. Monteiro vi. Black parents/students claimed that the school districts mandatory requirement of reading two books containing n-word violated the Equal Protection Clause and Title VI 6. Parents/students alleged that students suffered psychological injuries from these required readings b/c of the presence of the n-word [Huck Finn and A Rose for Emily] 7. Parents/students also claimed an injury based on schools refusal to take action in response to complaints from students re: incidents of racial harassment at the school vii. Court holds that, although these books do contain a lot of offensive language, it is not discrimination under the Equal Protection Clause to assign (and refuse to remove) a literary work determined to have intrinsic educational value by a duly authorized school authority 8. Court is very concerned here about giving parents a veto power over books (because almost every book has something conceivably controversial in it) 18

9. Court also notes that this decision does not address the issue of a teacher who has racist motivations in implementing a curriculum here the assignment of the books was truly based on the books educational value School disciplinary proceedings: Do students have Fourth Amendment rights at school? Teachers are bound by 4th Amendment but need only pass a reasonable suspicion standard (grounds for believing search will turn up any ev of any school violation) for violating legitimate privacy rights of students via search; Reasonableness applies to initial justification and scope of search New Jersey v. TLO o Teacher caught girl smoking in bathroom, took her to principals office. Principal searched her purse and found drugs o Issue: was the search unreasonable? o Holding: 1) The 4th amendment applies to teachers. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State, not merely as surrogates for the parents of students, and they cannot claim the parents' immunity from the Fourth Amendment's strictures. 2) Schoolchildren have legitimate expectations of privacy, but school officials need not obtain a warrant before searching a student and they do not need probable cause. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Reasonability Test: o Reasonable at the outset personal observations reliable hearsay criminal profiles unprovoked flight o Reasonable in scope(i.e. the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction) Application of reasonable suspicion to TLOs facts Vice principals initial search of students purse was reasonable (based on smoke in the bathroom) VPs second search was equally reasonable (upon finding rolling papers, reasonable person would know these are indicative of drug use) Problem: the reasonable suspicion standard only applies to school officials (including school security); the probable cause standard applies to police at school But police/security/teachers usually all do the searches together now so what standard applies? o Dissent: 1) No probable cause to continue searching purse after cigarettes were found 2) Any school violation standard too broad 19

Can conduct suspicionless, nonindividualized searches if narrowly tailored to address a particular concern; Circumstances may limit privacy interest and invasion Vernonia o Drug culture began taking over a school. Athletes were the leaders. Drug use increases the risk of sports injury. School issued blanket policy of random drug testing for all student athletes. o Issue: Ct in TLO held schools do not need probable cause, but it that case it was an individualized policy. This is a blanket policy. o Holding: Sure No real privacy invasion 1) Being on a sports team involves sacrificing privacy and subjecting yourself to regulation 2) Urinalysis testing involves the same sacrifice of privacy as using a public restroom Invasion justified Narrowly tailored to student athletes because of particular concern about sports injury o Three Part Balancing Test 1) Students reasonable expectation of privacy and 2) the intrusiveness of the search against 3) the governments special needs Can conduct suspicionless, preventive searches as long as a widespread social problem exists and there is some ev it exists at the school Earls o Drug testing for *all* extracurriculars. o Holding: still ok Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress they have a stronger expectation of privacy than the Vernonia athletes. This distinction, however, was not essential in Vernonia, which depended primarily upon the school's custodial responsibility and authority. In any event, students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes. The invasion of students' privacy is not significant, given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put. The need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Given the nationwide epidemic of drug use, and the evidence of increased drug use in the citys schools, it was entirely reasonable for the School District to enact this particular drug testing policy. Searches in schools Tiers of Protection 20

o Fourth Amendment Protects against unreasonable searches and seizures Requires probable cause for a warrant o Tiered set of protections Warrant: So judicial branch must get involved Obtained from magistrate, who must agree that there is some probable cause warranting the search (pardon the pun) Probable cause: This exists when known facts/circumstances are sufficient to warrant a person of reasonable prudence to believe that contraband or evidence of crime will be found To use the probable cause standard alone, there must be some practicality keeping the police from obtaining a warrant If the police seize evidence without probable cause, it will be dismissed under the exclusionary rule Reasonable suspicion: In public school setting, practical interference deemed necessary based on the facts Must be reasonable in its inception Must be reasonable in its scope Reasonable suspicion is a lower standard than probable cause, but its unclear how much lower o The requirement of reasonable suspicion is not a requirement of absolute certainty: sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. o I would argue that reasonable suspicion requires less facts school officials are allowed to make more inferences o Profs example Gang members wear blue if theyre selling drugs Johnny wears blue Probably no probable cause Reasonable suspicion probably does exist Balancing test: o Legit/Reasonable expectation of privacy o Intrusiveness of the search o Interest of the school Student discipline, punishment, expulsion, and related sanctions: Assuring safe schools and dealing with dangerous students (Due Process v. Pierce) School discipline generally Cannot suspend student for 10 days without providing some due process (notice, explanation of ev, and an opportunity to explain); 21

Because: Student's entitlement to a public education is a property interest protected by the Due Process Clause (protection against arbitrary deprivation of liberty) Goss v. Lopez (1975) o OH law gave no procedural due process for students facing suspensions up to 10 days in cases of misconduct (all that was required was parental notification); suspended children challenge the regulation, saying it should provide more process (hearing) o Compare: same OH law gave procedural rights to students facing expulsion, no such procedures were provided for students facing suspensions of up to 10 days in cases of misconduct o SCOTUS holds that for procedural due process purposes, a child has a property right in education o Court also held that there was a liberty interest involved here (i.e. the students interest in her reputation) o How much process is due? Oral or written notice of the charges against him If the student denies the charges, the school must explain to him the evidence it has against him; also must give the student an opportunity to present his side of the story [informal] Court says it will not require hearings to allow students to get counsel, to confront/cross witnesses, or to call his own witnesses o Argument for more process for suspensions Potentially biased principals This process is just formalism (predetermined outcome) o Argument for less process? Strong interest of administration is to maintain discipline/order [especially after Columbine] o What Goss doesnt cover Goss does not tell what procedure is required for suspensions more than 10 days that dont cause expulsion Goss court also notes that there may be unusual situations, although involving only a short suspension, [requiring] something more than the rudimentary procedures o Dissent: laments that federal courts are getting involved in discipline when this matter is best left to the discretion of good principals and teachers o Exam note: for student discipline question, run through regular procedural due process analysis; but Goss tells you what to put in on some parts (i.e. clears up there are property/liberty interests) NOTE: governments interests in the Mathews test may be much stronger than before in a post-Columbine world NOTE: n.4 on p.345 has interesting discussion of whether due process is due for depriving extracurricular activities [doesnt provide an answer, but this is the kind of stuff he likes to ask] Corporal Punishment N.C.G.S. 115C-390: Teachers may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. 22

o Shall not be administered in a classroom with other students present and in the presence of another teacher. o Students must be informed beforehand what type of conduct generally results in corporal punishment. o Student must be informed of the reason beforehand. o Parents must be notified. Can issue corporal punishment without pre-due process because civil law covers excessive use and it would overly burden its use; Post-due process is suing for battery Ingraham v. Wright (1977) o FL law/local school bd. regulation allows corporal punishment for discipline; students here challenged the use of corporal punishment against them, saying that it violated 8th Amendment [cruel/unusual] and 14th Am. [PDP] o NOTE: One student here was paddled 20 times for being slow to respond to his teachers instructions this paddling caused a hematoma that kept him out of school 11 days; the other kid was paddled on the arm for minor infractions paddling depriv[ed] him of the full use of his arm for a week Point of inserting these facts SCOTUS was not swayed by bad facts in these situations o SCOTUS rejects Ps 8th Am. argument [8th Am. affords protection in the criminal context, not in the school disciplinary context] o SCOTUS on PDP SCOTUS agrees that there is a liberty interest in freedom from bodily restraint and protecting bodily integrity Court says the process you get here is post-deprivation process [not predeprivation process] So basically, if you feel youve been wronged, you sue [this is the classic remedy for battery] You do not get a hearing before a paddling Court says that the fact that the teacher knows she could be sued will afford enough protection NOTE: teacher will be protected if its a good faith mistake Court is reluctant to step in here because public school teachers/administrators were privileged at common law to inflict corporal punishment reasonably necessary for the proper education and discipline of the child Court is basically deferring to school authorities on this issue [depth of their deference is shown by unwillingness to step in despite bad facts] o NOTE: Goss and Wright dont challenge the punishment itself they challenge the process involved in punishment So if you get a question about corporal punishment or any other excessive punishment, note that the relevant issue is process [deal with breadth of punishment as a sidebar] see n4 p350 if needed The Schoolhouse Rights of Employees The schools authority over teachers and their academic choices: 23

Academic freedom in elementary and secondary schools (Teachers Freedom of Speech vs. Pierce) Academic freedom is usually said to concern freedom of inquiry and research, freedom of teaching, freedom of extramural utterance/action (i.e. actions out of school) Cases are very divided on this issue; no developedcoherent body of constitutional doctrine yet One thing is well established: teacher cannot transform their courses into something other than what the schools administration intended them to be It is often difficult, however, to determine whether a teachers changes abandon the curriculum (i.e. is abandoning the requirement of 25 plays in favor of an in-depth look at 12 plays an abandonment of curriculum?) School board and principal can prohibit teachers from using certain books, even when the motivation is purely political; Probably cannot prohibit the books from simply being mentioned in class Cary v. Board of Education o Teachers taught high school language arts classes; board banned 10 books from use in the classes, prohibiting the teachers from assigning books that they had used previously; teachers subject to dismissal if they teach the listed books Teachers claim this policy violates their 1st Amendment rights (they want to be able to supplement what the Board prescribes) o Holding: The court held that the board had a right to prescribe the curriculum and the principal textbooks used in the courses Teachers do have some rights of academic freedom rooted in the 1st Amendment, but the board has the right to set the curriculum NOTE: Keyishian v. Board of Regents (385 US 589, cited in Cary) supports notion that teachers have a 1st Am. right to academic freedom The board was acting within its rights to set curriculum in omitting the books, even though the decision was a political one influenced by the personal views of the members Furthermore, no idea is really excluded by this policy Board did not prohibit mention of these books in class; ban was only on extended reference/use in class Furthermore, the list of permissible books was so substantial that no viewpoint/idea was truly excluded Takeaway: although teachers have right to academic freedom, that concept does not extend to choosing curriculum (which includes choosing what books will be extensively taught); academic freedom does extend Also significant here is that the school board had a preexisting policy contrast this with Parducci below Principal cannot prohibit a text unless it will cause a material and substantial disruption; Different from right to prescribe curriculum standard in Cary; Difference explained by lack of existing ban on the text Parducci 24

o Although the principal conceded that the teacher did a good job and had received a favorable evaluation from him, she was dismissed for assigning a short story that the principal and the associate superintendent of the school district considered "literary garbage." o Holding: The court reviewed the story and found nothing that would render it inappropriate for high school juniors. The court also found there was no material and substantial threat of disruption that interfered with the reasonable requirements of discipline in the school because of the story's assignment. The court concluded that the teacher's dismissal constituted an unwarranted invasion of her First Amendment right to academic freedom. The court stated that it could not find any substantial interest of the schools that would have been served by giving the board and school officials unfettered discretion in deciding how the First Amendment rights of teachers were to be exercised. The court ordered the board to reinstate the teacher for the duration of her contract. o Prof: This case is an outlier. Probably wouldnt go this way today. o Note that there was no formal curricular policy on this subject prior to Ps actions o Overall trend in these cases If the school board already has a policy regarding the curriculum, then the teacher is likely to lose; on the other hand, if the school authorities act in the absence of a general policy after the teacher has acted, then teacher may be more likely to win Prof says that this trend may be going more towards Cary overall Overall trend might not apply in 4th Circuit (Boring) Speech made strictly in course of duty is not protected Garcetti v. Ceballos o ADA talks to D counsel. Wants to point out error in warrant (whistleblower) but cant. Principal and school board can regulate curriculum (Hazelwood); Curriculum = all planned schools activities, including plays Boring v. Buncombe County Board of Education o Plaintiff teacher was a high school teacher who taught an advanced acting class. She selected a controversial play to be performed by her students in a state competition. The principal ordered that the play be performed with certain material deleted. At the end of the school year the principal requested the transfer of plaintiff, which transfer was approved by the superintendent and the school board. Plaintiff filed an action against defendants, principal, superintendent, and school board, claiming that the transfer was in retaliation for her expression of unpopular views through the play and was in violation of her free speech rights under U.S. Const. amend. I. o The court held that the play was part of the school curriculum and did not present a matter of public concern protected by U.S. Const. amend. I. o The court also held that the school administrative authorities had a legitimate pedagogical interest in the makeup of the curriculum of the school, including the inclusion of the play. Definition of curriculum: all planned school activities including courses of study, organized play, athletics, dramatics, clubs, and homeroom program. This being a public school does not give the plaintiff any First Amendment right to fix the curriculum she would not have had if the school were private. 25

o Prof: The curriculum is always a legitimate pedagogical concern, and the school system can do what it chooses about it. Concerns that school might abuse this right by stripping texts of references to minorities. o Prof thinks she has a due process claim because at every step along the way she asked permission. Also thinks teachers who choose famous but controversial plays should be protected. o See Hazelwood. Principal censored high school newspaper. If there is any rational reason to censor curriculum, its ok. So in this case, if its curriculum, the burden is very low. o Boger says a Tinker analysis would have been more appropriate (i.e. did Boring substantially and materially disrupt the school?) Hazelwood doesnt apply (Im not sure why; maybe because she wasnt insisting on doing the play; she asked permission) Pickering/Connick doesnt apply because shes not criticizing the school

Teachers as Public Employees and Citizens Rights of public expression Restrictions on who can teach Can restrict teacher qualifications based on alienage b/c teachers serve a gov function Ambach v. Norwick (1979) o NY law prohibited aliens from teaching in public schools unless they showed an intent to become a citizen (or if there was a severe shortage of teachers); two highly qualified aliens who did not intend to become citizens challenged this law on equal protection grounds o Rule: teachers serve a governmental function; thus a classification based on alienage in this context is submitted to rational basis review Alienage is given different scrutiny in different contexts Non-governmental functions (ex. welfare benefits) o Strict scrutiny Governmental functions o This means that the job is important to the nature of how we govern ourselves (i.e. definitional choices of who we are and how we operate) Note that this will usually be limited to legislative, judicial, and executive policy decisions So toll booth operator, who doesnt make these choices, could not be based on basis of alienage; but director of transportation, who does make these sorts of decisions, could be based on alienage Rationale for treating teaching as a governmental function The role of public education and the degree of responsibility/discretion teachers possess in fulfilling that role Teaching goes to the heart of representative government o Preparing individuals for citizenship o Preserving societal values 26

o Inculcating fundamental values necessary to maintenance of political system Plus, teachers have wide discretion in way material communicated o Bring personal quality to achieving goals, sets example o This applies to all teachers, not just civic teachers Some may criticize this rationale Some subjects arent about citizenship at all (Spanish lady could teach Spanish better) Plus teachers dont really have that much control over the curriculum anyway Teacher as Citizen Speech and Association

o Teacher Loyalty and Associational Rights, Citizen Rights Before 1950, teachers could be removed if they didnt sign loyalty oaths After 1950, SCOTUS become uneasy about loyalty tests Although the tests havent been officially struck down, they have been held to be overbroad o See, e.g., Shelton v. Tucker (trying to weed out members of NAACP) o Contra: NAMBLA case from NY (ct says membership too disruptive) Citizens generally have broad 1st Amendment rights, especially when speaking re: public figures Sullivan: SCOTUS says that if you are a public figure, its not enough to show libel if the statement was false or even negligently false Under Sullivan, the statement mustve been made either with knowledge of its falsity or with reckless disregard for the truth o This provides a broad shield for speech o Query: does Sullivan standard similarly protect a teacher? Answer: there are different standards for teachers; you have to run through the Connick/Pickering tests (see below) Teachers Speech About/Effecting Employer o Preliminary matters Pickering issues only come up if teachers are criticizing the school if teacher support Commies, that doesnt involve criticism of school, so dont do this test Prof said something to the effect that the Pickering test only applies if the school admits they fired teacher for her speech (i.e. the speech was worthy of dismissal) Theres another situation where the employee says that she was fired for her speech, but gave another pretext [Mt. Healthy v. Doyle] you might also do this test if you run through the Pickering test and find that she was fired for protected speech Teachers cannot knowingly or recklessly make false statements; 27

Teacher's interest as a citizen in making public comment must be balanced against the State's interest in promoting the efficiency of its employees' public services Pickering o School board fires teacher for writing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs. o At a hearing the Board charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the Board and school administration. The Board found all the statements false as charged and concluded that publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and that "the interests of the school require[d] [appellant's dismissal]" under the applicable statute. o Holding: 1. "The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian. The teacher's interest as a citizen in making public comment must be balanced against the State's interest in promoting the efficiency of its employees' public services. 2. Those statements of appellant's which were substantially correct regarded matters of public concern and presented no questions of faculty discipline or harmony; hence those statements afforded no proper basis for the Board's action in dismissing appellant. 3. Appellant's statements which were false likewise concerned issues then currently the subject of public attention and were neither shown nor could be presumed to have interfered with appellant's performance of his teaching duties or the schools' general operation. They were thus entitled to the same protection as if they had been made by a member of the general public, and, absent proof that those false statements were knowingly or recklessly made, did not justify the Board in dismissing appellant from public employment. o Prof: Test (false statements) (1) Is this a matter of public concern? (Connick) Determined by subject of comment, not forum Whether the subject touches on a matter of public concern or is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal. Ex. If the school has a policy against teachers wearing brown shoes, and teacher spoke out against this, this isnt a matter of public concern Ex. a criticism of the curriculum would be a matter of public concern [Cox] (2) If yes (now go to Pickering), is it false? (3) If yes, is it knowingly or recklessly false? (4) If yes, not protected. o Test (true statements) (1) Is this a matter of public concern? (2) If yes, is it true?

28

(3) If yes, does making that fact public undermine the bosss efficient operation? Does it undermine the superior/subordinate relationship (harmony of workforce)? (4) If yes, not protected (Sullivan) Although, even if teachers statements were true or negligently/innocently false, teacher may lose; still must balance against govs interests [govt will win if its interest is very important]

Criticism of the curriculum is a matter of public concern Cox v. Dardanelle Public School District o The teacher had spoken out on numerous occasions concerning the administration of the school where she taught. The teacher was sometimes in disagreement with the school's new principal. The teacher, along with two other teachers, filed a grievance with the principal concerning the educational process in their school. All three teachers were sanctioned in some way by the end of the school year. o Holding: The court affirmed and found that the teacher's expressions were protected by the First Amendment on the basis that (1) a significant portion of the teacher's speech, concerning the superintendent's administrative style, was of public concern; and (2) there was no evidence that the teacher's criticisms introduced discord into otherwise harmonious relations with her colleagues, affected her teaching, or aggravated her relationship with the principal. The court concluded that the district court's findings were not clearly erroneous that (1) the teacher's speech motivated the board's decision not to renew her contract; and (2) the grounds advanced by the board for not renewing her contract were pretextual and insignificant. Grounds and procedures for firing teachers (Due Process) a. NCGS 115C-325(e) i. After a probationary period, teacher receives career status [then you can only be discharged for certain enumerated grounds, see NCGS 115C-325(e) (1) below] ii. During the probationary period, teacher can be discharged for any reason [or even no reason at all] at end of your probationary term 1. But if probationary teacher has a contract, he cant be discharged except for the enumerated reasons iii. Note: procedures exist to get teachers out of classroom immediately iv. Penalties possible: suspension without pay, discipline without pay, suspension with pay b. 115C-325(e)(1) [Grounds for dismissal of career employees] i. (a) Inadequate performance i. (b) Immorality ii. (c) Insubordination iii. (d) Neglect of duty (neglect of duty to be a role model) iv. (e) Physical or mentally incapacity v. (f) Habitual or excessive use of alcohol or controlled substance vi. (g) Conviction of felony or crime of moral turpitude (Barringer involved a misdemeanor only) 29

vii.

(h) trying to overthrow govt

o For your first 3 years, board can renew you as a teacher at the end of the year and can do so or not as long as there is a rational basis (but cannot be a political decision). If they want to fire you in the middle of the year, you have the same protections as a tenured teacher. But at the end of the year, only rational basis. Fourth year you become a tenured teacher. o Personnel file: can only use info from their file that is less than three years old (some exceptions). o Very narrow grounds for dismissal. Demotion is defined as cutting someones pay, not their responsibilities. o Barringer is one of three cases that deals with immorality. The immorality prong is not insufficiently vague (thereby depriving petitioner of fair notice) when the act is obviously immoral Barringer v. Caldwell County Bd. of Education o The teacher approached the entrance of a pool room one afternoon armed with a shot gun, fully loaded with a shell in the chamber, and he also carried a loaded pistol partially covered by his jacket. o Court holds that teachers have a duty to be good role models and to not be immoral; there is not way that this teacher could have thought his conduct was moral/being a good role model NOTE process for dismissal Superintendent recommended dismissal Committee formed, recommends dismissal Board took up matter, recommended dismissal o School board makes the judgment ultimately Immorality This is fairly broad (would it be immoral to live with someone out of wedlock? Etc.) It raises issues of whether teachers really have privacy Procedural due process - School disciplinary/termination decisions Procedural due process generally [NOTE: he stressed this so much in class Im sure it will be on the test] i. Government has the obligation to provide process before it deprives a person of life, liberty, or property 1. So basically a right to have govt not take an action w/o some sort of procedure 2. Rooted in 5th and 14th Amendments 3. NOTE: this only applies to state action [shouldnt be a big problem in education law; state is almost always an actor but beware of private school questions] ii. Rationales 1. Instrumental a. Avoiding unjust punishments; avoiding factual errors; reaching more accurate conclusions 30

b. Process can even be valuable if something is done in plain view, because eyes can deceive 2. Intrinsic c. Keeping procedures fair; value in being part of the process d. Ex. even if we know you possessed cocaine, process may reveal that the police illegally searched your house iii. Two step test for procedural due process 1. Step 1: is there a protectable liberty or property interest? [if not, no process is due] 2. Step 2: what process is due? Step 1: is there a protectable interest? 1. Property e. f. SCOTUS defines property broader than personalty and realty Entitlements i. These arise by statute or contract or otherwise [could be something informal like the quasi-tenure system in Sinderman ii. n] iii. P must have a reasonable expectation of continued receipt of the interest [Roth]; conversely a mere hope or expectancy is not enough [Roth] iv. Loudermill: govt defines entitlement, but the Constitution defines the amount of process due 1. Bishop: look at how state actually applies the law; not what the ordinance/law might say v. State can prevent a property interest from being created by making it clear to employees that they have no reasonable expectation in their job continuing (employment at will) 1. Arnett v. Kennedy (1974) [Rehnquist: property interest in job is the only what statute provides; 6 justices appear to reject this view] 2. Bishop v. Wood (1976) [As a matter of state law, P held job at will and pleasure of city; therefore he had no property interest 3. Cleveland Board of Ed v Loudermill (1985) state only gets to determine if there is a property interest (i.e. state can decide if employee is an employee at will or has continued employment) Liberty a. b. enumerated) c. v. Liberty from bodily restraint Constitutionally protected liberties (enumerated and not State created liberties (drivers license)

iv.

2.

Step 2: what process is due (Mathews balancing test) 1. Issues that might pop up in this context: 31

a. What type of notice? What type of hearing? What procedural safeguards? Right to an attorney? Timing of hearing? What standard of proof? Who decides? Etc.? 2. Balancing test [Mathews (1976)] b. Importance of private interest [Why is P concerned? What is his interest? What is he trying to protect by getting more process?] c. Importance of government interest [usually keeping costs down] d. Value of additional process i. Will more process increase the accuracy of the fact finding? ii. Sometimes it will [is this person qualified to serve on a nuclear regulatory commission?]; sometimes it wont [is this person legally old enough to drive?] Applications of procedural due process in education cases Gilbert v. Homar (1997) o University suspended security guard with pay and converted him into groundskeeper until matter is resolved; the criminal charges against him were later dropped, so he challenges his suspension as not lacking PDP (wanted a pre-termination hearing; notice/opportunity to respond) o SCOTUS holds for university Private interest Not as strong as Loudermills (who was fired); here he was suspended w/o pay, not fired Govt interest dont want police at college dealing drugs Value of additional process: Purpose of pre-suspension hearing (to assure there are reasonable grounds) has been assured by the arrest and filing charges o Need to find out exactly when youd apply PDP in our cases [the heading to this section mentions termination and discipline] o OVERALL NOTE on PDP: its very flexible, fact specific (see Homar) No right to pre-dismissal process when there is no property interest in ones job Roth o Teacher gets a one year teaching contract. Middle of the year, a large number of African American students are expelled and teacher speaks out against this. He was not retained and was given no explanation. 99% of professors were retained. o Issue: Were his free speech rights violated (was he fired because of what he said)? He received no due process? o Holding: He only had a one year contract, so he had no property interest in the job. o Prof: He wanted the school to give reasons for his firing. If the school had said, We fired you because you spoke out, then he would win. If he sued on free speech, they would have had to give reasons, but he says I shouldnt have to do all that. He didnt want to have to good to federal ct to get an explanation the legal burden was his due process arg. 32

Basic due process test o Is life, liberty, or property being taken? o If yes, then some amount of process is due. How much is governed by Matthews test: Interests of individual Interests of gov Educational Access, Equity & Adequacy The contemporary look of school desegregation litigation: "unitary status" and residual federal judicial remedies History Early Efforts o NAACP legal campaign demands equality in segregated schools eventually challenged Plessy o Brown v. Board (5 cases) Court presented with evidence of inequity and the inherent inequality of segregation A short, powerful, legally enigmatic opinion Doesnt tell us how to desegregate; doesnt even tell us what desegregation is o Brown II Addresses the remedial challenge Hands the problem to the federal district cts., with goal of desegregation with all deliberate speed heavy resistance VA closes school systems to avoid desegregation 98 Congressman call Brown illegal; call for Warrens impeachment Mass demonstrations o 1964 Civil Rights Act gives DOJ power of enforcement, to litigate o Title VI said no discrimination on basis of race o 1965 ESEA requires schools to comply to get money The Peak of Desegregation o 5th Circuit decided en banc what must be done in every district in the circuit o An aggressive posture ending de jure discrimination Good faith desegregation efforts not enough; Court wants results Green v. County School Board (1968) o Facts: previously the school system had two schools, segregated by decree; after Brown, the school adopted a freedom of choice plan, but informal pressure kept the schools segregated 33

o SCOTUS gets fed up with the delay tactics; demanded that schools make progress towards integration in six areas Students Faculty Administration Facilities Transportation Extracurricular activities o Without progress in these six areas, desegregation cannot be present in that system (and thus a constitutional violation) If there has been a constitutional violation, then the school board has an affirmative duty to end racial segregation root and branch Court no longer interested in good faith efforts to end desegregation; Court is only focused on results Gave courts the authority to order desegregation remedies Swann v. Charlotte-Mecklenburg Bd. of Educ. (1971) o Swann involved applying the Green factors in a large metropolitan area o SCOTUS held that district courts had the power to order certain desegregation remedies if it felt them necessary to meet the problem of segregation District courts have broad authority in crafting appropriate remedies (remedy must be broad enough to meet the problem) Court noted that sometimes bizarre or awkward remedies would be needed District courts even can use quotas as a starting point to show that desegregation is needed (although quotas cannot be used as an ending point) Basically court said racial balance can be used a proxy showing end of segregation, but it is not necessary to end it in this manner Ending de facto discrimination in schools The North presented special problems because de jure discrimination never existed (only de facto) Keyes o District has de facto segregation, but not by law o SCOTUS says even if theres no statute establishing racial segregation, if the state engages in practices showing an intent to discriminate, then it has violated Brown and the court has full power to act o If segregation is a substantial part of the system, court assumes that the entire district is segregated; this allows the district court to fashion remedies based on the entire district (opening the door for litigation outside of the south) Intra-district vs. inter-district remedies Ct can only order remedies for specific districts with segregation problems Milliken (1977) o Detroit has many small school districts within the metropolitan area; the district court orders a broad, Swann-like remedy over a large area; this remedy was unique because it crossed districts (inter-district remedy) 34

o SCOTUS held that an inter-district remedy is only appropriate upon a showing of an inter-district problem So if the bad actor is confined to a single district, an intra-district remedy is all that is appropriate This could not be shown in Milliken because it was the state who the bad actor (by encouraging white flight) In Milliken II, SCOTUS notes that if the state truly is the bad actor, its appropriate to make it pay for remedies The end of desegregation (?) o SCOTUS used the law powerfully and intrusively for over 30 years to override local and state governments o Eventually the issue arose: how long should we allow district courts to keep school districts court orders to take affirmative steps to end the effects of segregation? (or, how do you put down a rattlesnake once youve picked it up?) o A growing movement develops in SCOTUS to move from Swanns awkward and bizarre remedies to ensuring more local control in Freeman (by not requiring extreme measures) o Basis for this change in philosophy: the effect of govt segregation diminishes over time (at some point, racially segregated attendance pattern no longer based on govt action but private factors Significance of Unitary Status Declaration Challenging party will then have to prove intentional discrimination to bring another desegregation suit Returning to neighborhood schools is not by itself intentionally discriminatory Compare: while under court order, P need not show intent (just effect) o So whether district is still under court order can have determinative effect, b/c burden is far different Court emphasizes that returning local control is one of the objectives of judicial supervision Dowell (1991) o Two part test (if both met, district may be declared unitary, lifting federal court supervision and returning local control) Good faith compliance with the federal courts decree must be shown Are vestiges of discrimination eliminated to extent practicable? Swann said desegregation efforts had to be done to the extent practicable; this can require fairly extreme measures In Freeman, SCOTUS lowers this standard, recognizing changes in demography Can de-supervise incrementally, as schools desegregate incrementally Freeman (1992) o DeKalb county was under a court ordered desegregation decree; at some point, the district asked to be released; the district had not met all six of the Green factors (still had segregated faculty); district asks to be given unitary status (and thus released 35

from the courts supervision) on all the other factors, and remain under supervision for the factor they had not yet met o SCOTUS holds Its permissible for a school system to be released re: some Green factors and not others Rationale: returning local control is a worthy goal [court reiterates that court supervision has two goals: ending racial discrimination and returning local control] Court recognizes that private factors might upset racial balance; however, 14th Am. doesnt reach to private action Rejoinder might be Moose Lodge No. 107 v. Irvis [state gives a privilege to private group, can set some of their choices] however this may be impracticable in school context o Three part test Has there been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn? Have the vestiges of past discrimination been eliminated to the extent practicable? Will releasing one prong from supervision drive choices in other areas in the future, directly or indirectly (by private choice)? May need to keep one prong that is unitary under supervision in case there is interaction [i.e. maybe staff problems are causing white flight; then you might keep supervision to ensure student population is ok] Scalia and Thomas dont buy into this last prong; this is Souters test in his concurring opinion, but Boger said it reflected the law The remedy cannot be broader than the problem Jenkins (1995) o Court reminds district courts that the remedy cannot be broader than the problem o In KC, there was an intra-district problem, but the court ordered an inter-district remedy (raising teacher pay to attract people who had left the system to come back in) o Dissents argument: this isnt an inter-district remedy, but simply dealing with the reality of the larger market of teacher availability o Also, court added another factor to the six Green factors: low performance of students SCOTUS says that this cannot be used as a Green factor unless you can show that its due to segregation (as opposed to socio-economic status, etc.) o Theme of Dowell, Freeman, and Jenkins: SCOTUS signals that the time has come to end judicial oversight (absent a gross lapse on one of the Green factors) Seattle o The Court held that the districts, which did not operate legally segregated schools, denied students equal protection by classifying students by race and relying upon the classification in school assignments. The districts failed to establish a compelling interest in racial diversity since their plans relied on racial classification in a nonindividualized, mechanical way as a decisive factor, and racial imbalance in the schools was not unconstitutional by itself. Further, the minimal effect the classifications actually had on assignments indicated that other means would be 36

effective to achieve the districts' goals and that the use of racial classifications was unnecessary. Voluntary integration o Issue would it be permissible for a school district to create diversity voluntarily simply because it likes it as a value? o SCOTUS indirectly addressed this issue in dicta in Swann said that school districts on their own could set ratios of integration (but federal courts could not) o The view of affirmative action that arose in the 1980s and later questions the Swann dicta indirectly Croson and Adarand subject affirmative actions programs to strict scrutiny Remedying past discrimination: if the program is not remedying past discrimination, it is not narrowly tailored [remedy must be imposed against entities that have been shown to have previously engaged in discrimination; only people discriminated against can benefit] o Later cases in the education context implied that diversity would not be a compelling interest City cannot show preference for people of a certain race for a transfer program Tuttle (1999) o Rationale for holding: not narrowly tailored (diversity can be achieved without relying on race) o This is before Grutter, so 4th Circuit was skeptical that diversity was a compelling interest o Then came Grutter and Gratz Diversity is a compelling government interest in the university context Grutter (2003) o Court continues to apply strict scrutiny to racial classifications [but uses a very lax version] o Court says that diversity is a compelling government interest in the university context [interesting to note that Court actually didnt inspect this they deferred to universitys judgment that diversity was a compelling government interest] o Justifications for deeming diversity compelling Reduces stereotypes Encourages understanding Leadership must be open to all races (this is especially important in law school context for the court) Better prepares students for an increasingly diverse workforce, for society, and for the legal profession Military leaders say diverse officer corps need for national security o Court allows the university to reach a critical mass o Court in Grutter noted that context matters Is K-12 the same context? o "Race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as 37

practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Race can be considered, but cannot be outcome determinative (i.e. through point system) Gratz (2003) o Each student must receive individuated consideration (no quotas) o What do Grutter and Gratz mean for K-12 o Strict scrutiny, but Grutter notes that this test is not fatal in fact Compelling interest? Yes, using Grutter o Promoting cross-racial understanding, breaking down stereotypes, fostering livelier and better informed class discussions, preparing students to succeed in an increasingly diverse society o Higher attendance rates, declining suspension rates, a safer environment, improving standardized test scores, avoiding the psychological burdens (Lynn) o Benefits perhaps more compelling at younger ages (due to context, student safety and attendance are just as compelling as lively classroom discussion) Narrowly tailored? Gratzs concern about individuation not applicable here (context matters) Not the same in K-12 as in higher ed admissions o Not the same concern about individuating o Not a zero-sum game in elementary school; everyone gets to go [you could work in policy from Leandro that everyone must get a sound basic education, while law school is more of a privilege] if you can exclude someone from law school based on race, it is a lot less injurious to say youre going to exclude someone from an elementary school when they have the right to attend another elem. school just down the street b/c nothing tied to merit, use of race doesnt risk imposing stigmatic harm by fueling stereotypes [people in college might say youre only here because of your race] concern that mechanical use of race may breed racial tension not applicable, b/c race used to integrate, not segregate o Workable, race-neutral alternatives? These plans generally minimally invasive, with thorough appeals process less burdensome on victims, b/c denial of spot in K-12 setting different from the denial of spot in law school plan mustnt unduly harm members of any racial group use of race must be limited in time o No, you need to have an individuated decision, where race can only be one factor 38

Alternative Approaches Wake v. Charlotte o Wake County Race Neutral Approach (based on socioeconomics) Goal of assigning students so no schools have greater than 40% of children in poverty Dont always make these goals, as they dont want to move students every year If schools has more than 25% of children below grade level, move to higher achieving school Estimated that btw 3-7% are being moved for these reasons o Moved in nodes Prof: youve got so many kids coming in, youre going to have to do reassignment anyway o Based on theory that high poverty, low achieving schools get caught in a downward spiral no one knows why exactly why high poverty schools are injurious difficult to keep teachers (accountability system) more special needs But Dept of Ed says you can go to 25, 30, 35% w/o affecting middle class scores. There is a breaking point, somewhere above 40% If the use of neighborhoods as racial proxies eventually is held to be impermissible, what other student assignment options might remain for school boards interested in assuring student diversity? The Wake County, North Carolina school board has recently chosen to rely upon two other demographic factors: (1) "diversity in student achievement (no more than 25% of the students assigned to any school will be performing below grade level on state tests, when averaged across a two-year period);" and (2) "diversity in socioeconomic status (no more than 40% of the students assigned to any school will be eligible for free or reduced price lunch)." Because the average socioeconomic condition of African-American and Latino families in Wake County and elsewhere in the South and nation is lower than that of average white Anglo families, and because their children perform less well on statewide tests, Wake County's student assignment criteria will have the incidental effect of creating a substantial degree of racial and ethnic desegregation, as well. Wake County's twin emphasis on the socioeconomic composition and the academic performance would not appear to raise any significant Equal Protection Clause issues, unless shown to have been adopted as a mere pretext for continuing racial assignments. Distinctions based upon students' socioeconomic status or their academic performance are normally not subject to "strict scrutiny" by the federal courts. The Wake County Board of Education, if challenged, must show only that these criteria are "reasonably related" to "legitimate" state ends. That far lower burden of proof should be easily met, since educational researchers have long noted that both the socioeconomic composition and the academic composition of schools can affect the academic performance of children who attend them - with clear evidence that strong performances become more unlikely in high-poverty schools or in schools with high percentages of low-performing students. The real wrinkle in the Wake County approach, however, is not constitutional; it is political. 39

Some parents in Wake County have already begun to object to any assignment to their children's schools of children from lower income neighborhoods. In March of 2000, two white PTA copresidents attempted to organize resistance to a proposed transfer of sixty-eight poor and low-performing children, all but one of whom were African-American, to their local school. 88 One copresident defended her position, insisting, "I'm not a racist ... . I'm trying to protect my neighborhood school." Although that particular incident ended without turmoil, even greater opposition arose the following year when the school board reassigned some white, middleincome children away from their neighborhood schools to provide socioeconomic and academic balance in lower performing and lower income schools. Although Wake County has not abandoned its plan, public controversy has led the board to acquiesce in somewhat less than full compliance; by mid-year of 2001-2002, the overall student composition in fourteen of Wake County's public schools fell outside of its demographic guidelines. Moreover, the most recent evidence suggests that some white parents are beginning to abandon the public school system in Wake County. Federal Legislative Role Obviously federal Constitution has a big impact on education but federal statutory law also has a big impact on education History of federal involvement in education i. Federal government did not have a lot to do with education prior to WWII (it was a traditional matter of state concern) ii. Sputnik really spurred on the federal role in education iii. Elementary and Secondary Education Act very broad program giving out money Title IV Allows the US Attorney General to litigate to enforce Brown o This law has a lot of constraints: first parent must complain in writing to the AG [if complaint is about college the complaint must relate to admissions], then the AG has to investigate to decide if its a meritorious claim, then the AG has to certify that the individual cannot bring suit himself, then the AG has to determine that the suit will help desegregation, then the AG has to give notice to the school board so that they have time to comply o Private litigants are still allowed to sue Title VI Anti-discrimination rules tied to federal funding o 601: Prohibits programs/activities receiving federal financial assistance from excluding, denying benefits, or discriminating on the basis of race, national origin, or color. Forced federal contractors to write lots of regulations for contractees. o 602: Federal agencies can promulgate regulations that have the force of law and can then withdraw money from entities that receive federal funds if we decide they violate 601. There are 9 steps that must happen. This allows agencies to dictate what it means to deny benefits under a program. Federal agencies are given the job of finding violations Federal agencies that give money are empowered to create regulations to effectuate 2000d (these have the force of law if proper) also President must approve the regulation first in this area

40

If they find a violation, the federal agency can cutoff funding to the program (or part of the program) in which the noncompliance has been found Funding can only be withheld after agency advises the state on the problem and the state has been given an opportunity to comply Threat of fund cutoffs is viewed as an effective weapon against local officials in efforts to desegregate schools Policies which has a discriminatory effect is barred under Title VI (even though no purposeful discrimination) Lau v. Nichols (1974) o So school systems failure to provide English language instruction to Chinese speaking students (denying them a meaningful opportunity to participate in the educational program) violated Title VI [problematic because this isnt really based on race, its based on language] Guardians Association (1983) o Black and Latinos took exams to become cops; they passed but got lower scores than whites, so they were picked last o Rule: If suing under Title VI, 601 must show proof of discriminatory intent If suing under Title VI, 602 (and its regulations) plaintiffs can get injunctive or declaratory relief only (cannot get damages) Significance: 602 (and its regulations) allows for liability for discriminatory effect and intent Implication of limitation to injunctive relief in this case: police would only get their jobs back; would not get damages (back pay) no lawyer would take this case Sandoval (2001) o This case clarifies Guardians, overturns it in part o Facts: AL required that drivers license test be in English; P says this violated Title VI So this is based on Lau-like logic Also note that AL probably didnt intentionally intend to discriminate with this regulation (good reasons for requiring English namely, English signs) o Since theres no intent, P uses the implementing regulations under 602 o Rule: Private plaintiffs can sue under 601, but only after a showing of intentional discrimination Regulations under 602 may prohibit discriminatory impact, but there is no private right of action to enforce these regulations In other words, only the agency can enforce regulations under 602 o Impact of Sandoval: Implied private rights of actions proliferated for a long time Sandoval cut back on the implied private rights of actions if statute does not require intent, there is no private right of action This applies generally Affects Title IX as well 41

Litigants suing for discriminatory effect still have one possible option: sue DOJ to get them to enforce This option has been cut back by the DC Circuit o if you have problems with pres., Congress, agencies, take it to them o Not a categorical no against suing an agency (if the agency is being a bad actor, and not enforcing in bad faith, maybe you can sue) o But you cant sue for saying theyre not doing a good job and we would have different priorities than they have

Castaneda o According to Lau v. Nichols (1974), a case decided by the U.S. Supreme Court, school districts in this country are required to take the necessary actions in order to provide ESL students the ability to overcome the educational barriers associated with not being able to properly comprehend what is being taught to them. Castaneda argued that there was no way to sufficiently measure the Raymondville Independent School District approach to overcoming this barrier. o Test: a three-part assessment for determining how bilingual education programs would be held responsible for meeting the requirements of the Equal Education Opportunity Act of 1974. The criteria is listed below: The bilingual education program must be based on sound educational theory. The program must be implemented effectively with resources for personnel, instructional materials, and space. After a trial period, the program must be proven effective in overcoming language barriers/handicaps. Education and the Disabled Challenge of educating disabled children: o There is a lot of variance in this group; each child has his/her own special needs/problems: e.g. emotional disturbances, learning disabilities, mental retardation, vision, hearing, etc. o A lot of experts are needed to even identify these children (whereas race and gender problems are easily identifiable) o Depending on the definition used, up to 35% of children are disabled o Formerly schools would refuse to school these children (or fail to give proper services to children within the school) o Eventually people began to realize that all children were educable litigation came to the federal courts to make sure they had access Equal protection violation to totally exclude disabled children from the schools Mills o Court held that it was an equal protection violation to totally exclude disabled children from the schools (a prior case from the DC Circuit had held that it violated EP to offer poor kids different education than rich kids, so total denial definitely violates) o NOTE: actually equal protection is only indirectly involved here through the due process clause of 5th Amendment 42

o Court also based judgment on statutory grounds since it was a crime to not send kids to school, court deduces that DC had an obligation to provide schooling (a stretch; statute just requires parents to send kids to schools if schools are available) o Court says that they dont care how much it costs; it just enforces Const./statutes Rehabilitation Act o This is an anti-discrimination statute (cant discriminate on the basis of handicap) analog for the disabled of the 1964 Civil Rights Act Its scope is wider than just education Relevant language Rehab. Act prohibits discrimination against otherwise qualified handicapped person solely by reason of his handicap NOTE: program must be federally funded to come under Rehabilitation Act o How far must an educational institution go in accommodating a disability to avoid a claim of discrimination under 504 of Rehabilitation Act? Davis o Determines the scope of the language that no otherwise qualified handicapped individual can be discriminated against solely by reason of his handicap o Court says that the program can take her handicap into account [i.e. handicap status can be considered as part of the qualifications] o So applicant had to be qualified for the program despite her handicap o Being qualified in every regard except the handicap is not enough o Her argument is flawed what if she was qualified to drive a bus in every regard except for being blind o Court also says that the program does not have any affirmative duty to assist handicapped individual in overcoming their handicap i.e. Davis does not get the person she wanted to follow her around and help her Court reasons that Congress knew how to do this but didnt Court says only evenhanded treatment is required o Court holds theres no need to make extensive modifications to a program to accommodate a handicapped person (i.e. modify program for her) i.e. no need to substantially alter the curriculum (Davis wanted to be able to only have to look) o NOTE: when working in this area, be aware that agencies make regulations (and that the interpretive notes for the regulations matter too) IDEA (Individuals with Disabilities Education Act) o Formerly known as Education for All Handicapped Children Act o IDEA is the primary protection for handicapped children Rehabilitation Act is only used when school has been willful or reckless o Substantive entitlements and procedural protections This statute creates an affirmative entitlement for handicapped children [its not an anti-discrimination statute like Rehabilitation] Two substantive entitlements created Full educational opportunity Free appropriate public education 43

o This includes special education and related services It also requires an individualized educational program [IEP], a plan for specifically designed instruction to meet the unique needs of handicapped children Process [including procedural protections]: Person is diagnosed as handicapped in some regard (either by parents drawing attention to school; or school identifying through testing) If child is found to be handicapped, an IEP is created by a team of people o Membership of team varies - teachers, special education specialists, principal, psychologist, audiologist, etc. o Parents can be on if they want [must be given notice that their child is being evaluated and must be told that they have a right to be involved] IEP team proposes a solution for how to solve the childs problem o Could be as simple as giving a child a hearing aid o Could be more complicated like in Rowley case Parents often disagree with the IEP plan they are entitled to a due process hearing; then o Parents are entitled a due process hearing to challenge IEP in front of an administrative hearing officer [people who propose/oppose plan can talk]; then an administrative appeal; then an appeal to a fed. dist. ct. o A recent SCOTUS opinion places the burden on parents when challenging the IEP Deference to schools decision making Main point about the procedural protections o A determined, well financed parent has a lot of room to litigate o Often the threat of litigation will coerce the school into bending over backward to change the plan I hate my students IEP. What now? Does it totally exclude him from public education? Cant do that. Mills. Appropriate education o Questions often arise as to whether the student is being provided an appropriate education under the statute Rowley cases sheds light on whats appropriate [spoiler: Rowley establishes the educational benefit standard, saying that a child must merely get some educational benefit o Rowley (1982) o Facts: deaf student who read lips well and did well in school; her IEP afforded her a tutor and a speech therapist; her parents challenged, asking for a sign language interpreter in the classroom o SCOTUS holds that a free appropriate education is provided when a student gets personalized instruction with sufficient support to allow the child to benefit educationally from that instruction o So IDEA never promises maximum feasible education (i.e. fulfillment of full potential) 44

o IDEA just promises that child will be get educ. services that get her some educational benefit Making passing grades could qualify as showing educational benefit o Two part test Has the school complied with the procedures set up in the act (i.e. parental notification, IEP team, etc)? Federal courts are very strict on this Has the IEP created through this process provided some educational benefit? This is a pretty low burden o Statute shows a preference for mainstreaming [i.e. place handicapped children in regular classrooms to the maximum extent possible] Previously these children wouldnt have been in school at all or would have been stuck in special classes; theory for mainstreaming is that these children can benefit from being around non-handicapped children (and vice versa) The circuit courts are split on when a child must be mainstreamed; the Supreme Court has not yet addressed the issue CT stresses the importance of mainstreaming Roncker (1983) o 6th Circuit said that if the educational benefits to be gained in a special classroom are only slightly higher than they would be in a mainstream classroom, then the social benefits derived from being in a mainstream classroom favors putting the child in that setting Ct focuses on educational benefits and the disruption of the handicapped child to the learning of other children o Hartmann (1997) o IMPORTANT: court noted that it should defer to the judgment of the school officials and hearing officials o Three part test that comes out of these cases If no educational benefits in mainstream classroom, maybe place him in special classroom If the educational benefit from the special classroom is very small over the mainstream classroom and there is social benefit from being in mainstream classroom, this favors the mainstream Obviously if the educational benefits of a special classroom are much more than the mainstream, you would go with the private classroom Disruption to other students education o Challenging mainstream or non-mainstream placement This issue should be solved during the IEP process; of course, parent can challenge If parent thinks child needs non-mainstream education, then she can put child in a program If she is proven right, state pays; if not, she pays 1. Editorial comment on mainstreaming a. As a matter of policy, I think 6th Circuit is right one of the main reasons for the act was to get these kids in schools; getting them in schools 45

means partly to get them integrated in society; both disabled and non-disabled kids can benefit from this interaction; plus the mainstreaming preference is clear b. Class: lots of pros and con to mainstreaming: getting picked on vs. socialization i. IDEA and related services 1. IDEA promises not only special education but also related services 2. What are related services? c. Irving v. Tattro (1984) SCOTUS says that school must provide catheterization for child who can only go 3 hours without it i. 3 hours of education a day would not have been enough to derive an educational benefit ii. School said they didnt have to do this b/c it was a medical service; SCOTUS basically said that student would not be guaranteed a doctor, but if school nurse could do it, it was required [note: statutory holding, not Const.] d. Cedar Rapids Community School District v. Garret F. (1999) Court interpreted a DOE regulation that excluded schools from having to provide medical services to only exempt them from providing the services of a doctor (if nurse or layperson could do it, then its required) this included full time medical assistance in this case, regardless of cost 1. Honig v. Doe (1988) principal wants to expel disruptive special ed kid parents demand reconsideration of IEP before kid goes before disciplinary committee school argued that reconsideration is not necessary b/c kid is dangerous to others ct held no exception for this kid, school needs capacity to take in-school action remove child for up to 10 days Congressional responses to Honig: 1997 IDEA Amendments if special ed kid brings gun to school, can place him in alternate setting for up to 45 days different from what his IEP says (when student with disabilities has sold drugs, serious assault, or weapon on school grounds); and, if student poses an immediate danger

2.

STATUTES A. Handicapped & Special Education in NC 1. 115C-106 State must ensure every child a fair & full opportunity to reach his full potential & that no child shall be excluded from service or education for any reason State must provide a free & appropriate public education to every child w/ special needs 2. 115C-107 all children w/ special needs are capable of benefiting from special education programs they have the ability to be trained & educated 46

3. 4. 5.

6.

7. 8.

115C-108 special education means specially designed instruction, at no cost to parent, to meet the unique needs of the special needs child includes classroom instruction, speech, physical therapy, transportation, etc 115C-109 def of special needs child 110 mandatory services (b) Board must make & keep current a plan for implementation includes: census of kids w/ special needs in the State, procedure for diagnosis & evaluation of each such child, etc (e) each yr, local Board must report to State Board extent to which it is providing special ed for special needs kids (whos in need of services, what services are provided, update) (m) least restrictive environment 113 diagnosis & evaluation (c) referral of a child must be in writing, signed by person requesting diagnosis, setting forth reasons sent to parents, parents must consent to testing if parents refuse, school can proceed w/ DP hearing if child determined to be child w/ special needs, local Board must convene IEP committee w/in 30 days after referral, plan must be implemented w/in 90 days (d) reevaluation must be done every 3 yrs (f) must prepare IEP 115 no cost to parents for placement of child in private school if child placed there in order to carry out IEP 116 appeals (a) prior notice of parents required when school proposes change in IEP (b) mediation is encouraged independent hearing officer decision can be appealed then can take to ct Gender equality and Title IX

A.

14th A & Gender Discrimination 1. arguably doesnt apply to gender issues framers intent argmt meant to free the slaves 2. text all persons no specific mention of race so why not gender? dont go to framers intent if text is clear 3. 2 only male citizens can vote women left out all together so implicit in Constit that its OK to discriminate agst women 4. but no distinction in 1 like that in 2, so equal protection applies to gender 5. intermediate scrutiny important gov ends & substantially related means created in Craig v. Boren - in between strict scrutiny (race, ethnicity) which requires compelling interest & narrowly-tailored means & rational relation (most legislation) Equal Protection Clause i. Intermediate scrutiny 3. Important governmental interest and substantially related means e. Suggests that govt wont be overly passive or active in this area f. VMI demanded an exceedingly persuasive justification [one example of this might be an all male draft] 4. Actual purpose 5. Burden of proof is on the state 47

a.

ii.

6. Archaic/overbroad generalizations can never be the basis for a gender classification (i.e. Hogan) g. This is a means questions 7. Real physical differences between the sexes are permissible Big point gender is treated differently constitutionally than race

Prof on VMI o Sets the constitutional standard, which in this case was higher than title 9. o Intermediate scrutiny for gender discrimination Exceedingly persuasive is current articulation for intermediate test. US v VA (1996) o Admissions policy categorically excludes women, despite separate institution for women which is largely similar o VA arg: this policy 1) serves an interest in educational diversity and 2) protects the adversarial education method. o Issue 1: can VMI be all-male? o Issue 2: Does the alternative institution qualify? o Holding: VMI did not have an exceedingly persuasive justification for excluding those women which were interested in and able to handle the adversative teaching method used there from being considered for admission. Ginsburg (pg. 798): State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed and substantially related to the achievement of those objectives. The justification must be genuine, not invented post hoc, and must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. But all of that is in the service of determining if the state offers an exceedingly persuasive justification for its system of gender line drawing. Prof: Under VMI approach to intermediate scrutiny, it looks like strict scrutiny. The precision with which a legis needs to proceed: not much relaxation from strict scrutiny in the area of over/underinclusion. Ct in VMI didnt allow the claim that only a relatively small number of women were burdened. Instead, ct insists that if there is one woman who can meet the standards, then the state must have an exceedingly persuasive justification to include her. This sounds like the rule must be necessary, which means narrowly tailored a la strict scrutiny. Some say that intermediate scrutiny is on the way to becoming effectively the same as strict scrutiny. Gender-disc and race-disc as relates to aff action: hypo legis wants to pass a law benefiting a racial minority to account for historical, pervasive, societal discrimination and injustice; on the other hand, C wants to pass a law benefiting women for the same reasons. These two scenarios would be tested differently: racial program would get tested with strict scrutiny (Grutter must be necessary for a compelling state interest, and in order to support an aff action law it cannot be broad discrimination); gender program would be more likely to be upheld because the law would only have to meet intermediate scrutiny (prove important interest; prove the program was substantially related to achieving it). This is paradoxical because the paradigm case for the 14th amendment was protecting enslaved African Americans. 48

Title IX o Gender is treated differently than race on a statutory basis as well [much more exceptions in Title IX than in Title VI] Title IX is a discrimination statute just like Title VI Enforcement is similar in Title IX and Title VI (take away federal funding) Title IX is different, because it only applies to education o Intent, not impact Remember that under Sandoval, plaintiff can only sue for discriminatory intent, not discriminatory impact Remember that intent means not only knowing that women will be affected, but wanting this effect to occur [Feeney] o No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except Private undergrads dont have to comply for admissions Religious institutions exempt for religious reasons Military institutions exempt State institutions that have been traditionally single sex There are other exceptions as well BIG NOTE: on an exam, dont ever just use Title IX do at least a short constitutional analysis [because a statute is invalid if it unconstitutional] o Athletics Title IX says a school may permissibly keep girls off athletic teams in contact sports; but is not required to do so Force Court rejects the maximization argument (i.e. keep teams separate because This would probably have passed under rational basis, but its not concrete enough to pass intermediate review o Never been proved that men will try out for womens teams, etc. Holding: school may separate them if its a contact sport She may have lost under title ix, but the gov must also show they have an important interest that is substantially served. Probably an important interest in safety; the means may be substantially related because women are generally smaller and more likely to get hurt. Compliance with the conference rules is not a sufficient cause. Force would have been more likely to prevail if she wanted to box; there are weight classes; concerns with sexual intimacy Pregnancy under Title IX (b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to 49

participate in a separate portion of the program or activity of the recipient. (2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician. (3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the separate portion is comparable to that offered to non-pregnant students. (4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy which such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity. (5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began. Pfeiffer o Title IX bars discrimination on pregnancy but here they said it was due to immorality (premarital sexual activity), not pregnancy [they can do this for immorality b/c of Fraser] o Constitutional as long as both genders were treated similarly with regard to premarital sex, the pregnant student could properly be dismissed from the NHS because "regulation of conduct of unmarried high school student members is within the realm of authority of the National Honor Society given its emphasis on leadership and character." This rule would never apply to men because they will never have to admit to being pregnant What about asking candidates to sign a pledge saying they have never had sex? o Wort: Had proof that a male student had impregnated his girlfriend and was allowed to stay in NHS, but he did decide to marry her. Chipman o Issue: whether the defendant's exclusion of plaintiffs from a high school society because they engaged in premarital sex and were pregnant constituted exclusion on the basis of pregnancy. The defendants argued that they were excluding the plaintiffs not because they were pregnant, but because they had engaged in non-marital sexual relations. The policy included young men and young women who had abortions but defendants conceded that none from these two groups had ever come to their 50

attention. Using both a disparate impact and disparate treatment analyses, the court found that plaintiffs' claim had a high probability of success. Must be educational necessity for testing that has a disparate impact on the sexes; Cannot be sufficient alternative; Isnt this just strict scrutiny for gender discrimination in education Sharif o Scholarship to reward high school students for a job well done based on SAT scores, large # of men received it but very few women did SATs purpose is to predict 1st yr college performance if compare men & women, SAT underpredicts womens perf & overpredicts mens perf in 1st yr of college object of scholarship is to reward high school perf not to predict college perf to meet EP std, need to show discriminatory intent here we have a faciallyneutral statute w/ a disparate impact ct finds constitutional violation (end is legitimate but means of sorting based on SAT is not rationally-related) State must show educational necessity (manifest relationship between use of SAT & recognition of academic achievement in high school) State failed to show reasonable relation between practice & purpose because there are alternatives; moreover, the state had used a better alternative (GPA) o Ct holds comb of grades & SAT will do until something better comes along looks like ct using more of an intermediate scrutiny. Ct holds SAT/grades combo should be the test until something better comes along o Prof: facially gender neutral. Constitution requires proof of intent. So it gets rational basis there must be some non-gender rationale. Judge here says you have to prove intent (under Guardian) if you want damages, but not if Feeney: Veterans get an absolute preference for jobs, despite most being men. Upheld. There is some non-gender rationale. o Prof: This case is history because of Sandoval. School finance movement Priest o Arg based on EP clause: you should strictly scrutinize the difference in educational outcomes for children because 1) poverty, like race, is a suspect class, and 2) education is a fundamental right (the right is distributed differently, so it must be strictly scrutinized). o Holding: 1) poverty is not a suspect class; poverty does not completely deprive of education; poor and rich people live in rich and poor property districts. So in the absence of an absolute deprivation of education, theres no violation. 2) Education is not a fundamental right (despite penumbra arg that so many other rights, like right to vote, are predicated on education). But the ct says we measure fundamentality by whether it is expressly or implicitly mentioned in the constitution. o So now weve got a series of state court rulings because theres an education clause in virtually every state constitution. o What is the purpose of suing for student finance? Youre not just looking for equal dollars for students; equal means what the child needs to get a sound basic education and figuring out how much money each child needs to get their. 51

o Standardized testing helped fuel he movement because they could show disparity in outcomes. Leandro o NC constitution requires general and uniform equal education opportunity, but local municipalities have the right to set their tax rates and can provide funding for their schools. Ct decides to look at more than opportunity and toward results (level 3). Ultimately, it is the states responsibility, not the county, to provide a sound basic education. The state must take over the district if it needs to. o Prof: Ct looks at NC constitution, decides it mandates that NC provide a sound, basic education. Hearings were held and Judge Manning decided they were not receiving a sound, basic education largely because many children were not reaching level 3 on end of grade testing. He also found there were many children were not coming to school ready to learn, and the school district owes those children readiness for learning and therefore some at-risk children are entitled to pre-k. Doesnt have to be any particular program, but something is required. o For purposes of our Constitution, a sound basic education is one that will provide the student with at least: (1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student's community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society. o Although we have concluded that the North Carolina Constitution requires that access to a sound basic education be provided equally in every school district, we are convinced that the equal opportunities clause of Article IX, Section 2(1) does not require substantially equal funding or educational advantages in all school districts. We conclude that provisions of the current state system for funding schools which require or allow counties to help finance their school systems and result in unequal funding among the school districts of the state do not violate constitutional principles. o Because we conclude that the General Assembly, under Article IX, Section 2(1), has the duty of providing the children of every school district with access to a sound basic education, we also conclude that it has inherent power to do those things reasonably related to meeting that constitutionally prescribed duty. This power would include the power to create a supplemental state funding program which has as its purpose the provision of additional state funds to poor districts so that they can provide their students access to a sound basic education. However, a funding system that distributed state funds to the districts in an arbitrary and capricious manner unrelated to such educational objectives simply would not be a valid exercise of that constitutional authority and could result in a denial of equal protection or due process. Hoke 52

o Every classroom be staffed with a competent, certified, well-trained teacher who is ... implementing effective educational methods that provide differentiated, individualized instruction, assessment, and remediation to the students in that classroom," and that "every school be provided, in the most cost effective manner, the resources necessary to support the effective instructional program within that school so that the educational needs of all children, including at-risk children, to have the equal opportunity to obtain a sound basic education, can be met. If fully implemented, such orders could require not only an "educational needs assessment" for every child in every school throughout North Carolina, but sufficient changes in educational practices and in resource enhancements to lift all children to a proficient level of performance. The superior court has ruled that it will exercise continuing jurisdiction to oversee the full implementation of its sweeping remedial orders. Yet the State has appealed these lower court decisions, and the future of Leandro is presently uncertain. In his response to the Leandro mandate, North Carolina's Attorney General is following a path well-trodden by executive officials and legislatures in other states, who have resisted judicially mandated redistribution of educational resources.

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