Nevada Association of School Administrators

Volume 2, Issue 3, July 2010

In This Issue (use your control key and click to go to individual summaries):
Student's Web Parody of Principal That Disrupted School Activities Not Protected by First Amendment
Student's Web Group Critical of Teacher Protected by First Amendment
Ninth Circuit Upholds Constitutionality of Public School Pledge Exercise 
Seizure of Student's Backpack Does Not Violate Fourth Amendment 
Superintendent Who Knew of Band Director's Previous Sexual Relationships With Students Must Face Trial 
Student Wins Order to be Exempt From Hair Length Regulation for Religious Reasons

 Student's Web Parody of Principal That Disrupted School Activities Not Protected by First Amendment

In March 2007, a female Pennsylvania middle school student created a fake profile of her principal on a popular social networking Web site after she became upset at him for the way he handled her dress code violation. The student, with the assistance of a classmate, did not include the principal's name on the profile but did include a photograph of the principal (that the students copied and pasted from the school's Web site) and a description of the man as a 46-year-ol middle school principal who was married and bisexual. The profile further noted that his interests included having sex in his office, watching the Playboy Channel, having sex with his wife, and being addicted to sex. Once created, the student primarily responsible for the profile's creation permitted public access to the profile for less than a day; on that day, many classmates approached the student to comment on the profile. That evening, the student restricted access to the profile to 22 classmates who were granted access as "friends." The principal learned of the profile later that day and, through the assistance of a sympathetic student, saw a printed copy of the profile 2 days later. 

The principal showed the profile to several colleagues and supervisors and the student who created the profile ultimately admitted doing so. The principal suspended the student for 10 days, believing in part that the profile violated the district's acceptable use of technology policy. Further, several staff members averred that the profile caused disruptions during school activities, including (1) two teachers having to repeatedly quiet their students because they continued to discuss the profile in class; (2) a guidance counselor having to proctor a test for an administrator who sat in on the meeting between the principal and the student; and (3) two students decorating the student creator's locker on her return from her suspension, which resulted in a group of students to congregating around the locker. Finally, the principal asserted that he observed deterioration in student conduct after the profile was posted and that he suffered stress-related health issues as a result.

 Even though the student served her suspension, she and her parents filed suit, asserting that the suspension violated her First Amendment free speech rights, her due process rights, state statute, and the parents' substantive due process liberty interests in directing the upbringing of their daughter. In affirming a federal district court's grant of summary judgment to the school district, a split (2-1) panel of the Third Circuit held that the school district could constitutionally punish the student for creating the profile. In deciding the free speech claim in favor of the school district, the federal appellate court declined to answer the question of whether school officials "may discipline a student for her lewd, vulgar, or offensive off-campus speech that has an effect on campus," finding that, while the profile was lewd and vulgar and created off-campus, the "material and substantial interference" standard of Tinker was applicable to the facts of this case. However, the court found that the previously noted disruptions, while occurring, did not rise to the level of "material and substantial" interferences with school activities; rather, the court found that the principal could regulate the student's expression based on his reasonable belief that such an interference or disruption could occur absent his action to regulate. Further, the court observed that the principal's swift action in dealing with the profile and the student who created it was justified by the principal's reasonable forecast of disruption in the absence of his affirmative conduct. In other words, the court found that the principal's action was not motivated by the profile being critical of him but by his desire to avoid further disruption of school activities and to minimize parental concerns about his fitness to lead the school. Ultimately, while not discounting the lewd and vulgar nature of the student's expression, the court found that the principal had the authority to regulate "off-campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school." Importantly, the court distinguished this case from previous decisions that found in favor of students who created fake profiles of school administrators, noting that, in this case, the school district clearly argued that there was a nexus between the profile and the disruption of school activities.

 Finally, with minimal discussion, the court affirmed the summary judgments granted to the school district on the remaining claims.

 J.S. v. Snyder, 593 F.3d 286 (3rd Cir. 2010).

Student's Web Group Critical of Teacher Protected by First Amendment 

In November 2007, a female high school student in Florida created a Facebook group that criticized one of her teachers. Titled "Ms. [Name of Teacher] is the worst teacher I've ever had," the posting for the group invited other students to both criticize the teacher and express their hatred for her. In response, three students made posts to the group supporting the teacher and criticizing the group's creator. The student created the group at home and deleted it after 2 days; the teacher who was the subject of the posting never saw it. At an undetermined time after the student deleted the group, the principal learned of it and, subsequently, suspended the student for 3 days and removed her from her advanced placement classes for the offenses of "bullying/cyber bullying/harassment towards a staff member" and "disruptive behavior."

 The student sued the principal in his individual capacity, asserting that his actions violated her First Amendment free speech rights, and seeking injunctive relief, nominal damages, and attorney's fees. The principal claimed, in part, that his actions were shielded by qualified immunity. On the issue of the injunction, the federal district court held that while qualified immunity did not protect the principal from suit (as qualified immunity applies only to suits for damage relief), the principal was still entitled to dismissal on the injunction because a plaintiff cannot seek an injunction against a defendant in his or her "individual capacity if the act must be in his official capacity to have official consequences." Next, the court found that qualified immunity did not protect the principal against the student's action for nominal damages for the alleged violation of her First Amendment rights. In sum, the court found that the student's Facebook posting was made off campus, was never accessed by anyone on campus, and the posting was no longer accessible when the principal learned of it; accordingly, the court found the student's posting to be off-campus speech. Thus, the "material and substantial interference" standard of Tinker v. Des Moines (393 U.S. 503, 1969) was applicable to the posting. Applying this standard, the court found that not only was there not a disruption of school activities resulting from the posting, but the principal could not reasonably forecast such a disruption, particularly in view that the student had removed the posting before the principal became aware of it. The court also rejected the principal's assertion that the student's posting was defamatory and outside the protection of the First Amendment, finding that the posting was purely opinion and not defamatory. Further, the speech was not lewd, vulgar, or threatening, nor did it advocate unlawful activity; and thus the principal violated the student's free speech rights. On the issue of whether the student's right to post the material was clearly established, the court found in favor of the student, as a reasonable school official would have realized that the principal's actions did "not even comport with the requirements for the regulation of on-campus [private] speech (i.e., the material and substantial interference requirement of Tinker). Thus, the court denied the principal's motion to dismiss the free speech action for nominal damages, and also denied the principal's motion to dismiss the student's action for attorney's fees.  

Evans v. Bayer, 2010 U.S. Dist. LEXIS 12560 (S.D. Fla. Feb. 12, 2010).

 Ninth Circuit Upholds Constitutionality of Public School Pledge Exercise

 In the latest episode in a longstanding dispute over the practice of public school teachers leading children in a daily recitation of the Pledge of Allegiance, a panel of the Ninth Circuit Court of Appeals split 2-1 in finding the practice constitutional. The case was brought by Michael Newdow and marks the third time the federal appellate court has heard his complaint. He alleged that having public school teachers lead students in the pledge, which contains the words "under God," coerces students to engage in a practice that affirms the existence of a monotheistic god, thereby violating the establishment clause of the First Amendment. His earlier suit resulted in a Ninth Circuit ruling in his favor, followed by en banc affirmation. That ruling was appealed to the U.S. Supreme Court, which vacated the decision after concluding that Newdow lacked standing to bring the suit in the first place. He renewed his challenge with additional plaintiffs and the federal district court ruled in his favor, citing the earlier Ninth Circuit decisions. The school district appealed.

 The majority of this panel reversed that holding in a strongly worded opinion. Like both the Fourth and Seventh Circuit Courts of Appeals, the court held that the practice of leading willing students in the Pledge of Allegiance does not violate the establishment clause, even with the words "under God," which were added to the oath in 1954. The court held that the practice has a legitimate secular purpose, namely instilling patriotism. In addition, the primary effect does not advance religion since no child is compelled to say the pledge and no child is punished for electing to abstain. Further, the practice involves no entanglement with religion. Therefore, the practice passed muster under the tripartite Lemon Test. The court also applied the endorsement analysis, ruling that a reasonable observer familiar with the history and context of the insertion of the words "under God" in 1954, Congressional action reaffirming the pledge in 2002, and California's statute regarding the pledge would not conclude the government had endorsed religion. Instead, the court concluded that the additional words merely recognized that the country was founded on the belief that individual rights were granted by God and the government was therefore limited in its authority. Finally, the court held that the flag salute survived the coercion analysis because the practice was not a religious exercise, but a patriotic one and the coercion analysis only examined coerced religious practice.

 The dissenting judge, in an equally impassioned opinion, would have affirmed the district court's holding and its application of the earlier Ninth Circuit opinions.

 Newdow v. Rio Linda Union School District, 2010 U.S. App. LEXIS 5201 (9th Cir. Mar. 11, 2010).

 Hot Off the Bench is prepared by the Educational Research Service—The Nonprofit Providing School Leaders With Essential Research for Effective Decisions.  For the information administrators need to know and tools they need to use, visit www.ers.org.   

Seizure of Student's Backpack Does Not Violate Fourth Amendment

 When in 2006 local police officers arrived at a Texas high school to conduct a canine sweep of the building accompanied by a school administrator, the group came upon classrooms, notified the teachers that they were sweeping the school, and directed students to leave their belongings in their classrooms and exit to the hallway while the canine sniffed the students' belongings. In one classroom, the canine "hit" on a female student's backpack, at which point the officers summoned the student back into the classroom, read her her rights, searched her backpack, and recovered a usable amount of marijuana. After a juvenile court adjudicated the student as delinquent and sentenced her to 8 months of probation, the student appealed her conviction.

 In affirming, the state appellate court applied Fourth Amendment principles to the student's argument that being directed to leave her backpack in the classroom while she was forced to exit was an unconstitutional seizure of her property. Assuming without deciding that a seizure of her backpack occurred, the appellate court nonetheless held that the seizure was reasonable under the Fourth Amendment. Applying standards from the two United States Supreme Court cases upholding the constitutionality of random drug testing (Vernonia v. Acton, 515 U.S. 646 [1995] and Board of Educ. v. Earls, 536 U.S. 822 [2002]), the court found that, while the student had a legitimate privacy interest in her backpack and its contents, the fact that students have a lessened expectation of privacy in the contents of their belongings in the school coupled with the fact that the backpack was not searched until the canine alerted to it led the court to hold that the seizure implicated a minimal privacy interest. Turning to the nature of the intrusion, the court found that the privacy interest was not significant due to the fact that the canine alerted on the backpack away from the presence of other students and that the search was conducted only with the officers, administrator, and student present. Finally, given the Vernonia and Earls courts' comments that combating drug use among students presents perhaps a "compelling interest," the court held that the seizure and resultant finding of drugs was in furtherance of that interest, particularly in view of the student's minimal privacy interest and the way in which the seizure was carried out. Thus, the student's delinquency adjudication was upheld.

 In re D.H., No. 30-07-00426-CV (Tex. App. 2010; retrieved April 24, 2010 from www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=18947).

Superintendent Who Knew of Band Director's Previous Sexual Relationships With Students Must Face Trial

 Shortly after a Texas school district hired a high school band director, the band director was indicted for indecent exposure to a student and having sexual intercourse with two students, one in middle school and one in high school. As a result of the district's investigation, the band director was suspended without pay. After his acquittal, however, the school district, evidently on the recommendation of the superintendent, rehired the band director. The rehire was based on several conditions imposed by the superintendent, including not being alone with students in the office, not closing the office door, not having any physical contact with students, and being subject to twice monthly observations by the superintendent. However, even before he was rehired, the band director began another sexual relationship with a female band student that lasted some 2 years and was discovered by the student's mother when she found the band director hiding "nearly naked" in her daughter's closet. Shortly after the mother's discovery, she, her husband, and their daughter met with the superintendent and the district's attorney. At this meeting, the parents alleged that the superintendent encouraged them to remain quiet about the incident and remarked to the attorney "it's [the band director's last name] again"; further, they also alleged that the attorney told the superintendent "I told you so" and that she "knew it would happen again."

 The student sued the superintendent in his individual capacity, asserting that he was deliberately indifferent to the director's known proclivities, and that this deliberate indifference caused her to suffer sexual abuse at the hands of the director in violation of her substantive due process liberty interest in her bodily integrity in violation of the Fourteenth Amendment. After a federal district court denied the superintendent's claim to qualified immunity, the superintendent appealed. The Fifth Circuit affirmed this denial in an unpublished opinion, first finding it undisputed and clearly established that the student suffered a violation of her Fourteenth Amendment right to bodily integrity. Next, the court turned to the claim of the student that the superintendent was deliberately indifferent to her clearly established constitutional rights, and found that there were factual issues to which the parties disputed (i.e., the comments the superintendent and attorney made while meeting with the parents) and that these factual issues were material to the outcome of the case. Because they were material and, if proven, would render the superintendent's conduct not objectively reasonable, the superintendent was not entitled to qualified immunity. As such, the student had a chance to prove at trial that the superintendent knew of the abuse, was deliberately indifferent to it, and that this deliberate indifference was the cause of the student's constitutional injury.

 Guillory v. Thomas, 2009 U.S. App. LEXIS 27121 (5th Cir. Dec. 14, 2009).

 Student Wins Order to be Exempt From Hair Length Regulation for Religious Reasons

 The Needville (Texas) Independent School District enforces a hair length regulation for boys as part of its dress code. The rule requires that "[b]oys' hair shall not cover any part of the ear or touch the top of the standard collar in the back." Girls were allowed to wear long hair in any style selected. Students who violate this rule are subject to discipline including assignment to in-school suspension, suspension, or placement in a disciplinary alternative school. A.A.'s family moved to Needville and, in anticipation of his enrollment in kindergarten, requested an exemption from the policy. The father explained that he kept his hair long to be consistent with his religious beliefs as a Native American. In keeping with these beliefs, he had never cut his son's hair and believed that doing so should only occur in relation to mourning the loss of a loved one. Both father and son wore their hair in two braids. School officials denied the request, but suggested that the child wear his hair in a bun on top of his head. When parents rejected this suggestion, school officials offered to let the child attend school if he wore his hair in a single braid and tucked it into the collar of his shirt. When the kindergartener came to school with two braids, he was placed in in-school suspension.

 The parents filed suit and the federal district court awarded a preliminary injunction to allow A.A. to attend school wearing his hair as he chose without discipline. School officials refused to relax or waive the rule and the case went to trial on the merits. The parents alleged that the district's refusal to exempt them from the rule as an accommodation to their sincerely held religious beliefs violated their child's rights to free exercise of religion and freedom of speech under the First Amendment and the parents' liberty interest in controlling the upbringing of their child as guaranteed by the Fourteenth Amendment. The parents also alleged violation of the Texas Religious Freedom Act and claimed that requiring them to seek an exemption from the rule on an annual basis violated the same rights.

 The federal district court first considered whether the school's rule violated the child's rights as alleged. The court determined first that the father and son had a sincerely held religious belief and that complying with the regulation substantially burdened the exercise of that belief. School officials were unable to show a compelling state interest that justified this burden and, therefore, the court held that the regulation as enforced violated the child's and parents' rights as alleged. Accordingly, the court permanently enjoined school officials from enforcing the hair length rule as applied to A.A. The court did find, however, that the rule that the parents apply annually for an exemption was a rule of general applicability and was therefore permissible.

 A.A. v. Needville Independent School District, 2009 U.S. Dist. LEXIS 125690 (S.D. Tex. 2009).