Volume 1, Issue 3, July 2009
Hot Off the Bench is prepared by the Educational Research Service—The Nonprofit Providing School Leaders
with Essential Research for Effective Decisions. For the information administrators need to know and tools they
need to use, visit www.ers.org.
In This Issue (use your control key and click to go to individual summaries):
Texas Moment of Silence Law Survives Constitutional Challenge
Arizona Supreme Court Finds Voucher Programs Unconstitutional
Court Prohibits Religious Education Program From Operating on a Public Elementary School’s Property
School District’s Ban on Display of Confederate Flag Upheld by Courts
Board Authorized to Mandate Year-Round Calendar Without Parental Consent
Court Upholds Suspension of Students Who Created Fake Internet Profiles of Administrator and Teacher
Texas Moment of Silence Law Survives Constitutional Challenge
After the legislature amended a Texas statute that permitted a moment of silence to include the word "pray" as a
specified option, parents challenged the law as unconstitutional under the establishment clause of the First
Amendment. They argued that the law now favored prayer over other activities, thus endorsing religion. A federal
district court upheld the statute and the parents appealed. The Fifth Circuit Court of Appeals affirmed the lower
court's conclusion. The court analyzed the law using the test from Lemon v. Kurtzman, 403 U.S. 602 (1971). The
Lemon Test requires that a challenged policy: (a) serve a legitimate secular purpose, (b) has a primary effect that
neither advances nor inhibits religion, and (c) does not create an excessive entanglement of government and
religion. As had the lower court's, the bulk of the appeal court's analysis focused on the purpose of the
amendments. The court rejected the first two purposes advanced by the state—supporting patriotism and
accommodating religious expression—since prior versions of the law accomplished the same goals. The court
then considered the third purpose offered. The court noted that, although some legislators were motivated by a
desire to provide opportunities for prayer in schools, considerable discussion occurred that revealed that, as a
whole, the purpose was simply to begin each day with a short period of quiet focus. The court also noted that the
addition of the word "pray" did not, by itself, implicate an improper purpose. As such, the court concluded that
the law served the legitimate secular purpose of providing for a "period of thoughtful contemplation" at the
beginning of each school day. Finding no evidence that the law advanced or inhibited religion, or required
excessive entanglement between church and state, the court concluded that the law satisfied constitutional
mandate.
Croft v. Perry, 2009 U.S. App. LEXIS 5459 (5th Cir. March 16, 2009).
Arizona Supreme Court Finds Voucher Programs Unconstitutional
The Arizona legislature created two publicly funded educational voucher programs in 2006. The Arizona
Scholarships for Pupils with Disabilities Program allowed the parents of children with disabilities who were
dissatisfied with the program offered by the public school to transfer to a participating private school. The amount
of the voucher is equal to the amount of state aid the public school would have received had the child stayed in
the public setting. The second program, the Arizona Displaced Pupils Choice Grant Program, authorized publicly
funded vouchers of up to $5,000 to pay for children in foster care to attend a private school. In both programs,
both private religious and nonreligious schools could participate and become the recipients of the vouchers
through a process of restrictively endorsed checks made out to the parents or guardians of the child. Taxpayers
sued the state, alleging that both programs violated the Arizona Constitution. Challengers claimed that programs
contravened the "religion clause," which reads:
"No public money ... shall be appropriated to any religious worship, exercise, or
instruction, or to the support of any religious establishment" (Article 2, Section
12 of the Arizona Constitution).
In addition, plaintiffs claimed the voucher programs ran afoul of the "aid clause," which reads:
"No tax shall be laid or appropriation of public money made in aid of any church,
or private or sectarian school, or any public service corporation" (Article 9,
Section 10, of the Arizona Constitution).
State officials argued that the programs should be valid because the child, not the school was the ultimate
beneficiary of the aid. Therefore, they urged the Arizona Supreme Court to adopt the rationale of the U.S.
Supreme Court in Zelman v. Simmons-Harris (536 U.S. 639, 649, 122 S.Ct. 2460 [2002]) and uphold both
programs.
The Arizona Supreme Court agreed with the plaintiffs and found both programs unconstitutional. First, the court
rejected the assertion that the two state constitutional clauses in question should be read as the equivalent of the
establishment clause of the U.S. Constitution. The court concluded that the voucher programs violated the religion
clause because public money clearly supported religious schools under the plans. The court held that the fact that
the check was made out to each child's parents, who then had to endorse the check and hand it over to the selected
school, did not change the fact that public funds were used to support religious establishments. The court held that
the framers of the constitution clearly meant to prohibit such a result. Turning to the aid clause, the court likewise
found both programs in violation. The court reasoned that the intent of that provision, read in tandem with the
education clause, was to ensure that public funds were used to support the public school system required by the
constitution. The court also pointed out that voucher funds flowing to either religious or nonreligious schools
violated the aid clause. As such, the court declared both programs unconstitutional under the Arizona Constitution.
Cain v. Horne, 202 P.3d 1178 (Ariz. Mar. 25, 2009).
Court Prohibits Religious Education Program From Operating on a Public Elementary School’s Property
Each week, a trailer owned and operated by the Associated Churches of Huntington County (ACHC) parked on
the property of an Indiana public elementary school. The children who had permission from their parents were
released from class and permitted to go to the trailer for 30 minutes of religious instruction. The children who did
not participate in the program read, completed homework, or received extra assistance. Religious instructors were
hired and supervised by the ACHC. The school district provided no support, other than allowing students to leave
for religious instruction and permitting the trailer to obtain electricity by plugging into an outlet on the outside of
the school. The ACHC paid the power company for the electricity used. The trailer had no outward religious
symbols, but was visible from the main entrance of the school and playground.
A parent of a third-grader at the school challenged the program as an unconstitutional endorsement of religion and
filed suit to obtain an injunction to prohibit religious instruction from occurring on school property during the
school day.
The federal district court granted the injunction. The court determined that the parent would likely succeed in her
claim. The court applied the three-part test from Lemon v. Kurtzman (403 U.S. 602 [1971]) to reach its conclusion.
The court determined that the school district survived the first portion of the Lemon analysis as it successfully
showed how permitting the trailer to be parked on school property furthered the secular purpose of ensuring
student safety. However, the court determined that having religious instruction delivered on school grounds
during the school day had a primary effect of endorsing and advancing religion. The court likened the program to
that found unconstitutional in McCollum v. Board of Education (333 U.S. 203 [1948]) and rejected the defendant
school district's argument that the program more closely paralleled the released time program upheld in Zorach v.
Clauson (343 U.S. 306 [1952]). The court noted that the program at issue in Zorach did not occur on site and the
defendants could provide no case where a court upheld a released time program that occurred on school premises.
The court further concluded that a person familiar with the history of the program would conclude that the school
district endorsed the religious instruction occurring on campus. Finally, the court weighed the relative harms
associated with granting and denying the preliminary injunction. Given what the court considered the strong
likelihood that the plaintiff's case would succeed, the court determined that the public interest was better served
by enjoining a program that likely contravened the establishment clause of the First Amendment.
H.S. v. Huntington County Community School Corporation, 2009 U.S. Dist. LEXIS 22488 (N.D. Ind. Mar. 19, 2009).
School District’s Ban on Display of Confederate Flag Upheld by Courts
In 2007, 3 Missouri students who attended a high school that enrolled about 1,100 students, of whom only 15 to
20 were African American, were suspended for wearing attire that variously depicted the Confederate flag. The
high school had a history of several racially charged incidents that occurred prior to the suspensions, including
several incidents in which African American students were physically and verbally harassed by White students
and an incident at a basketball game between the high school and a school from a nearby community in which
two players allegedly uttered racial slurs at the opposing team; this incident resulted in a complaint by the
opposing team to the U.S. Department of Education's Office of Civil Rights that, among other things, complained
that a Confederate flag was hanging in a hallway adjacent to the locker room, and also resulted in the cancellation
of all future games between the schools unless required by their athletic conference. After these incidents, the
superintendent banned all clothing depicting the symbol pursuant to the school's dress code which prohibited
"dress that materially disrupts the educational environment…" After the ban was announced, several additional
incidents occurred at school, including students drawing swastikas in notebooks and on chalkboards and making
additional racial slurs. After the first student was suspended for wearing clothing depicting the Confederate flag,
he withdrew from school, triggering a protest from parents and other community members who congregated
across the street from the school and displayed a Confederate flag. Further, the school was subjected to "racial
vandalism and property damage." Due to the increased tension, an African American student withdrew from
school. Four months later, two additional students were suspended, one for wearing a shirt depicting the
Confederate flag and the words "The South was right[,] Our school is wrong," and the other for wearing clothing
with Confederate colors that showed support for the first student who was suspended. After these two suspensions,
additional vandalism and property damage took place.
The first suspended student brought a First Amendment action against the school district and was subsequently
joined by the other two students, all of whom sought declaratory and injunctive relief. After a federal district court
granted summary judgment to the school district on the district's argument that displaying the flag would
materially and substantially disrupt the educational environment, the Eighth Circuit affirmed. The federal
appellate court readily applied Tinker's "material and substantial interference" to the facts of this case, and found
that, in the context of the racially charged incidents that preceded and followed the banning of the Confederate
flag, the school district more than met its burden of demonstrating the requisite material and substantial
interference. Importantly, the Eighth Circuit joined several other circuits in holding that school officials do not
have to wait for an actual disruption before banning a controversial symbol, and observed that the school officials
in this case could reasonably prohibit the symbol based on the incidents that had occurred prior to the ban. Finally,
the court rejected the students' argument that the ban amounted to unconstitutional viewpoint discrimination,
holding that the ban was more than a desire to avoid an unpopular viewpoint and was supported by the requisite
material and substantial interference. Finally, the court held that the ban did not violate a state statute which
prohibits school officials from directing "a student to remove an emblem, insignia, or garment, including a
religious emblem, insignia, or garment, as long as such emblem, insignia, or garment is worn in a manner that
does not promote disruptive behavior." The court found that this statute to be inapplicable to the case at hand,
largely because it is part of a broader statutory provision that prohibits strip searches by school officials "unless a
weapon or dangerous substance poses an imminent threat of physical harm." As such, the suspensions and the ban
were upheld as not violating the First Amendment.
B.W.A. v. Farmington R-7 Sch. Dist., 2009 U.S. App. LEXIS 1981 (8th Cir. Jan. 30, 2009).
Board Authorized to Mandate Year-Round Calendar Without Parental Consent
Faced with being one of the fastest-growing school systems in the country, the second-largest district in North
Carolina decided in February 2007 to assign nearly 21,000 students to year-round schools beginning with the
2007-2008 school year. Of this total, only about 3,000 of the students had previously been attending school on a
year-round basis; all of the other students had been assigned to traditional calendar schools. Although the school
board had been assigning students on an involuntary basis to year-round schools since 2003, the decision to
greatly expand the program in 2007 following three public hearings, but without seeking individualized parental
consent, was met with opposition.
Shortly after the February 2007 announcement, a group of parents filed a complaint for declaratory judgment and
injunctive relief from the board's assignment plan. The parents asserted that the board lacked statutory authority to
convert the traditional calendar schools to year-round schools on a mandatory basis. After hearing the matter, a
state trial court judge concluded that the board was authorized to operate and assign students to year-round
schools, but only with "informed parental consent."
The school board appealed the judgment to the state appellate court. The appellate court unanimously reversed the
trial court, holding that parental consent was not a prerequisite. With a subsequent appeal to the Supreme Court of
North Carolina, the plaintiffs' claim of a substantial constitutional question was dismissed. However, after
granting a petition for discretionary review, the appellate court's decision was affirmed. A majority of the state's
highest court noted the emotional nature of the case but, nevertheless, concluded that it was not in a position to
substitute its own judgment for that of the school board. Since local school boards are granted statutory authority
to compel attendance at year-round schools, and since the board has a duty to provide an adequate public
education to an ever-increasing student enrollment while ensuring appropriate class sizes, the efficiencies of using
a year-round calendar complies with the public policy expectation that the state's schools operate in a costeffective manner.
Wake Cares, Inc. v. Wake County Bd. of Educ., 675 S.E. 2d 345 (N.C. May 1, 2009).
Court Upholds Suspension of Students Who Created Fake Internet Profiles of Administrator and Teacher
Two Tennessee high school students (with the assistance of a third, whose claim is not addressed in this case)
created fake MySpace profiles of educators at their school. One student created a fake profile of an assistant
principal, which included a picture and biographical sketch from the district's Web site and portrayed the assistant
principal as making sexually inappropriate comments about female high school students. The second student
created a similar fake profile of one of the high school's coaches. The high school learned about the fake profiles
from a concerned parent and a local media reporter who believed that they were legitimate profiles. The school
conducted an investigation, which revealed that the two students created the respective profiles and that the
student who created the profile of the assistant principal had accessed the profile from a school computer. In
addition, the student who created the assistant principal's fake profile also created a Web site that identified
another student he believed had told officials about the profiles and placed that student's picture under the word
"Wanted." As a result of subsequent disciplinary proceedings that included hearings before the school board, the
student who created the assistant principal's profile was placed in an alternative school for the remainder of the
school year and the student who created the profile of the coach was placed in in-school suspension for 11 days.
Both students filed suit, asserting that the school district's disciplinary actions violated their rights under the First
and Fourteenth Amendments and state law. In granting the school district's motion for summary judgment on all
counts, the federal district court rejected the students' argument that the profiles were in actuality parodies subject
to First Amendment protection. The court held that, largely in part because the concerned parent and local
reporter were concerned enough to report the profiles to school officials, a reasonable observer would view the
profiles as factual and not parodies. The court next disposed of the students' procedural due process claims,
finding that the students and their parents, through the mechanism of the board hearings, were given sufficient
notice of the charges, and had the opportunity to rebut the charges and question school officials during the
hearings. Next, the court held that the students' substantive due process claims failed, as the board's disciplinary
action was rationally related to the offense for which the students were punished. Finally, the court declined to
exercise supplemental jurisdiction over the state law claims, adding that there was no evidence to support the
students' defamation, false light, and outrageous conduct tort law allegations.
Barnett v. Tipton Co. Bd. of Educ., 2009 U.S. Dist. LEXIS 24003 (W.D. Tenn. Jan. 26, 2009).