Professor Leora Harpaz
Law and Education
Spring 2011
2011 Law and Education Review

I.  System of Free Universal Public Education
 
States provide a system of free universal public education for a variety of reasons. These include: (1) education is essential to the economic and political welfare of the country; (2) the general spread of knowledge nurtures the democratic ideals of government; (3) universal education creates a stable social environment by making people more alike and more fit for uniform and peaceable government; (4) democratic society must rest on an educated electorate who are able to participate effectively in the political process; (5) an educated citizenry with intellectual autonomy counters political oppression; (6) public schools assure the transfer of knowledge from one generation to another; (7) education reduces class distinctions; (8) education prevents children from prematurely entering the workforce and prepares citizens to be self sufficient; (9) education shapes character and develops critical thinking skills; (10) education instills a love of country; and (11) education prepares students to interact in a culturally, racially, ethnically, and religiously diverse community.

II.  State constitutional provisions

State constitutional provisions concerning education are generally more specific than the federal constitution which does not mention education. The general nature of these state constitutional provisions include: a state obligation to provide a free public education; state legislature has responsibility for creating a public school system that is a uniform, cohesive unit and to adopt laws to govern that system; funding for the system is through state tax revenues and not to be completely dependent on local tax resources.

Generally, the language in state constitutions falls into 3 categories:
1) general system language (California) (mandates creation of public school system, but does not specifically describe the characteristics of that system);
2) gloss language (Florida) (specific qualities of the mandated system like efficient, uniform or thorough are included); and
3) virtue language (New Hampshire, Massachusetts, Rhode Island and Virginia) (specifies virtues of education, but does not mandate any specific legislative action).

With each type of language, issues of interpretation are presented to the state courts:
(1) Is the language aspirational only or does it impose a duty on the legislative and executive branches of state government?
(2) If it does create a duty, how specific is that duty? If the state is obligated to provide a public education, what kind of education must it provide? Adequate? Uniform? Thorough? (See Bush v. Holmes interpreting gloss terms in Florida Constitution to preclude voucher program.) If such terms are used, how should they be interpreted? Should the state courts define those terms or should the legislature define them? (See Rose v. Council for Better Education, Inc. where the court specifically defines elements of an efficient and adequate education.)
(3) Does the state constitution define the right to an education as a fundamental individual right belonging to its citizens? (See Claremont School District v. Governor where the right to an adequate education is found to be a fundamental right under the New Hampshire Constitution.)

In resolving these issues of interpretation, state courts look to the language in the state constitution, the structure of the constitution, the history of the relevant provisions including the views of the drafters, and the purpose of the provision.

In addition to the meaning of the language, state courts must also decide what kind of remedy is  appropriate. This often involves a consideration of the role of the courts vs. the role of the other branches of state government. Therefore, even if the state constitution contains gloss language such as efficient, uniform, and adequate, state courts must decide whether to interpret that language to impose specific obligations on the state legislature or to leave it to the state legislature to decide how to achieve those objectives.

Specific issues that were raised in the consideration of state constitutions included whether the state is adequately educating all schoolchildren or whether disparities in funding for some school districts as compared to others violate the state constitution (Claremont and Rose), whether the state can fund private school tuition through voucher programs (Bush v. Holmes), whether the state has the power to create charter schools as part of its public school system (Wilson v. State Board of Education), amd whether a school district can charge for certain parts of its educational program despite the obligation to provide free education (Randolph County Board of Education v. Adams and Hartzell v. Connell).

III.  Authority Over Education Within the State

A.  State vs. Local Control of Schools

In most states, under the state constitution, the predominant power over the public schools is in the hands of the state and not local entities. There are a few exceptions to this division of authority such as in Colorado and 5 other states where the state constitution specifically gives localities a significant role. In the typical arrangement where constitutional authority is in the state, localities have only the authority that is specifically delegated to them by the legislature. In battles between states and localities over control of education, therefore, courts are asked to interpret statutes that delegate authority over education and resolve disputes over whether that authority is vested in a state entity or delegated to a local entity. Examples of such disputes are found in State ex rel Clark v. Haworth (control over textbook purchases), McGilvra v. Seattle School District No. 1 (dispute over whether school district could establish health clinic), Johnson v. Burmaster (dispute over whether school district could create a virtual charter school), and In the Petition to Transfer Territory from High School District No. 6 to High School District No.1 v. Lame Deer High School District (dispute over power to transfer territory from one school district to another).

In such disputes, the general default rule that is applied whenever the division of authority is unclear is that the authority of state entities is interpreted broadly while the authority of local school districts is interpreted narrowly since they have only the authority that is expressly delegated to them. (See McGilvra v. Seattle School District No. 1 where court ruled that a local school district had no authority to create an in-school health clinic.) An exception to this default rule occurs in the six states where localities have express authority under the state constitution to control the schools. When this occurs, the legislature is not free to take away authority that is constitutionally granted to local bodies such as local school districts. In this situation, a different default rule applies. This is the case, for example, in Colorado. See Owens v. Colorado Congress of Parents, Teachers and Students where the Colorado Supreme Court struck down a state voucher program because it required local school districts to fund the program in violation of the local control provision in the state constitution.    
 
The state legislature can’t administer the public school system by itself so it delegates that authority to an administrative system that it creates or is created directly by the state constitution. The specific arrangement for the administration of the school system varies from state to state, but the typical arrangement is that there is a state educational agency (such as a state board of education) that makes educational policy under delegated authority from the state legislature. This is usually an independent agency, but an alternative arrangement is to create an executive agency, such as a department of education, operating under the governor to perform key education functions. In addition to an educational agency, there will be a chief state schools officer (such as a state superintendent of schools or a state superintendent of public instruction) who administers the schools according to the policies laid down by the state educational agency. Local school districts (run by a combination of a school board and a district administrator such as a superintendent of schools) operate below this statewide level of control and are delegated authority to administer schools within their district. Some state and local education officials are elected and some are appointed. (For some arrangements specifically prescribed by the state constitution see Florida, Michigan, and California Constitutions.)  

B.  Legislative Delegation

There can be constitutional challenges to the way in which the legislature delegates the authority to operate the schools, whether authority is delegated to a state entity or local entity. While courts generally defer when the legislature expressly delegates authority, a challenge can be brought that argues that the delegation violates the state constitution if the delegation is too broad and allows for the exercise of unlimited discretion. An example of such improper delegation can be found in Lame Deer.
 
IV.  Federal vs. State Power to Regulate Education

While states play the central role in the regulation of education, there is an important federal role as well. Federal authority comes in the form of the affirmative powers of Congress such as the commerce and spending powers as well as federal restraints on state power that flow from the individual rights provisions of the United States Constitution such as the First Amendment, the Fourth Amendment, and the Due Process and Equal Protection Clauses.

A.  The Spending Power

The most exercised federal power used to intrude federal authority into the area of public education is the spending power. The spending power isn’t a regulatory power (it relies on the "carrot" of federal money, rather than the stick of direct regulations), but for the most part it has the same practical effect, allowing Congress to accomplish indirectly what it can’t accomplish directly.

When the federal government creates a spending program that offers money to the states only if the states comply with federal conditions (strings attached), as was the case in South Dakota v. Dole, such conditions are constitutional exercises of the spending power if they satisfy 5 requirements:

(1) the spending program is in pursuit of the general welfare (courts generally defer to Congress in defining general welfare and spending for education is spending for the general welfare);
(2) any conditions Congress includes on money granted to the states must be unambiguously stated so that the states can make a knowing choice as to whether to accept the federal funding (the offer of funds accepted by the states is like a contract; it must be accepted knowingly and voluntarily so the states know exactly what they have agree to);
(3) there is a relationship between the condition imposed and the purpose of the federal spending (the condition can’t be unrelated to the purpose of the federal program to which condition is attached);
(4) the condition does not induce the states to violate some other provision of the Constitution and, therefore, be independently barred (consider this issue by asking whether a state could enact the condition on its own, in the absence of the incentive of a federal spending program, without violating the constitution); and
(5) the financial inducement offered by Congress must not be so coercive as to go beyond pressure and amount to a compulsion (in answering this question in Dole, the Court focused on the percentage of their federal highway funds (a source of funds the states had long relied on rather than a new source of money) states would lose if they failed to raise the drinking age).

In Arlington Central School District Board of Education v. Murphy, a failure to state a condition unambigiously as required by prong two of the Dole test was the basis for the decision. In that case, the Supreme Court concluded that Congress did not intend to authorize the reimbursement of expert fees in IDEA actions because the statutory language was not sufficiently unambigious to impose such an obligation on the school district. Similarly, in School District of the City of Pontiac v. Spellings, the court considered whether a condition that the federal government argued was imposed on the receipt of funds under No Child Left Behind (the condition that the states provide funding for compliance with NCLB if the federal government did not fully fund the federal law) was sufficiently unambiguous to satisfy prong two of the Dole test.

B.  Commerce Power

In some situations there is direct federal regulatory power to regulate education, but such power is limited due to limitations on the commerce power, as seen in United States v. Lopez, where Congress unsuccessfully attempted to regulate local non-economic activity (possession of a gun in a school zone) by arguing that the regulated activity had a substantial economic effect on interstate commerce. The areas where Congress can directly regulate aspects of education using its power under the Commerce Clause are, for the most part, at the periphery of education (such as the regulation of the employment relationship between school systems and their employees in order to protect employees against various forms of discrimination), and don’t allow the federal government to directly regulate core areas like school curriculums.

V.  Federal Constitutional Limits on State and Federal Regulation of Education

A.  Equal Protection Clause

In San Antonio Independent School District v. Rodriguez, the Supreme Court rejected a constitutional challenge to San Antonio’s system of school financing brought under the Equal Protection Clause. The lawsuit argued that the inequality in financing in poor districts vs. rich districts violated the Equal Protection Clause. The Court concluded it did not because the financing scheme did not discriminate against a suspect clause and did not infringe on a fundamental right. Therefore, the use of the classification only had to be rationally related to a legitimate state interest, a test the financing scheme satisfied. Rodriguez as well as subsequent cases such as Kadrmas v. Dickinson Public Schools, rejected the argument that there is a right to education which is a fundamental right under the federal constitution. The failure of this argument under the federal constitution has moved the debate to the state courts where similar claims challenging school financing schemes have been raised under state constitutions. In these cases, a variety of kinds of provisions found in state constitutions have been relied on as support including the right to a uniform or efficient free public education, equal protection clauses, and due process clauses. The results in these cases have been mixed with some challenges succeeding and others failing. Compare Rose v. Council for Better Education, Inc. and Claremont School District v. Governor with Committee for Educational Rights v. Edgar.  

B.  The First Amendment Free Speech Clause

(1) Supreme Court Quartet: Student Free Speech Rights

(a) Tinker v. Des Moines Independent School District (black armband case) - the decision is applicable to personal self-expression by students (and not school-sponsored speech). In such cases, a public school can discipline a student if it can show the speech caused material or substantial disruption of school activities. The school can also prohibit student speech in advance of it occurring if it can reasonably forecast disruption if the speech were allowed to occur. Note the cases involving a ban on the display of the confederate flag that look to see if there have been past incidents of racial tension in the school to determine if such a ban satisfies Tinker.

Issues left unresolved by Tinker:
Does Tinker apply to student speech that occurs away from school?
Does Tinker apply if the student speech is prevented or punished based on something other than its content or viewpoint? (See Canady v. Bossier Parish School Board, a school uniform case, in which the court did not apply the Tinker test to a school uniform policy because the policy was viewpoint neutral. The court instead applied intermediate scrutiny and required the school to show it had chosen a narrowly tailored means to accomplish an important or substantial government interest that was not designed to suppress expression, a test it found the school’s policy satisfied.)
Does Tinker apply only to political expression by students?

(b) Bethel School District No. 403 v. Fraser (sexually suggestive nominating speech at school assembly)
Speech that falls under Fraser, indecent and profane speech, can be proscribed or punished without a showing of disruption or any other reaction to the speech.  

Unresolved issues relating to location of speech:
Is Fraser limited to speech at official school events such as at a school assembly or during a class or does it apply to all speech that occurs at school? (Most lower courts have concluded that Fraser applies to all speech that occurs at school.)
Could Fraser even be applied to speech that occurs away from school such as speech posted online? (Most lower courts have concluded that Fraser does not apply to speech that occurs away from school)

Unresolved issues relating to the type of speech:
What is scope of the speech that can be regulated under Fraser? Fraser clearly applies to  indecent and profane speech (lewd speech, including sexually suggestive speech and explicit sexual references, and vulgar language, slang expressions for sexual activities and excretory functions). But there is still a question about how vulgar the speech has to be to fall within Fraser.
Can Fraser apply to speech that is offensive for other reasons: insults based on race, ethnicity, religion, gender, sexual orientation, and other personal characteristics?  Since such speech can be part of political expression which is governed by Tinker rather than Fraser, this issue is a difficult one and the lower courts are divided. Note Scott v. School Board of Alachua County in which the school board argued that Fraser was applicable because the display of the confederate flag was offensive and should be governed by Fraser. In Scott, the Eleventh Circuit upheld the ban on the display of the confederate flag on the authority of both Tinker and Fraser, refusing to choose between them.

(c) Hazelwood School District v. Kuhlmeier (censorship of school newspaper)
A public school can censor the style and content of speech that occurs as part of a school-sponsored expressive activity, such as the official school newspaper in Hazelwood (speech that will be perceived as bearing the imprimatur (stamp of approval) of the school), if its “actions are reasonably related to legitimate pedagogical concerns.”

Issues left unresolved by Hazelwood:
What are the factors that determine whether an activity is a school-sponsored expressive activity? Do students have to get course credit?  Does there have to be a teacher or faculty advisor involved? Does the school have to fund the activity?   

(d) Morse v. Frederick (Bong Hits 4 Jesus banner)  
A public school can discipline students for speech that occurs during a school event that promotes or advocates illegal drug use when the school has a strong anti-drug policy (without showing the speech had any particular impact; in other words without satisfying Tinker) (case involves a school event, but not school-sponsored expression that would be governed by Hazelwood). Justice Alito’s concurring opinion emphasizes that Morse is limited to cases where the student is not engaging in political expression (“it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’"). Thus, there is a difference between “Bong Hits 4 Jesus” on Frederick’s banner and “legalize bong hits” on the same banner. In a case where a school disciplines a student for a “legalize bong hits” banner, courts will analyze the constitutionality of the discipline using the Tinker standard.

Issues unresolved by Morse:
What other kinds of speech that violate school policies other than anti-drug policies could also be regulated under Morse? What about advocacy of illegal activities such as drinking and smoking cigarettes? What about underage sexual activity? What about speech that criticizes homosexuality in a school district with a policy that promotes respect for alternative lifestyles? What about speech that is a threat to student safety in a school with a strong school safety policy?

(2)  Public Forum Doctrine

(a)  The Supreme Court has categorized government property as falling into one of three categories for First Amendment purposes: traditional public forums (this category includes streets and parks, but does not include public schools), designated public forums (including limited public forums) (places the government has intentionally opened up for purposes of expression), and nonpublic forums (the residual category for government facilities that do not fall into the first two categories). Greater rights of access apply to the first two categories as compared to the nonpublic forum category. While much school speech is analyzed under the Supreme Court quartet of school speech decisions, some school cases can also be analyzed by using the public forum doctrine. For example, access to school facilities by student organizations to post notices on a bulletin board and make announcements over the loud speaker system can be viewed as limited public forums and subject to the restrictions imposed on the government in its administration of public forums.

(b)  Access to designated public forums can be restricted based on the creation of reasonable time, place, and manner regulations. To be constitutional, time, place, and manner regulations must be content-neutral, narrowly tailored to accomplish an important government objective, and leave open ample alternative avenues of communication. A school can regulate access to a designated public forum based on content if it can satisfy strict scrutiny (prove that it is using a narrowly tailored, least restrictive means to achieve a compelling governmental interest) rather than the intermediate scrutiny standard that is applicable to content-neutral reasonable time, place and manner regulations.

(c)  Most designated public forums are limited public forums. They are intentionally created to provide a limited opportunity to engage in expression.  They can be limited by, for example, speaker identity (a limited forum created by a school for use by students or teachers, but not by the general public), time (public schools can create limited public forums by allowing their school buildings to be used by community organizations when school is not in session), and subject matter (student organizations can be given access to a bulletin board, but only for purposes of posting information about upcoming events sponsored by the organizations). When the government creates a limited public forum, the forum is a designated forum as to some potential users of the forum (those within the described limits) and a nonpublic forum as to other speakers (those outside the described limits). While the government has considerable discretion to create limits on a designated forum, those limits are subject to constitutional challenge. To be constitutional, a limit must be reasonable in light of the purpose of the forum and not based on viewpoint. This is the same standard that applies to the review of a denial of access to a nonpublic forum. See paragraph (e) below.

(d) To identify whether property qualifies as a designated public forum, courts principally examine the policy and practice of the government (to determine if it intended to designate a place as a public forum). Courts also look at the nature of the property and its compatibility with expressive activity (to discern the government’s intent). A court will not determine that government property to which a speaker seeks access is a designated public forum solely because the government has allowed selective access to the forum (e.g., by allowing it to be used by occasional speakers).  In addition, property does not become a public forum because the government uses the property for its own speech rather than making it available for the speech of private citizens. This is relevant in the school context because possible forums such as bulletin boards are often reserved for official communications by school administrators or teachers speeching on behalf of their government employer. In this circumstance, the bulletin board is available for the school's own speech and its use for this purpose does not turn it into a public forum.
 
(e) Access to government property that is a nonpublic forum can be restricted based on regulations that are reasonable in light of the nature of the property, but cannot be restricted based on discrimination against the speaker’s viewpoint. The Court has not decided whether viewpoint discrimination in restricting access to a nonpublic forum is per se unconstitutional or whether such discrimination could ever be justified. Since it is easier for the government to satisfy the "reasonable and not based on viewpoint" standard than it is to satisfy the standards that apply to traditional and designated public forums, the government will try and argue that government property should be classified as a nonpublic forum whenever possible. By contrast, the person seeking access to the forum will try and argue that the government property should be classified as a traditional or designated public forum.
 
(f)  Lamb’s Chapel v. Center Moriches Union Free School District - public school allowed community groups to use the school building for certain purposes when school was not in session thus creating some kind of public forum. The Supreme Court struck down the exclusion of a group that wanted to show a film about child-rearing from a religious perspective on the ground that the basis of the exclusion was the viewpoint of the film. Viewpoint discrimination is not an acceptable rationale for exclusion from any of the 3 public forum categories, including the nonpublic forum category, and could not be justified by the need to separate church and state because Lamb’s Chapel’s private speech would not be attributable to the government. The Court reaffirmed this reasoning in Good News Club v. Milford Central School. This case will be discussed further in the section on the Establishment Clause.

(3)  Unprotected Expression

The Supreme Court quartet applies to expression protected by the First Amendment. However, there are categories of speech that are not protected by the First Amendment and a public school is free to regulate such speech without worrying about First Amendment limits on its authority. Examples of these unprotected categories of speech include:

(a) Fighting Words - words in a face-to-face exchange in the form of personal insults or epithets which are likely to cause the average person to whom the words are addressed to react violently. Fighting words do not include political statements that the hearer finds deeply offensive to his or her beliefs.

(b) True Threats - defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” To be a true threat a speaker must have intended to communicate the threat to someone and a reasonable person would have taken the threat seriously, but the speaker need not have intended to carry it out the threat. (Compare Doe v. Pulaski County Special School District (threats in letter to ex-girlfriend were true threats) with Wisniewski v Board of Education of the Weedsport Central School District (court does not resolve whether icon on IM is a true threat, but student suspension upheld using Tinker standard).  

(c) Incitement to Imminent Lawless Action - government is free to punish such speech if the speech consists of advocacy of imminent lawless action in a situation where the speech is likely to produce such lawless action.   

(d) Obscenity - To be obscene, material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value. The test for obscenity varies when minors are the intended recipients of the speech where the issue becomes whether the test is satisfied as applied to minors (e.g., the work, taken as a whole, must lack serious literary, artistic, political or scientific value for minors).  This category of speech as well as nonobscene sexually explicit speech could all be prohibited under Fraser and Hazelwood so this category of unprotected speech is not usually relevant within the school setting.

(4) Student Internet Speech

If the internet communication is on campus (use of school computer, etc.), it will be governed by the Supreme Court quartet of student free speech cases and other doctrines that also control non-internet speech. If the internet speech (content of a personal webpage, comment on a blog, etc.) occurs away from school, a question arises as to what test to apply to the review of student discipline based on the speech. The Supreme Court has not resolved this issue, but lower courts generally have applied Tinker to off-campus speech that has an adverse effect on-campus, requiring schools to satisfy the material disruption standard even if the same speech on campus would be governed Fraser, Hazelwood or Morse instead of Tinker. In addition to satisfying Tinker, the Second Circuit has required that it be reasonably foreseeable that the off-campus speech would reach school grounds. This foreseeability requirement is satisfied when there is a connection or nexus between the subject of the speech and the school such as if the speech is about students, teachers or adminstratiors. (See Wisniewski v Board of Education of the Weedsport Central School District and Doninger v. Niehoff, two Second Circuit decisions which both apply the Tinker material disruption standard.)

(5) Speech vs. Conduct

The Supreme Court cases discussing the free speech rights of students all involve student behavior that falls into the category of expression including the armbands in Tinker, the speech in Fraser, the newspaper articles in Hazelwood and the banner in Morse. In other cases, however, it is arguable whether the conduct at issue falls into the category of expression. This gray area includes student appearance such as the choice of hairstyle and clothing. In such cases, students must first demonstrate that their conduct is sufficiently expressive to deserve First Amendment protection. If it isn’t protected by the First Amendment, the students only have a nonfundamental liberty interest and the government can regulate their conduct if the regulation has a rational relationship to a legitimate governmental interest. To determine if the conduct at issue is sufficiently expressive to merit First Amendment protection, courts ask whether the speaker had “[a]n intent to convey a particularized message” and whether, in the circumstances, “the likelihood was great that the message would be understood by those who viewed it.” In Canady v. Bossier Parish School Board, a school uniform case, the court, using this test, found that the choice of clothing was expression under the First Amendment.
   
(6) Other Sources of Protection for Student Speech

While most cases involving student speech involve claims under the First Amendment, there are also federal and state statutes that provide protection. In some situations, these statutes provide greater protection than the federal constitution. For example, the Massachusetts Students' Freedom of Expression Law, Mass. Gen. Laws ch. 71, §  82, applies the Tinker standard broadly, even in situations where the lesser protection of Fraser, Hazelwood or Morse would apply under the First Amendment: “The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.” On the federal level, the Equal Access Act provides rights of access to student groups that are greater than the rights those student organizations would have under the public forum doctrine.   

(7) Speech Rights of Teachers and Other School Employees

(a) Government employees have fewer First Amendment rights than other citizens because of their special obligations to their government employer. The government, when it acts as an employer dealing with its employees rather than as a sovereign dealing with its citizens, has the right to expect efficiency and effectiveness from its employees. On the other hand, government employees do not completely give up their rights as citizens to speak out on issues of public concern. To balance these competing interests, the Supreme Court applies the Pickering/Connick balancing test (see Pickering v. Board of Education and Connick v. Myers). Under that test, a court first asks whether the speech that was the basis for the adverse employment action was speech on a matter of public concern based on its content, form, and context? If the speech only relates to matters of private concern then the government is free to take action against the government employee. If the speech is on a matter of public concern, a court will balance the government employee’s interest in expression against the government’s interest in the effective and efficient operation of the government workplace. This analysis considers the impact of the speech on the workplace including the employee’s relationship with immediate supervisors and co-workers.

(b) Recently, the Supreme Court limited the speech rights of government employees by creating a further subdivision to distinguish between the official speech of a government employee where their speech is part of their official duties (the voice of the government) vs. the speech of a government employee that is not part of their official duties, but is “off the clock” and consists of their personal expression. Under Garcetti v. Ceballos, the public concern speech of a government employee is not protected if the speech is expressed as part of the employee’s official duties rather than expressed in the employee’s private capacity. In such situations, the balancing test does not apply and the government employer is free to take adverse employment action against the employee. The extent to which this ruling applies to teachers speaking in a classroom or writing in a scholarly journal is still unresolved by the Supreme Court, however, Garcetti has already been applied in numbers of lower court cases brought by school employees to reject First Amendment arguments. These cases consider the teacher's classroom speech to be official duty speech. For uses of Garcetti, see Mayer v. Monroe County Community School Corporation upholding decision not to renew elementary school teacher’s contract as a result of revealing her participation in an antiwar protest during classroom discussion of current events and Evans-Marshall v. Board of Education affirming decision not to renew teacher's contract as a result of speech related to her curricular choices. In Mayer, the court concluded the speech was official duty speech under Garcetti because Mayer was hired as a teacher and was speaking as a teacher and not as a private citizen since the speech at issue was classroom speech that occurred while she was teaching her elementary school class. Similar reasoning was relied on in Evans-Marshall.

(c) In many cases, there are factual disputes over the reasons for the termination or nonrenewal of the school employee with the school asserting reasons other than expression protected by the First Amendment and the employee claiming the adverse employment action was due to protected speech. Such cases are governed by Mt. Healthy City School District Board of Education v. Doyle. Under Mt. Healthy, the burden is first on the employee to show that she engaged in speech protected by the First Amendment (as analyzed under Pickering, Connick, and Garcetti), and second, the employee must show that her protected expression was a motivating factor in the termination or nonrenewal decision or other adverse employment action. If the employee makes those two showings, the burden shifts to the employer. The employer can still win the case if the employer can show by a preponderance of the evidence that the employee would have been terminated even if she hadn’t engaged in speech protected by the First Amendment.    

(d)  In another category of government employee speech, it may be possible for the school employee to rely on the public forum doctrine (see section (2) above) as a basis for asserting First Amendment rights if the employee is seeking access to a designated public forum created by the school for expression by its employees and the school has precluded the employee from using that forum. This argument will be relevant if the teacher is not complaining about an adverse employment action, but is instead complaining that the teacher was denied access to a facility the teacher characterizes as a designated public forum. The school may defend against this claim by arguing the facility is not a public forum. It may also claim that the facility is only available for the school's own speech and is not available for the personal speech of teachers since the First Amendment does not limit the government's right to speak, it only limits its ability to restrict the speech of members of the public (including its employees). This argument was made unsuccessfully in Lee v. York County School Division where a teacher objected to his principal's decision to remove newspaper articles from a classroom bulletin board. In rejecting the teacher’s access claim, the court relied on Hazelwood and concluded that the articles at issue would be viewed as school-sponsored speech and, therefore, the principal could remove them for legitimate pedagogical reasons. In addition, the court reasoned that the bulletin board at issue was a nonpublic forum because its content was controlled by the principal.

(e) Some teacher speech cases rely on the student speech cases (Tinker, Hazelwood, etc.) as one basis for the court's analysis although the extent to which these cases are relevant to teacher speech is not clear.

C.  Fourth Amendment

In New Jersey v. T.L.O., the Supreme Court was faced with the issue of whether the Fourth Amendment applied to searches and seizures by public school personnel. The Court decided that the Fourth Amendment did apply because students had some reasonable expectation of privacy in the school setting, but that the Fourth Amendment had to be interpreted in light of the special circumstances of the public school setting. Therefore, it decided that neither the warrant requirement nor the probable cause standard applied to searches and seizures conducted by school personnel. Instead, in cases where there is individualized suspicion of wrongdoing by a particular student, in order to conduct a search, the Court held the search had to be based on reasonable suspicion and applied a two-prong test:

(1)Whether the search is justified at its inception; and
(2) whether the search as actually conducted was reasonably related in scope to the circumstances that justified the search.
 
In explaining this reasonable suspicion test, the Court said that prong 1 required "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school" and prong 2 required that the "measures adopted are 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." This same test was applied in Stafford School District v. Redding to conclude that the strip search of a student was not justified by an accusation by a fellow student that the student was  in possession of common prescription and non-prescription pain relievers prohibited by a school rule. The Court concluded that the degree of intrusiveness of the search was not justified by the content of the suspicion.

In addition to T.L.O. and Redding which govern the search of a particular student based on individualized suspicion, the Court has also decided two cases involving suspicionless drug testing. In both cases the Court upheld administrative searches in the form of random drug testing when that testing involved specific groups of students who were participating in extracurricular activities (athletes in Veronia School District 47J v. Acton and students participating in a range of competitive extracurricular activities in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earles) and there was evidence that there was a drug problem at the schools involved.  In upholding the school district’s policy in both Acton and Earles, the Court examined (1) the reasonable expectation of privacy (which the Court concluded was lower for student athletes and students engaged in competitive extracurricular activities than for students in general), (2) the character of the intrusion (the method used for collecting the urine samples), and (3) the severity of the need for the search (in light of evidence of a drug problem in the school district).

In addition to drug testing, other cases of random searches involve locker searches, metal detectors, and canine searches. Random locker searches are often upheld because of the lowered expectation of privacy a student has in belongings stored in a school locker (particularly if the school has given students advance notice that student lockers are subject to searches conducted by the school), the limited character of the intrusion, and the need for the search. The use of metal detectors are upheld because of the limited nature of the intrusion, and the strong interest in school safety. The use of drug-sniffing dogs to search areas of a public school including locker areas and student parking lots are justified on similar grounds as well as based on the argument that the use of such a canine is not a search for Fourth Amendment purposes. If the canine search identifies a locker or a vehicle likely to have drugs inside, the identification by the canine creates the individualized suspicion necessary under T.L.O. to open the locker or car and conduct a search.

D.  Eighth Amendment

In Ingraham v. Wright, the Supreme Court decided that the Eighth Amendment cruel and unusual punishment clause did not bar physical punishment of students by teachers and school administrators since that provision only protects those convicted of criminal wrongdoing.

E.  Substantive Due Process

When a student or a teacher argues that they have been denied substantive due process, they are usually referring to the fact that they have suffered the denial of an unenumerated nonfundamental right rather than an enumerated fundamental right like the right to freedom of speech protected by the First Amendment or a nonenumerated fundamental right like the right to privacy (right to use contraceptives, right to terminate a pregnancy, right of parents to direct the education and upbringing of their children, right to marry, etc.). States may not deprive their citizens of such nonfundamental liberty and property rights without due process of law as guaranteed by the Fourteenth Amendment Due Process Clause. To accord with substantive due process, deprivations of such liberty and property rights must have a rational basis (the government’s action must be rationally related to the accomplishment of a legitimate government interest) and cannot be arbitrary or capricious. In Dunn v. Fairfield Community High School District No. 225, the court rejected a substantive due process claim because the right at issue was not fundamental and the school acted rationally when it gave students an “F” in band class because they were insubordinate. In South Gibson School Board v. Sollman, the court rejected a substantive due process claim that the extent of a student’s punishment for violating a zero tolerance drug policy was excessive and therefore arbitrary and capricious because the court concluded the school could rationally conclude that a less severe punishment would not be a sufficient deterrent.     

F.  Procedural Due Process

To be entitled to procedural due process, claimants must first demonstrate that they have been denied a protected liberty or property interest and second that they were deprived of that interest without constitutionally adequate procedures such as notice and an opportunity to be heard. In Ingraham v. Wright, the Supreme Court first rejected the effort to apply the Eighth Amendment (a fundamental right) to corporal punishment. It then considered whether students had a liberty interest in being free of physical restraint and the infliction of appreciable physical pain and concluded that they did. However, when the Court considered the issue of whether that interest and been infringed without due process of law, the Court concluded that it had not. It reached this conclusion based on the existence of a “common law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse.” Those remedies include civil damages and criminal penalties under state law for physical abuse. Under those circumstances, no advanced procedural safeguards were required. To reach its conclusion that no additional procedures were required, the Court weighed the three factors utilized in Mathews v. Eldridge.

The 3-factor Mathews v. Eldridge test requires courts to consider “first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” This test is applied when considering what administrative procedures are constitutionally required to satisfy due process in all government settings including within the public school system.

(1) Procedural Due Process in Student Discipline Cases

Goss v. Lopez was the first important student discipline case to come before the Supreme Court. Goss involved students suspended for 10 days without first being given a hearing. The Court concluded that the students had both a liberty interest in their reputations and a property interest in receiving educational benefits. Given the existence of those interests, the students were entitled to some kind of notice and a hearing prior to their suspension. The nature of the required procedures would depend on a weighing of the competing interests. Weighing in favor of informal procedures in Goss were the fact that the suspensions were for a short time period (10 days or less), and the reasons for the suspensions were “disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension.” (This analysis focuses on the first Mathews factor, the nature of the private interest, which is less significant when the duration of the suspension is for a short period, and the low risk of error where the conduct is committed in the presence of school administrators, the second Mathews factor.) Under those circumstances, the Court concluded that the students were entitled to oral or written notice of the charges (but not entitled to any delay between the time of notice and the time of hearing), an explanation of the evidence against the students (if the students deny the charges), and an opportunity to present their side of the story (but not to confront and cross-examine witnesses, to call witnesses, or to be represented by counsel). In cases where students pose a continuing danger, even these rudimentary procedures can be dispensed with until after the suspension. On the other hand, in cases where the suspensions are for longer time periods and in other unusual situations more formal procedures may be required.

In considering procedural due process claims in school discipline cases, courts consider the Supreme Court’s decision in Goss as well as apply the Mathews v. Eldridge factors to the specific circumstances of the case and weigh (1) the student’s interest in avoiding “unfair or mistaken exclusion from the educational process,” (2) the risk of error that exists if school officials “act on the reports and advice of others” when “the controlling facts and the nature of the conduct under challenge are often disputed,” and (3) the school’s interest in efficiency, avoidance of disruption, and safety.

(2) Procedural Due Process in Teacher Discharge Cases

The Supreme Court concluded in Board of Regents v. Roth that teachers can have both liberty and property interests in their continued employment. Liberty interests are implicated when the government “stigmatizes a teacher to the degree that future employability is adversely affected.” This occurs when the teacher is charged with “dishonesty, immorality, criminality,” “child abuse, racism, and ‘apparent emotional instability.’” “On the other hand, a teacher is not stigmatized by allegations of incompetency, inadequacy, or insubordination.” Property interests, unlike liberty interests, are not created by the constitution, but are created by an independent source such as state or federal law, a contract between a teacher and her government employer or less formal state rules and policies. A property interest in employment is created when a teacher has tenure, a tenure-like status that creates a continuing and unlimited right to employment, or if a teacher has a contract of employment and is discharged during that contractual period rather than nonrenewed when the contract term expires. In Perry v. Sindermann, the Supreme Court concluded that a teacher with de facto tenure was entitled to a hearing prior to termination.

In considering what kind of process is due a tenured teacher, the Supreme Court has held that teachers and other school employees with property interests in their employment are entitled to a pre-termination hearing rather than only a post-termination hearing. In Cleveland Board of Education v. Loudermill, the Court applied the Mathews factors to conclude that the pre-termination hearing could be informal (“oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story”) “depending upon the importance of the interests involved and the nature of the subsequent proceedings” provided.

In order to understand the importance of the right to a hearing in a teacher termination case, it is necessary to also examine the grounds available for termination of a tenured teacher. While the exact grounds differ from state to state and are typically spelled out in a teacher tenure law, the usual grounds include incompetency, insubordination, and immorality. In Collins v. Faith School District No. 46-2, the Supreme Court of South Dakota concluded that “incompetency arises from habitual and ongoing actions” rather than from a single incident. In some jurisdictions, teachers are required to be given an opportunity to improve their classroom teaching prior to a dismissal for incompetency. Failure to demonstrate improvement after such remediation efforts is strong evidence of incompetence (See In re Termination of James E. Johnson for a case in which failed efforts at remediation were part of the extensive record that led the court to conclude there was substantial evidence to justify the termination). In comparison to incompetence, a dismissal on the ground of insubordination can be based on a single incident (See Gaylord v. Board of Education, Unified District No. 218, Morton County.) The existence of procedural due process rights prior to loss of employment both requires the school district to produce evidence to support its grounds for discharge as well as allows the teacher to challenge the sufficiency of that evidence and possibly avoid termination. Teacher tenure laws, in addition to specifying the acceptable grounds for termination, typically spell out elaborate procedures that must be followed by the school district prior to termination of a tenured teacher.     

G.  Establishment Clause

The Establishment Clause prohibits government efforts to endorse, advance or inhibit religion as well as government favoritism of one religion over another. The Clause has always had special force in the context of the public school system due to a combination of compulsory education, which creates a captive audience, and the relative youth of schoolchildren who are more easily influenced by teachers, school administrators, and peers than their adult counterparts.

(1) Religion in Public Schools

For many years, the Court exclusively used the Lemon Test to analyze Establishment Clause issues. Under Lemon, a challenged government program is constitutional if it satisfies a three prong test: (1) if it has a secular legislative purpose (that is not a sham), (2) a principal or primary effect that neither advances nor inhibits religion, and (3) does not create an excessive government entanglement with religion. While the test has now been modified in the parochial school aid context and sometimes ignored in other contexts (as for example in Justice Kennedy’s opinion in Lee v. Weisman), it is still used in cases challenging religion in the public schools. The Supreme Court used the Lemon Test as originally formulated as recently as 2000 in Santa Fe Independent School District v. Doe. In addition, the test has never been overturned or replaced by the Supreme Court despite much criticism of the test. Lower courts still commonly apply the Lemon Test, as well as the Endorsement Test, in cases challenging religious practices in the public schools.  

Justice O’Connor suggested a gloss (a modification or enhancement) of the Lemon Test called the Endorsement Test. Under her approach, both the purpose and effect prongs of Lemon are examined through the lens of endorsement. Under this modification, the issue is whether the government has a purpose to endorse religion and whether the effect of the challenged practice is to endorse religion so as to “send a message to nonadherents that they are outsiders, not full members of the political community” and a “message to adherents that they are insiders, favored members of the political community.” Under Justice O’Connor’s version of the test, whether the effect is to endorse religion or not must be viewed from the vantage point of “a reasonable observer who evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” In her view, “the reasonable observer is knowledgeable and aware of the history and context of the community and the situation in which the religious practice occurs.” Even though Justice O’Connor offered her Endorsement Test as a gloss on Lemon rather than as a separate test and it has been used by the Supreme Court in this manner in cases like Santa Fe Independent School District v. Doe, the Endorsement Test is often used by lower courts as an independent test. Typically lower courts analyze cases challenging religion in the public schools both under Lemon and the Endorsement alternative.

(2) Applying the Three Prongs of the Lemon Test to Religious Activities in Public Schools

The purpose prong is particularly important in cases in which religion is introduced into the public schools, as in the school prayer cases, and often is the basis for the Court’s invalidation of the challenged practice (Stone v. Graham (Ten commandments), and Wallace v. Jaffree (moment of silence). In these cases, the Court looks to evidence of purpose found, for example, in statements of the law’s sponsors and the history of the enactment of the law. Even if the government asserts a secular purpose, the Court may be willing to find that the asserted secular purpose is a sham as in Engel v. Vitale, School District of Abington Township v. Schempp, Stone v. Graham, Wallace v. Jaffree, and Santa Fe Independent School District v. Doe, the football prayer case. The Court states that it will defer to a plausible secular purpose, but not if the secular purpose is a sham. In addition, if the law is justified by more than one purpose, the purpose prong only requires that one plausible purpose for the law must be secular. For example, the daily recitation of the Pledge of Allegiance in a public school classroom can satisfy the purpose prong because the school district’s purpose in reciting the Pledge may be to encourage patriotism rather than religion, despite the inclusion of the “under God” language.

The effect prong may be violated as well when religious practices such as prayer are introduced into the public schools because such practices may have the effect of advancing religion to an unconstitutional degree. In such cases, the Court also may rely on Justice O’Connor’s endorsement test and find that the government intends to convey a message of endorsement of religion and that the objective, knowledgeable observer will perceive such a message. In the prayer cases, when relying on whether the government will be perceived to endorse a religious message, a key distinction is between government-sponsored prayer and private prayer. Government sponsorship will be found when there are indicia of state involvement as in Santa Fe Independent School District v. Doe, the football prayer case, even if the prayer is recited by a student speaker. In addition to an impermissible effect of endorsement of religion, an additional aspect of an impermissible effect in the school prayer cases is focused on by Justice Kennedy in Lee v. Weisman. In that case, he focuses on the psychological coercion experienced by those that attend the graduation ceremony to participate in the prayer or at least to stand in respectful silence. Some members of the current Court including Justices Scalia and Thomas, but not a majority, view coercion more narrowly to only exist when there is legal compulsion to attend or specific penalties attached to non-attendance and also conclude that government religious exercises do not violate the Establishment Clause in the absence of coercion. By contrast, Justice Stevens does not believe that coercion is a necessary element of an Establishment Clause claim, as he makes clear in his opinion in Santa Fe Independent School District v. Doe. In his view, the Establishment Clause is violated if the government has an impermissible purpose to advance religion even if it does so in a noncoercive way. This view is consistent with the Court’s view as far back as Engel v. Vitale in 1962. (“The Establishment Clause, unlike the free exercise Clause, does not depend upon any showing of direct governmental compulsion.”)

The third prong of the Lemon Test, precluding excessive government entanglement with religion, is occasionally relevant in the cases in which a religious practice occurs in a public school setting. One example of this is in Lee v. Weisman where the school administration gave guidelines to the clergy member invited to recite a prayer which guidelines were designed to spell out the characteristics of a suitable ceremonial prayer to mark the occasion. This joint venture between the school principal and a religious representative in which the goal was to create a suitable prayer for graduation is an example of excessive entanglement. This prong of the test is not violated by mere administrative cooperation between church and state on a matter that is religiously neutral (such as recording attendance by the religious class teacher and submitting those attendance records to public school authorities in Zorach v. Clauson where the Court upheld a released time program where the religion classes took place off campus).  

(3) Patriotic Exercises: The Pledge of Allegiance

In 1954, Congress added the words “under God” to the Pledge of Allegiance. In  Elk Grove Unified School District v. Newdow, an Establishment Clause challenge to the daily recitation on a voluntary basis of the Pledge of Allegiance containing the phrase “under God” was dismissed because the parent who brought the case lacked standing. However, some members of the Court who reached the merits of the case distinguished the effect of the daily recitation of the Pledge of Allegiance by schoolchildren from the recitation of a prayer struck down in Engel v. Vitale. For Chief Justice Rehnquist, the Pledge was a patriotic exercise rather than a religious one and therefore the Establishment Clause was not implicated at all. For Justice O’Connor, the Pledge was acceptable as ceremonial deism because it had a secular purpose (either to reflect the country’s history or to solemnize an occasion) and did not create the appearance of endorsement of a particular religion or even religion in general. According to Justice O’Connor, ceremonial deism does not violate the Establishment Clause so long as the challenged practice is long standing, ubiquitous, includes only a brief reference to God, and does not favor one religion over another.

(4) Intersection of the Free Speech and Establishment Clauses

In a group of cases, the Free Speech and Establishment Clauses intersect. In these cases, the government has created a public forum (a place designated for expression by private speakers such as the school facilities in Lamb’s Chapel v. Center Moriches Union Free School District and Good News Club v. Milford Central School) and excluded religious speakers from that forum (see V.B.2. above for discussion of the public forum doctrine). As a result of the exclusion, a religious speaker sues the government under the First Amendment’s free speech guarantee and argues that the exclusion is impermissibly based on the religious viewpoint of the excluded speech. The government then raises the Establishment Clause as a defense. The government justifies the exclusion of the religious group based on the need to abide by the Establishment Clause.

Since these cases involve viewpoint-based exclusions from a public forum, the standard of review the Court uses to examine the challenger’s free speech claim is strict scrutiny. In each case falling within this category, the government loses because the Court concludes that the Establishment Clause does not provide a compelling reason for the government’s action. This is because the Establishment Clause would not have been violated if the government included private religious speakers in the forum and, therefore, it lacks a compelling government interest to justify their exclusion. The Court’s view in these cases is that the government would not be perceived as endorsing a private religious message when it merely includes religious speakers in a forum available to a wide diversity of speakers. The Court adhered to this view even in the case of a private religious club for young children using a room in the same public school building attended by the club members and scheduled to begin immediately after the conclusion of the school day. See Good News Club v. Milford Central School. A more serious Establishment Clause problem would be presented in a case where the inclusion of the religious speech created an unavoidable appearance of endorsement or coercion to participate.

(5) The Equal Access Act

Congress enacted the Equal Access Act using its Spending Power. The statute creates a statutory right that is parallel to a right of equal access to a designated public forum protected by the First Amendment Free Speech Clause. Under the federal law, when a public secondary school receiving federal financial assistance creates a “limited open forum” by allowing noncurriculum related student groups to meet on school property during noninstructional time, it is obligated not to discriminate against student groups on the basis of the content of their speech. Since the Equal Access Act allows student religious groups to meet at school on the same terms as other student groups, the statute was challenged as a violation of the Establishment Clause. In Board of Education of the Westside Community Schools v. Mergens, the Supreme Court rejected that constitutional challenge on reasoning that is similar to the reasoning employed in Lamb’s Chapel and Good News Club discussed in paragraph (4) above.

In Mergens, the Court first interpreted the key statutory concept of a curriculum related club as contrasted with a noncurriculum related club. Only the existence of noncurriculum related student clubs trigger statutory obligations under the Equal Access Act. The Court defined curriculum related student clubs to mean those clubs directly related to the curriculum and not to include clubs that are indirectly or tangentially related to the curriculum. This narrow definition makes it more difficult for a school to evade the statute’s reach. The Court then turned its attention to the Establishment Clause challenge. While the case is analogous to Lamb’s Chapel and Good News Club, it is not identical. Those cases involve meetings by private groups not affiliated with the public schools where they meet. While Good News Club did involve club members who were students, the club’s sponsors were not students or school personnel. By contrast, in Mergens the groups at issue were initiated by students and operated with the approval of school officials. Despite this strong connection to the secondary school, the Court found no Establishment Clause violation. It reasoned that the statute had a secular purpose which was to prevent discrimination against religious and other types of speech based on its content. It also did not have an impermissible effect because the existence of a forum for a variety of student groups does not “confer an imprimatur of state approval on religious sects or practices. Indeed, the message is one of neutrality rather than endorsement.” Since the statute only applies to secondary schools and not elementary schools attended by younger students, the Court was able to conclude that “secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” Since the speech at issue was the private speech of club members and not government speech, the fact that the speech endorsed religion did not create an Establishment Clause violation.