PREPARING FOR POTENTIAL STUDENT ACTIONS ON MARCH 14

By John Fester

 

March 6, 2018

            In response to the recent mass-shooting in Parkland, Florida, there have been national calls for students to engage in some sort of activity on March 14 to protest gun violence in schools.  The activity most frequently referenced, and the one that requires forethought from the school district, is a student walkout.  We have advised many of our clients on their specific plans and responses to student walkouts, but as March 14 approaches, we offer the following points to help our clients walk the line between allowing students a means of expression, while maintaining student safety and the ability to regulate campus speech.

 Walkouts during class time are different than black armbands.  Many people commenting on student walkouts speak of the students’ “right” to protest by walking out of class.  However, the Supreme Court has made clear that non-disruptive protest speech by students during the school day is protected by the First Amendment.  The Court has never held that primary and secondary school students have a right to leave class to assemble for protest activities.  Unlike the black armbands that became famous from the Tinker v. Des Moines case, student walkouts during class time can be regulated.

 Encourage alternative activities, alternative times, or alternative locations.  It is entirely understandable that students want to take this opportunity to let it be known that they are concerned about gun violence.  However, walking out of class is far from the only way to express that concern.  Several of our clients have been meeting (mostly at the middle- and high school levels) with student leaders to discuss what options for student activity would be most impactful, and least disruptive.  Remember that students generally have the right to peaceably assemble before and after school for expressive purposes.  If an assembly is what is desired, the school district could encourage moving the time of assembly so walking out of class is unnecessary.  A school could also run a modified class schedule on March 14 to allow a brief period of time (many student groups are looking at 17 minutes to honor the 17 Parkland victims) for assembly within the school day. 

 Many school districts have expressed concern with the outdoor aspect of any walkout.  There are many concerns associated with students milling about outside on March 14, including copycat actions, keeping students on campus, regulating parents and others who may want to enter campus before or during any walkout, etc.  To that end, some clients are encouraging students intent on walking out of class to assemble in a gymnasium or other area for safety purposes.  If an outdoor assembly seems inevitable, school districts should coordinate security with local law enforcement and have a plan for deploying administrators, teachers and other staff members to keep students from leaving a pre-determined assembly area.

 Communicate with Parents

 Once you have a plan for regulating student walkouts or other mass actions, make sure parents understand the approach and the rationale.  For example, if you intend to close the campus during a student walkout, make sure parents are aware so they do not arrive only to be turned away.  Also communicate how any walkout will be addressed.  We are not hearing too many clients interested in disciplining students for a brief walkout, but some school districts will be directing teachers to continue teaching during any walkout and will be recording an unexcused absence for students who do walkout.  Recording the unexcused absence is primarily to avoid setting a precedent that students may walk out of class without consequence.  Remember that the next time a mass walkout occurs, the school district may disagree that the issue was worthy of such action.  An alternative might be to establish a “one walkout” rule that excuses a student’s first walkout, but gives consequences for subsequent actions.  Make sure that parents and students are told ahead of time what to expect if a student walks out during class time.  Your websites, automated message systems and PTO’s are good vehicles for getting the word out.

 Avoid Viewpoint Discrimination and Remember Staff are not Students

 Some people view the planned walkouts as favoring gun regulation, as opposed to simply protesting gun violence.  As a result, some students may use the walkout to assemble in favor of gun rights or the Second Amendment.  School districts should avoid “taking sides” by showing favoritism to one student assembly over another.  Assuming the student groups are following school rules, are not violent or otherwise disruptive, school officials should be neutral in terms of supervising students who choose to walk out.

 Finally, some clients have heard teachers expressing an intent to participate in any student walkout.  Your staff should be reminded that during working hours, they are being paid to instruct, supervise and otherwise support students consistent with their professional duties.  In advance of March 14, school districts should clearly communicate expectations to staff members in terms of the performance of their duties before, during and after any walkout or other protest activity.  Staff members should not be promoting any students walking out of class.  If staff members wish to engage in expressive activity, we recommend school officials meet with the appropriate union officials to discuss options for staff to have their voices heard on this issue.

 This is intended to be a general overview of issues associated with student walkouts and is not intended to address every issue that may arise.  If you have specific questions regarding student protests, please call your attorney at Scariano, Himes and Petrarca.

 

SCHOOLS ALLOWED TO PREDICT FUTURE HARMFUL IMPACT OF EMPLOYEE’S FIRST AMENDMENT SPEECH

November 15, 2013

By Paulette A. Petretti

On December 3, 2013, the U.S. Court of Appeals for the Seventh Circuit entered an opinion in the matter of Bryan Craig v. Rich Township High School District 227, et al., in which the Court addressed the issue of whether a school district could terminate a guidance counselor who self-published a book he wrote on his personal time containing adult relationship advice entitled “It’s Her Fault.” The Court reviewed the school’s charges for termination which included, among other considerations, that the publication had caused disruption, concern, distrust and confusion among members of the school district community, that the book violated the district’s sexual harassment policy because it created a hostile and offensive educational environment, and that the guidance counselor failed to present himself as a positive role model.  After analysis of Craig’s provocative themes and sexually explicit terminology, spanning discussions of penis sizes, oral sex, and differences in women’s vaginas, the Court determined that the school district’s interest in protecting the integrity of counseling services at the high school “dwarfed” the guidance counselor’s interest in publishing “It’s Her Fault.”

While the Court was willing to acknowledge that Craig’s book did address a matter of public concern because it, in part, addressed the structure of adult relationships, the Court found the weight of Craig’s First Amendment message to be extremely limited.  In light of the limited weight of Craig’s speech interest, the Court concluded that the school district’s interest in preventing a likely disruption of their guidance counseling service outweighed Craig’s limited speech interest and was sufficient to justify Craig’s discharge.  Craig’s termination did not offend the First Amendment.

In arriving at its decision, the Court examined the unique relationship between a guidance counselor and students and found that the school district reasonably gauged how students’ response would impact conditions at the school.  For example, the Court under stood how easily female students could feel uncomfortable seeking advice from Craig given his professed inability to refrain from sexualizing females.  In his book, Craig confesses a “weakness for cleavage” and another portion of a woman’s anatomy and admits that these body parts served as distractions in his encounters with women.  Knowing Craig’s tendency to objectify women, the school district could reasonably anticipate that some female students would feel uncomfortable reaching out to Craig for advice.  In deed, there was a reasonable danger that some students would forego receiving the school’s counseling services entirely rather than take the risk that Craig would not view them as a person but instead as an object. Accordingly, the Court deemed the school district’s concerns as substantial grounds for terminating Craig’s employment.

Here, the school district reasonably predicted that “It’s Her Fault” would interfere with the learning environment. The Court respected the school district’s concern that the book would be available to students.  Parents and students had aired complaints to the administration and the book was available for purchase, without age restrictions, over the internet.  Craig dedicated the boo k to his students who “consistently reach out” to him about relationships and encouraged those students to “keep listening and learning.”  The school’s assessment of how Craig’s students, particularly his female students, would respond upon reading or hearing about the “hypersexualized” content of his book loomed large in the Court’s analysis.

The opinion stresses that a public school teacher holds a position that by its very nature requires a degree of public trust not found in many other positions of public employment.  Particularly as a guidance counselor, Craig was required to maintain a safe place for his students in order to ensure they remain willing to come to him for advice.  With the publication of his book, Craig betrayed the trust required of his job.  The school district’s interest in delivering appropriate educational services outweighed Craig’s interests in providing advice about “adult” relationships. Therefore, the Court upheld the dismissal of his complaint, which invoked protection under the First Amendment.

Scariano, Himes and Petrarca partners Paulette A. Petretti and Darcee C. Williams defended the school district defendants against Craig’s First Amendment claims in federal district court and on appeal. A copy of the opinion, which is rather colorful in i ts review of the book and the school district’s decision, is available  here.

FEDERAL COURT OF APPEALS UPHOLDS SCHOOL DISTRICT’S REFUSAL TO PERMIT STUDENT DISTRIBUTION OF 2,500 RUBBER FETUS DOLLS

 April 19, 2013

By Parker Himes

In upholding a New Mexico school district’s decision to prohibit a group of students from distributing 2,500 rubber fetus dolls, the United States Court of Appeals for the Tenth Circuit recently considered a classic case of student speech that materially and substantially disrupts the delivery of education, thus permitting school officials to restrain the speech. Further, the Court spelled out the types of procedural safeguards that must accompany a restriction on student expression in the form of a pre-approval policy.

In Taylor v. Roswell Independent School District (2013), the Court upheld the District’s decision to ban a group of students from distributing 2,500 rubber fetus dolls to students in two high schools.  The group of students was part of a religious youth group, Relentless, that advocated its religious beliefs and anti-abortion views on school grounds.  In an attempt to, according to the group, “put God back into the schools,” the students began distributing various items that contained religious messages.  The District permitted the distributions, until the students began to distribute the rubber fetus dolls to all high school students in the lobbies of the two high schools.  Measuring two inches, each fetus doll was designed to represent a human fetus at twelve weeks of gestation.  Included with the doll was a scriptural passage advocating pro-life views.

What followed is a perfect example of the type of disruption that would validate the District’s decision to prohibit the distribution of any (more) dolls. Students began to tear the heads off the dolls and throw them at the walls, ceilings, and each other.  Dolls were used to plug toilets.  Some students covered the dolls in hand sanitizer and lit them on fire.  A few male students removed the heads from the dolls and attached the body to their pants to imitate certain male anatomy.

In upholding the District’s decision to prohibit further distribution of the dolls, the Court noted that “a disruption need not actually materialize.”  Moreover, the Court stated that “[s]chool officials may act to prevent problems as long as the situation ‘might reasonably [lead] authorities to forecast’ substantial disruption.”  Reasonableness of the school’s forecast would “require that it be based on a ‘concrete threat’ of substantial disruption.” Here, the Court found that the number of items being distributed “created strong potential for disruption.”

At issue in this case was also the validity of the District’s policy requiring advanced approval to distribute the symbolic items.  The Court found the policy survived because of sufficient procedural safeguards included in the policy, which required: (1) distribution requests be approved or denied within five days; (2) for requests denied, the district was to provide a written explanation of the reasons for any denial; and, (3) the ability to appeal any denial first to the Superintendent, and then to the board of education.  The Court opined that “the policy imposes substantive constraints on official discretion” and would prevent the District from denying a request based on the content of the expression.

Such safeguards are crucial when crafting a pre-approval policy restricting private student expression.  School districts must ensure that their policies require a written explanation for any denial, a time-frame for decision making, and the right of a student to appeal any decision.   Without these procedural safeguards, the Court indicated that most pre - approval policies would not survive judicial review, as school officials could conceivably deny a request based on the expression’s viewpoint.  If your district finds the need to craft such a pre-approval policy, we urge you to contact an attorney at the Firm to discuss these procedural safeguards.

SOCIAL NETWORKING AND COMMUNICATION TECHNOLOGIES

 August 7, 2009

The current state of the Internet and related technologies has made possible personal communication with a wider audience than ever before. As these technologies evolve, we expect that even more opportunities will exist for social networking and worldwide communication through the next generation of blogs, chat rooms, texts, online posting forums, or other similar mediums.

These technologies provide significant new instructional opportunities and allow collaboration among students and staff that previously could only take place in the classroom. However, like many new technologies, the evolution of the Internet and other forms of instant communication is not without questions regarding proper use. Scariano, Himes and Petrarca has developed guidelines and recommendations to give school districts guidance regarding use of social networking technologies as part of the curriculum, and to provide guidance intended to minimize the possibility of disruption to the education program.

Our guidelines and recommendations are intended to enhance and build upon the district's policies and procedures regarding acceptable uses of computer technology and address the proper use of social networking technologies both as part of the curriculum and in non-school settings. These guidelines and recommendations can also be adapted to meet the unique needs of each school district and its curriculum. If you would like to implement social networking guidelines and recommendations at your school, please contact your attorney at Scariano, Himes and Petrarca. We are happy to review our sample guidelines and recommendations with you, and to customize our materials to meet the needs of your school district.

Moment of Silence

 June 9, 2009

You should stop observing the moment of silence at your schools. Previously, the order issued by Judge Gettleman in the Sherman case only applied to District 214. However, Sherman's motion to create a defendant class of all Illinois school districts was granted. Subsequently, Judge Gettleman extended his order for preliminary injunction to all Illinois school districts on May 29,2008. Therefore, all Illinois school districts are prohibited from observing the moment of silence.