Just a Sampling . . .

. . . of what you get if you join ELA and gain access to the entire, vast SLR Express online database. It's the most comprehensive compedium of case summaries in the realm of U.S education law. Our scholars get to the heart of the case and explain the constitutional underpinnings and the ramifications.

Supreme Court rules on FAPE

Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, 137 S.Ct. 988
Securing a Free Appropriate Public Education in Light of the Child’s Circumstances

By Mark A. Paige, Assistant Professor of Public Policy, University of Massachusetts, Dartmouth and
Todd A. DeMitchell, Professor of Education/Justice Studies Program, University of New Hampshire

     Students who qualify for special education are entitled to a free appropriate public education (FAPE).[1] To receive a FAPE, eligible students receive special education and related services.[2] Special education is “specially designed instruction … to meet the unique needs of a child with a disability.”[3] The Individualized Education Program, or IEP, memorializes the instruction, related services, and general suite of programs designed to ensure a FAPE.[4] While the term FAPE is a simply stated substantive right, its meaning in practice has been a source of contention. The issue of what constitutes an “appropriate” education has vexed educators and parents who must operationalize the term in the class, and courts that must decide between competing constructions. 
     The last time the Supreme Court opined on the FAPE standard occurred in 1982 in Rowley v. Board of Education.[5] In Rowley, the Court held that a student (in this case, Amy) receives a FAPE if the IEP is “reasonably calculated to enable the child to receive educational benefits.”[6] But on March 22, 2017, with its decision in Endrew F. v. Douglas County School District RE-1,[7] the Court again turned to the issue of determining a FAPE standard.[8] 

Facts of the Endrew F. Case
     Endrew F. was diagnosed with autism at the age of two. He received special education services from his local public school from pre-school to fourth grade. However, his parents became disenchanted with his progress by the end of his fourth-grade year.[9] In the parents’ view, Endrew’s IEPs carried over from year to year with the same basic goals and benchmarks and, consequently, his progress “stalled.”[10] In April 2010, the school district proposed an IEP for the fifth grade that substantially replicated the previous IEPs, according to the parents.[11] The parents rejected that IEP and unilaterally removed Endrew from public school, placing him at a private school (Firefly) that specializes in educating children with autism.[12] 
     At Firefly, Endrew experienced behavioral improvement and academic success. His behavior improved through the use of a “behavioral intervention plan” that, in turn, allowed academic progress. While still at Firefly, in November 2010, the school district proposed yet another IEP. Endrew’s parents rejected the IEP, again on the grounds that it did not differ from his fourth-grade IEP with respect to plans to address his behavior. In February 2012, Endrew’s parents filed a complaint with the Colorado Department of Education seeking reimbursement for Endrew’s tuition at Firefly.
     At a due process hearing, Endrew’s parents asserted that the final proffered IEP was “not reasonably calculated” to offer an educational benefit consistent with a FAPE. The Administrative Law Judge disagreed and denied relief. The Federal District Court affirmed, asserting that the IEP objectives were “sufficient to show a pattern of, at the least, minimal progress.”[13] On appeal, the Tenth Circuit affirmed the lower court, noting that an educational benefit is conferred as long as it is “more than de minimis.”[14] In Endrew’s case, the proposed IEP was “reasonably calculated to enable [Endrew] to make some progress.”[15] The Supreme Court granted the parents’ petition for certiorari.


The Endrew decision: Beyond the regular classroom
     The Supreme Court begins its analysis with Rowley. In doing so, it noted that Rowley was limited to its facts, and did not reach the “wide spectrum” of children with disabilities.” Endrew F. thus addressed this more unresolved, difficult problem of establishing one standard for determining whether a student with a disability is receiving a sufficient educational benefit. The Court observed that the Rowley review concerned an IEP for a student who was making progress in a regular classroom and, in fact, doing better than most of her peers. Under Rowley, the educational benefit for students receiving instruction in a regular classroom is one that permits students to advance from grade to grade.[16] But, the facts in Endrew were different. Unlike Amy Rowley, Endrew did not receive his instruction in a regular classroom. Thus, the question arose as to what, if any, specific standard should apply to those students receiving instruction in a special education classroom?
     The Endrew opinion eschews the proposition that an IEP that meets FAPE would guarantee any particular level of educational attainment for every student receiving special education and related services under IDEA. The Court opines, “No law could do that––for any child.”[17] The IEP, in providing a reasonable education, need not provide the “ideal” education.[18] However, at a minimum, a substantive standard must focus on student progress.[19] To do otherwise, “would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”[20]
     More specifically, the central inquiry for understanding the appropriate progress must be on the student’s unique circumstances. IEP deliberations must carefully consider and tailor an educational program and objectives to the child’s levels of achievement, disability, and potential for growth.[21] Grade-level advancement may be appropriate in some circumstances. And, while an individualized assessment may lead to different goals, “every child should have the chance to meet challenging objectives.”[22] The program must be “ambitious in light of the circumstances.”[23] In any event, and regardless of the student’s placement, any standard requires more than de minimis progress, the standard the Tenth Circuit used to rule against Endrew.[24] 
     Distilled to its core, the Court found, the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[25] Those who would prefer a bright-line test may be disappointed, because the Court was also clear that it was not articulating a formula, but rather describing a standard. Indeed, a formula would run counter to the Court’s call for an IEP tailored to a child’s unique circumstances. 

Conclusion
     Endrew refines Rowley and has some significant implications for professional educators. First, a child’s IEP must have challenging objectives and be “appropriately ambitious” to be appropriate.[26] Programs offering de minimis benefit will not accord with the entitlement to FAPE. Second, the objectives for a student are unique, adjusted to the circumstances to the child. One size does not fit all. Third, while deference is given to the school authorities in exercising their judgment, they must “offer a cogent and responsive explanation for their decisions.” Those decisions must be “reasonably calculated to enable the child to make progress appropriate in light of the his[/her] circumstances.”[27] If school officials want their decisions upheld, if challenged, they must be reasoned and informed. If anything, school administrators and teachers must ensure that their decisions are supported by decisions grounded in best practices as they relate to the particular student. 

Endnotes
1 20 U.S.C. §1412(a)(1).
2 § 1401(9). 
3 § 1401 (26). 
4 § 1401(9)(D). The Supreme Court in Honig v. Doe characterized the IEP as “the centerpiece” for the delivery of special education services to a student with a disability. 484 U.S. 305, 311 (1988).
5 458 U.S. 176 (1982).
6 Id. at 207. 
7 580 U.S. _____ , at 1 (slip op. )(2017).
8 Id. 
9 Endrew’s teachers characterized him has having a “sweet disposition,” but his behavior including screaming in class, climbing over furniture, fear of commonplace items, and leaving school interfered with his learning. Id. at 6-7.
10 Id. at 7.
11 Id. 
12 Id. 
13 Id. at 8. 
14 Id. (internal citations omitted).
15 Id. (internal citations omitted).
16 Id. at 5.
17 Id. at 10.
18 Id. at 11 (emphasis in original).
19 Id. 
20 Id.
21 Id. at 12.
22 Id. at 14.
23 Id.
24 Id. at 14. 
25 Id. at 14-15.
26 Id. at 14. 
27 Id. at 16.

 

Warrantless Searches of Dorm Rooms Do Not Violate Fourth Amendment

Medlock v. Trustees of Indiana University

738 F.3d 867 (7th Cir. 2013)

"A Frivolous Case on a Serious Issue"

By Robert C. Cloud

Professor of Higher Education, Baylor University

Introduction

In Medlock v. Trustees of Indiana University (IU), the Seventh Circuit Court of Appeals ruled that graduate student dorm inspectors acted reasonably and did not violate Zachary Medlock’s constitutional rights when they found marijuana and a large marijuana plant during a routine and scheduled inspection of his dormitory room. The inspectors reported their findings to campus police, and Medlock was arrested and subsequently suspended from the university for one year. After considering the facts in the case, the Seventh Circuit concluded that “reasonableness is a touchstone of the Fourth Amendment, “(p. 873) and, consequently, that a warrant is not required when university employees (i.e., state actors) conduct routine health and safety room inspections that are mandated in university housing contracts.

Most of the Fourth Amendment actions filed by students against colleges and universities to date have ensued after illegal drugs and/or other contraband were discovered during warrantless searches of dormitory rooms. See for example, State of Washington v. Chrisman, 455 U.S.1 (1982) and Commonwealth v. Carr, 936 N.E.2d 883 (Mass. 2010). The court’s decision in Medlock turned out well for Indiana University (IU) because university officials acted openly, reasonably, and leniently in dealing with Mr. Medlock.

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Unreasonable Search Under the 4th and 14th Amendments

Dawson v. Clayton County School Disctrict

904 F.Supp.2d 1301 (2012)

"School District Liability for Illegal Strip Searches"

By Jennifer A. Sughrue & Kenneth E. Lane

Southeastern Louisiana University, Hammond, LA

The federal district court refused to grant the defendants' motion to dismiss this case. Defendants argued that the plaintiff did not provide a sufficient factual basis on which to assert that the school district and police chief are liable (a) for failing to promulgate new policies and procedures and to train school officials and School Resource Officers (SROs) on the constitutional requirements for conducting student searches and (b) based on a final decision-maker analysis. CCSD did not seek to have the claims against McDowell and Redding in their individual capacities dismissed, with no reason provided.

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The First Amendment and Non-Protected Speech by Policy Makers

Dixon v. University of Toledo

"A University Policy Maker Has No Constitutional Right to Criticize University Policy in a Newspaper Op Ed Essay"

By Richard Fossey

Paul Burdin Endowed Professor of Education, Picard Center for Childhood Development and Lifelong Learning, University of Louisiana at Lafayette, LA

And

Nathan Roberts

Professor and Chair, Department of Educational Foundations and Leadership, Picard Center for Childhood Development and Lifelong Learning, University of Louisiana at Layfayette, LA

In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir. 2012), the University of Toledo fired Crystal Dixon, its associate vice president for human resources, after she published an op ed essay in a local newspaper that was implicitly at variance with university policy regarding sexual orientation. Dixon sued, claiming a violation of her constitutional rights. The Sixth Circuit upheld her dismissal, ruling that she held a policymaking position at the university and that her op ed essay was not protected speech under the First Amendment. The Sixth Circuit’s decision sharply limits the constitutional right of public employees who hold policy making positions to publicly speak out on the policies of their employers, even if they are speaking as citizens and not in their capacities as public employees

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Limited Rights For Students to Wear Potentially Disruptive Symbology

Hardwick v. Heyward

2013 U.S. App. LEXIS 5855 (4th Cir. March 25, 2013)

"District Can Bar Student From Wearing Confederate Flag Shirts to School"

By Richard Fossey

Paul Burdin Endowed Professor of Education, Cecil Picard Center for Child Development and Lifelong Learning, University of Louisiana at Lafayette, LA

and

Todd A. DeMitchell

Professor, Department of Education and Lamberton Professor, Justice Studies Program, University of New Hampshire at Durham, NH

Hardwick v. Heyward, 2013 U.S. App. LEXIS 5855 (4th Cir. March 25, 2013) is the latest federal appellate court decision to consider whether a high school student has a First Amendment right to display a Confederate flag on the student’s clothing while at school. In the Hardwick, case, the Fourth Circuit concluded that a South Carolina school district did not violate the free speech rights of Candice Hardwick when it prohibited her from wearing a number of shirts that depicted the Confederate flag over a period of three school years. Applying the Tinker “substantial disruption” test, the court ruled that there was ample evidence that the Confederate flag image could excite racial tensions at Candice’s school and create a substantial disruption in the school environment.

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Liability For Tolerating a Culture of Racial Discrimination

Anthony Zeno v. Pine Plains Central School District

10-3604-cv. United States Court of Appeals for the Second Circuit. 702 F.3d 655; 2012 U.S. App. LEXIS 24833

By Jennifer A. Sughrue and Kenneth E. Lane Southeastern Louisiana University,, Hammond, LAAppellant school district appealed the orders of the United States District Court for the Southern District of New York that denied its motion to overturn a jury verdict awarding appellee student $1.25 million and that granted remittitur of the jury's award to $1 million. The award was in response to a suit in which a jury determined the school district was deliberately indifferent to the pervasive harassment the student suffered in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000d et seq.

The Second Circuit Court of Appeals refused to overturn a federal district court ruling that upheld a jury verdict confirming an allegation that Pine Plains Central School District was in violation of Title VI of the Civil Rights Act of 1964 when it failed to take affirmative and effective action to stop the pervasive and continuous harassment that Anthony Zeno endured during his three-and-a-half years at Stissing Mountain High School (SMHS). A part of the decision rested on the fact that Anthony accepted an IEP diploma rather than endure more time at the school to earn a standard high school diploma. This was viewed as diminishing Anthony's ability to earn post-secondary degrees, his ability to earn a living, and the long-term impact on his life.

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Future Liability for Protecting Teacher-Abusers

Doe v. McLean County Unit District No. 5

973 N.E.2d 880 (Ill. 2012)

"Officials Who Make False Statements About a Former Teacher-Sexual Abuser Can Be Held Liable to Future Victims"

By Clay Webb

Assistant Professor, University of Louisiana at Lafayette, LA

and

Richard Fossey

Paul Burdin Endowed Professor of Education, University of Louisiana at Lafayette, LA

Everyone in public education knows about the so-called “mobile molester,” the teacher who sexually abuses children in a school district, is terminated, and then moves on to work in another school district because the teacher’s former employer provided the teacher with a good employment reference in order to quietly get rid of him. In a typical case, a school official will write a positive letter of recommendation for the abuser in return for a resignation letter. The teacher uses the positive letter of recommendation to get another teaching job, where he sexually abuses more children.

In Doe v. McLean County Unit District No. 5, 973 N.E.2d 880 (Ill. 2012), the Illinois Supreme Court ruled that Jane Doe-3 and Jane Doe-7, two elementary school girls who attended school in Illinois’s Urbana School District could sue school administrators in the nearby school district of McLean County, based on allegations that McLean County school officials misrepresented the circumstances under which Jon White, an elementary teacher, ended his employment at McLean. According to the plaintiffs, the McLean County school administrators knew Jon White was a child abuser, but they concealed that fact from the Urbana School District, which hired White, providing him with the opportunity to sexually molest more children, including Jane Doe-3 and Jane Doe-7.

Indeed, White turned out to be a child abuser who admitted to molesting elementary school children in both districts. He is now serving a sixty-year prison sentence after pleading guilty to abusing girls in the Urbana school district and the McLean County school district. Mary Schenk, 3 former educators charged in Jon White case aftermath. NEWS-GAZETTE (Champaign, Ill.), Aug. 8, 2008.

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Fourteenth Amendment Bars Inquiry Into Students' Citizenship Status.

Hispanic Interest Coalition of Alabama v. Alabama

No. 11-14535, 11-14675, 2012 U.S. App. Lexis 17544 (Aug. 20, 2012)

"Eleventh Circuit Strikes Down Law Requiring Alabama School Districts to Collect Data on Citizenship and Immigration Status of Students"

By Richard Fossey University of Louisiana at Lafayette, LA

and

Nathan Roberts

University of Louisiana at Lafayette, LA

On August 20, 2012, a three-judge panel of the Eleventh Circuit Court of Appeals struck down several provisions of the Alabama Taxpayer and Citizen Protection Act (H.B. 56), including Section 28, a provision requiring Alabama school districts to collect data on the citizenship and immigration status of students in the Alabama public schools. Hispanic Interest Coalition of Alabama (HICA) v. Alabama.On the same day it issued its opinion in the HICA case, the court also struck down other portions of the Alabama law in the companion case of United States v. Alabama, No. 11-14532, 11-14674 (Aug. 20, 2012). This commentary is limited to a discussion of the Eleventh Circuit’s HICA opinion, in which the court ruled that the law’s school-district reporting mandate violates the Equal Protection Clause of the Fourteenth Amendment.

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Off-Campus Religious Instruction and the Separation Clause

Moss v. Spartanburg County School District Seven

No. 11-1448, 2012 U.S. App. LEXIS 12248 (4th Cir. June 28, 2012).

"Fourth Circuit Upholds Public School District’s Off-Campus Religious-Instruction Released-Time Policy"

By Richard Fossey, J.D., Ed.D.

In Moss v. Spartanburg County School District Seven, No. 11-1448, 2012 U.S. App. LEXIS 12248 (4th Cir. June 28, 2012), a decision released in late June, the Fourth Circuit Court of Appeals upheld a South Carolina school district’s policy allowing students released time during the school day for off-campus religious instruction. Two parents challenged the policy as a violation of the Establishment Clause, arguing the policy went beyond the released-time policy approved by the Supreme Court in Zorach v. Clauson, 343 U.S. 306 (1952), because the district granted academic credit for the off-campus religious instruction.

The Fourth Circuit rejected this argument, finding that the policy neither endorsed religion nor violated the three-part Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).

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Upheld: Tradititional Due Process Standards in Disciplinary Decisions

Barnes v. Zaccari

669 F.3d 1295 (11th Cir. 2012).

By Kerry Brian Melear

University of Mississippi

Overview

In February of 2012, the Unites States Court of Appeals for the Eleventh Circuit rendered an opinion embracing traditional procedural due process standards in a public university’s disciplinary dismissal. In Barnes v. Zaccari,[1] Valdosta State University (VSU) student, Thomas Barnes, was administratively dismissed by the institution’s president because of the student’s perceived threat to campus, particularly in the wake of the devastating shootings at Virginia Tech. Although the institution’s handbook and Georgia Board of Regents (board) publications included specific references to procedural due process standards involving notice of charges and an opportunity to be heard in student disciplinary dismissals, Barnes was dismissed under an administrative provision related to campus safety and was provided no procedural due process.

A federal district court denied the president’s motion for summary judgment, reasoning that the decision was disciplinary in nature and required the provision of due process to the student. Barnes also argued a breach-of-contract claim against the board of regents because of the denial of due process, and the district court denied the board’s motion for summary judgment on that claim as well. On appeal, the Eleventh Circuit affirmed the lower court’s decision regarding the due process claim, relying on traditional principles of procedural due process in public university disciplinary decisions. However, the appellate court reversed the denial of summary judgment on the student’s breach-of-contract claim, finding that the state governing board had not waived its sovereign immunity rights to breach-of-contract cases in federal court.

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Protected Speech and Job Promotion

Adams v. Trustees of UNC-Wilmington

640 F.3d 550, (4th Cir. 2012)

By Lawrence F. Rossow

University of Houston,  Victoria, TX

and

Laural Logan-Fain

Our Lady of the Lake University, San Antonio, TX

In Adams v. The Trustees of the University of North Carolina-Wilmington, 640 F.3d 550, (4th Cir. 2011), the United States Circuit Court of Appeals for the Fourth Circuitdecided that an associate professor’s otherwise protected speech could not be “transformed” into unprotected speech once it was considered as part of an application for promotion.However, the associate professor could not show that the consideration of religiously based speech resulted in discrimination.

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Religious Employment Litigation Under the First Amendment

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC et. al.

565 U.S. (2012)

By Karen A. Kalzer

Patterson Buchanan Fobes Leitch and Kalzer, Inc., PS,Seattle, WA

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court recognized the existence of a “ministerial exception” under the First Amendment of the United States Constitution, offering both significant protection for employment decisions of religious entities but also leaving room for individual court discretion in applying this defense on the merits.

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Religious Proselytizing in the Classroom

Johnson v. Poway Unified School District

2011 WL 4071974, 113 Emp. Prac. Cases (BNA) 358 (9th Cir. Sept. 13, 2011)

"A Teacher Has No Constitutional Right to Display Large Banners Proclaiming His Religious Convictions in His Classroom"

By Richard FosseyProfessor & Mike Moses Endowed Chair in Educational Administration, University of North Texas at Denton, TX

and

Robert LeBlanc Associate Professor of Education,University of St. Thomas at Houston, TX

In Johnson v. Poway Unified School District, 2011 WL 4071974, 113 Emp. Prac. Cases (BNA) 358 (9th Cir. Sept. 13, 2011), the Ninth Circuit considered whether a high school mathematics teacher has a First Amendment right to proclaim his religious and political convictions on two large banners in his classroom. Specifically, Bradley Johnson hung two banners--each about 7 feet by 2 feet--on his classroom’s walls. In large capital letters, the first banner proclaimed: “IN GOD WE TRUST”, “ONE NATION UNDER GOD”; and “GOD SHED HIS GRACE ON THEE.” The other banner stated, “All men are created equal, they are endowed by their CREATOR.” Id. at *1. As the court noted, each letter in the word “creator” was capitalized and was nearly double the size of the other text. Id.

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Duty to Protect School Children From Personal Injury

Doe v. Covington County School District

F.3d, 2011 U.S. App. LEXIS 16321 (5th Cir. Aug. 5, 2011)

"The Sexual Abuse of a Student: Deliberate Indifference to a Special Relationship; a School Child’s Lament Heard"

By Todd A. DeMitchell

Professor of Education Law & Policy, Department of Education; Lamberton Professor, Justice Studies Program, University of New Hampshire

The sexual abuse of a child is heinous act. Bringing to bear the full weight of the law and society’s condemnation of these acts are appropriate responses. But what legal remedy is brought to bear in instances in which the child is a public school student and the abuse is related to her/his status as a student? A case out of the Fifth Circuit Court of Appeals recently addressed this question of what remedy is available to a nine-year-old student who was checked out of school a number of times by an unauthorized adult, who raped and sodomized her and then returned her to school. This case is important because it potentially opens a door previously closed to student plaintiffs seeking judicial relief for their injuries. The case is Doe v. Covington County School District, ___F.3d___, 2011 U.S. App. LEXIS 16321 (5th Cir. Aug. 5, 2011), in which the Fifth Circuit Court of Appeals found that the school acted with deliberate indifference to the due process rights of Jane Doe.

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Schools' Right to Manage Extracurricular Activities

Doe v. Silsbee Independent School District

402 Fed. Apprx. 852, 2010 U.S. App. LEXIS 19368 (5th Cir., Sept. 16, 2010)

"Texas School District Didn't Violate a Student’s Constitutional Rights When it Removed Her From The Cheerleading Squad"

By Richard Fossey

Professor & Mike Moses Endowed Chair in Educational Administration, University of North Texas at Denton, TX

and

Robert LeBlanc

Dean & Professor, College of Education University of St. Thomas at Houston, TX

In an unpublished opinion, the Fifth Circuit Court of Appeals upheld a trial court decision to dismiss a case brought by a high school student and her parents against the Silsbee Independent School District in East Texas. Doe v. Silsbee Indep. Sch. Dist., 402 Fed. Apprx. 852, 2010 U.S. App. LEXIS 19368 (5th Cir., Sept. 16, 2010). In May 2011, the U.S. Supreme Court denied certiorari. Click below to view commentaries from an administrator's perspective, and a professor's perspective. An Administrator's Perspective A Professor's Perspective A Silsbee high school student identified only as H.S. alleged that she had been sexually assaulted at a party by two male high school students, both varsity athletes.

Prosecutors investigated, but a grand jury declined to indict the two students. (According to a television news report, a special prosecutor was appointed and one of the students later pled no contest to a Class A assault in September 2010 and received a suspended sentence.) H.S. was a cheerleader at her high school, and she later refused to cheer for one of her alleged assailants at a varsity basketball game.

According to the court, H.S. was “contractually required” to cheer for the basketball team Doe v. Silsbee Indep. Sch. Dist., 402 Fed. Apprx. at 852). Richard Baine, Jr., Silsbee ISD’s superintendent, and Gaye Lokey, the school principal, informed H.S. that she either had to cheer when other cheerleaders cheered or go home. H.S. chose to leave the basketball game, and she was later removed from the cheerleading squad. H.S. and her parents sued Silsbee I.S.D., Superintendent Baine and Principal Lokey, charging them with violations of her rights to due process, equal protection, and free speech. Plaintiffs also sued District Attorney David Sheffield, claiming that he had violated her liberty right to be free from bodily injury and stigmatization in violation of the Fourteenth Amendment’s Due Process Clause in the way he had handled the criminal investigation.

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First Amendment Shielding of Vulgar, Demeaning Internet Expression by Students

Layshock v. Hermitage School District

2011 U.S. App. LEXIS 11994

"A Win for Students’ Off-Campus Expression"

By Martha McCarthy

Chancellor’s Professor and Chair, Educational Leadership & Policy Studies,Indiana University

On June 13, 2011, the Third Circuit en banc rendered decisions in Layshock v. Hermitage School District (2011 U.S. App. LEXIS 11994) and J.S. v. Blue Mountain School District (2011 U.S. App. LEXIS 11947), which had been eagerly anticipated for more than a year. The appeals court en banc held in both cases that school districts cannot punish students for expression that originated outside school and did not create a substantial disruption of the school environment. The recent rulings were precipitated by opposing Third Circuit panel decisions regarding the school district's authority to discipline students for posting vulgar and disparaging mock profiles of their principals on MySpace.

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First Amendment: Districts Can Broadly Define "Offensive" Speech, Dress and Ornamentation

B.H. v. Easton Area School District

Docket No. 10-3604-cv. United States Court of Appeals for the Second Circuit. 702 F.3d 655; 2012 U.S. App. LEXIS 24833

"Offensive Speech, a Matter of Public Concern, and Boobies"

By Todd A. DeMitchell

Professor of Education Law & Policy, Department of Education, Lamberton Professor, Justice Studies Program, University of New Hampshire

and

Richard Fossey

Mike Moses Endowed Chair in Educational Administration, University of North Texas

Over the past fifty plus years, four United States Supreme Court decisions (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007)) have defined the contours of students’ free speech rights in the public schools. These cases have accepted the premise that students’ speech rights in the schools are not as a robust as the rights of adults or as robust as the speech that students can exercise away from school.  Unfortunately, a federal district court judge may have unraveled some of that jurisprudence in B.H. v. Easton Area School District, No 10-6283 (April 12, 2011). This case adjudicated the issue of whether middle school students can wear “I ♥ Boobies! (Keep a Breast)” bracelets at school. The court granted a preliminary injunction prohibiting middle-school officials from enforcing a ban against wearing the bracelets (at *39).

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Sanctioning Students For Derogatory Blog Posts

Doninger v. Schwartz

F.3d, 2011 WL 1532289 (2d Cir. Apr. 25, 2011)

"Law Unsettled on Schools’ Authority to Sanction Students for Off-Campus Speech"

By Richard Fossey

Professor & Mike Moses Endowed Chair in Educational Administration, University of North Texas, Denton, TX

In Doninger v. Schwartz, decided on April 25, 2011, the Second Circuit Court of Appeals issued its second opinion in a long-running dispute between Avery Doninger, a high school student, and school officials in a Connecticut school district over the school’s authority to sanction Doninger for off-campus speech she communicated through a blog post The court ruled that school officials enjoy qualified immunity for sanctioning Doninger because the law is unsettled regarding the school’s authority to punish her for the critical remarks she made about school officials in her blog post. In addition, the court ruled that school officials enjoy qualified immunity from Doninger’s First Amendment claim when they refused to allow her to wear a T-shirt proclaiming “Team Avery” at a school assembly.

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No 14th Amendment Rights for Students Transferred to Disciplinary Programs

Harris v. Pontotoc County School District

No. 10-60392, 2011 U.S. App. LEXIS 4639 (5th Cir. March 10, 2011)

"A Student Assigned to Alternative Education Program for Disciplinary Reasons Is Not Entitled to Due Process"

By Richard Fossey

Professor and Mike Moses Endowed Chair in Educational Administration,University of North Texas

In Harris v. Pontotoc County School District, the Fifth Circuit Court of Appeals briskly disposed off constitutional and tort claims brought by a terminated school secretary and her son against a Mississippi school district. In doing so, the court reaffirmed an earlier decision holding that high school students have no due process rights when transferred from a regular school program to an alternative education program as a disciplinary measure.

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Warrantless Searches of Dorm Rooms

Commonwealth v. Carr

936 N.E.2d 883 (Mass. 2010)

By Richard Fossey

Professor and Mike Moses Endowed Chair in Educational Administration,University of North Texas

and

Kerry Brian Melear

Associate Professor of Higher Education,University of Mississippi

Introduction

College students, like all citizens, have a constitutional right to be free from unreasonable searches and seizures that is guaranteed by the Fourth Amendment. However, court cases interpreting the Fourth Amendment rights of college students are fairly rare, and the United States Supreme Court has issued only one opinion on the Fourth Amendment rights of a college student. In State of Washington v. Chrisman, 455 U.S. 1 (1982), the Court ruled that a warrantless search of a dormitory room by university police did not violate a college student’s Fourth Amendment rights. In that case, a police officer saw evidence of what appeared to be illegal drugs while standing in the dormitory room of a student already under arrest for underage possession of alcohol. The officer had accompanied the student to his room so he could obtain his identification documents, and the Supreme Court concluded that the police officer was lawfully present it the dormitory room when he observed the evidence of drugs, which were in plain view. Chrisman is thus the source of the widely cited “plain view” doctrine associated with police searches.

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Teachers' Pedagogical Speech Not Protected

Evans-Marshall v. Board of Education

624 F.3d 332 (6th Cir. 2010)

By Neal Hutchens

Assistant Professor, Educational Policy Studies and Evaluation,University of Kentucky at Lexington, KY

In Evans-Marshall v. Board of Education, the U.S. Court of Appeals for the Sixth Circuit–relying on the standards announced in Garcetti v. Ceballos, 547 U.S. 410 (2006)–held that public school teachers do not possess any First Amendment protection for in-class speech related to curricular and pedagogical matters.

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