Student's Rights Not Violated By Banning Religious Music At Graduation

Nurre v. Whitehead, __F.3d___ (9th Cir. Sept. 8, 2009), is an interesting case involving Education and Constitutional Law. The 9th held 2-1 that a Washington school district’s decision to bar the performance of a religious-themed instrumental musical piece at a high school graduation did not violate the student’s rights under the Free Speech, Establishment, and Equal Protection Clauses. A band member filed suit against the superintendent after the group was prohibited from playing an instrumental composition of “Ave Maria” at a JHS graduation ceremony. Complaints and negative publicity over the performance of a spiritual song at an earlier graduation had prompted district officials to direct that all future graduation performances be strictly secular.

The Ninth affirmed the lower court’s decision which granted summary judgment to the school district. Interstingly, the majority found that instrumental music did constitute speech. The appellate court analyzed the speech restrictions on the basis of whether the restrictions were "reasonable in light of the purpose served by the forum and all the surrounding circumstances." It pointed out that the analysis "focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated." Given the prior controversy over performance of religious music and the compulsory nature of a graduation ceremony, the majority held that the decision to limit music performances at graduation to "entirely secular" pieces did not violate the student’s right to free speech. With respect to the student’s claim that the decision in question violated the Establishment Clause because it evinced hostility toward religion, the court applied the three-prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971) to the school district’s decision. It found that the stated purpose that it prohibited the student selection in order to avoid conflict with the Establishment Clause satisfied Lemon’s secular purpose prong. Utilizing the reasonable observer test to analyze whether the decision had the primary effect of advancing or disapproving of religion, the majority concluded, given the previous incident involving a religious piece at graduation, that a reasonable observer would perceive the decision as an attempt to avoid another Establishment Clause case. Regarding the excessive entanglement with religion prong, the panel pointed that there are two types of entanglement, administrative and political. The court found no administrative entanglement because enforcement of the restriction is limited to the graduation ceremony. It, likewise, found no political entanglement because there was an absence in the record that the restriction had caused any political divisiveness.

Regarding, the equal protection claim, the majority rejected the student’s argument, based on the "class of one" theory," that she and her seniors were treated differently than previous students who were allowed to select music. It concluded: "Neither we, nor the Supreme Court, have ever applied a ‘class of one’ theory in this context, and we do not extend it to cover this case." As to the portion of the equal protection claim that did not rely on the "class of one," the panel reviewed the claim using the rational basis method, because it did not address a classification involving fundamental rights or proceed along suspect lines. The court concluded that the decision passed muster under the Equal Protection Clause because the school district had a legitimate interest in avoiding what officials believed could cause a confrontation with the Establishment Clause.

The dissenting judge on the panel, concurred with the majority's judgment, but only on the basis that the superintendent and the school district were entitled to qualified immunity from the suit. The dissent found the majority's reasoning untenable because the restrictions imposed failed the test applicable to speech in a limited public forum. That test requires that the restrictions are: (1) viewpoint neutral and (2) reasonable in light of the purpose served by the forum. While the judge found the prohibition was viewpoint neutral, he concluded it was not reasonable in light of the purpose served by the forum. He argued that "purging such a ceremony of all vestiges of religiously inspired art and culture—including those works with even the most attenuated connections to religion—did not advance the purpose of recognizing and providing a forum for student achievement." The dissent rejected the majority's conclusion that performing the piece created a risk of creating disruption or generating appreciable controversy. The dissent contended that the prohibition could not be justified on the basis of the so-called Establishment Clause defense because there was no danger of the appearance of government sponsorship of religion and impermissible coercion. Acknowledging that "no bright lines exist in this complex field of First Amendment law," he expressed sympathy for "school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take." The dissent. therefore, would find that qualified immunity was appropriate in the present case.

Source: Adjuct Law Prof Blog

Texas Lawmakers Promise $800 Raise for Teachers

Texas public school teachers can expect an $800 pay raise this year now that $2 billion in economic stimulus money has been approved and is available to the state, Democratic Texas lawmakers in Washington announced Friday.
Rep. Ruben Hinojosa, a senior member of the Education and Labor committee, read a statement from U.S. Secretary of Education Arne Duncan calling the money "part of the single largest boost in education funding in recent history."
The program involves a one-time appropriation of $53.6 billion under the American Recovery and Reinvestment Act of 2009.
Texas has already received $1.7 billion in education stimulus funds, and the state is eligible to apply for $1 billion more this fall, according to information from Hinojosa's office.
"All 12 Democrats worked with the secretary of education under the leadership of our chair, Ruben Hinojosa, to make sure that those teachers will get that money. And maybe the governor now will say something nice about the stimulus money that's actually providing for that $800," Rep. Gene Green said.
The approval of the state's stimulus plan should end a feud between the Houston Independent School District and the Houston Federation of Teachers. The teachers' union had threatened to take the district to court over the mandatory pay raise included in the stimulus plan.
The raise was supposed to come on top of the extra seniority pay that teachers typically receive. But the district decided last month to scale back that seniority pay for about 1,350 teachers getting a raise greater than 5 percent.
In a statement released by his office, Gov. Rick Perry said he was pleased Texas' application for funds was approved, and that it "will help increase public school funding, providing each school a minimum additional $120 per student."
"Providing quality education to our state's school children continues to be a top priority. Texas lawmakers appropriated this money, along with more than $30 billion in state funds, to enhance educational excellence in our state," Perry said.
Hinojosa said he asked Duncan how long teachers will have the raise, and said it likely could be two years.

Source: Houston Chronicle

Does the speech of a Valedictorian have to be approved by the district?

The 10th Circuit held that a school district did not violate a student’s free speech rights by requiring her to submit her valedictory speech for prior review or by withholding her diploma until she apologized for disregarding the policy.
The court also found that the policy did not violate the student’s right to free exercise of religion simply because her speech contained religious content, nor did it violate Colorado’s statute guaranteeing student publications freedom from prior restraint by school officials.The School had an unwritten policy which required that each valedictorian submit his or her proposed graduation speech to the principal for review.
The speech submitted by Erica Corder, one of 15 valedictorians made no mention of her religious beliefs. However, the speech she gave urged the audience to “find out more about the sacrifice [Jesus] made for you so that you now have the opportunity to live in eternity with Him.” The student was not given her diploma during the graduation and later was told she would not receive it unless she publicly apologized. She did so and received her diploma, but then sued raising six claims: (1) violation of freedom of speech under the First Amendment; (2) compelled speech in violation of the First Amendment; (3) violation of the right to equal protection under the Fourteenth Amendment; (4) violation of freedom of religion under the First Amendment; (5) violation of the Colorado statute on student publications; and (6) violation of the Establishment Clause of the First Amendment.
The main issue on appeal was Erica’s claim that the policy violated her free speech rights. The 10th held that the question was controlled by the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), because, given the level of control school officials exerted over who was named a valedictorian and the content of the speeches in advance of the graduation, the speech at issue constituted school-sponsor speech bearing the imprimatur of the school. Hazelwood allows school officials to exercise editorial control over school-sponsored speech, provided any restriction is reasonably related to legitimate pedagogical concerns. Here, the court found, “[a] graduation ceremony is an opportunity for the School District to impart lessons on discipline, courtesy, and respect for authority,” and school districts are “entitled to review the content of speeches in an effort to preserve neutrality on matters of controversy within a school environment.” Turning to the claim that her forced apology amounted to impermissible compelled speech, the court first noted that under student speech jurisprudence, compelled speech is no different from censored speech. Therefore, the court reasoned, because the school could censor Erica’s speech under Hazelwood, it also could compel her to apologize for disregarding its policy, where this was related to the legitimate pedagogical purpose of learning discipline, courtesy, and respect for authority.
As for the free exercise of religion claim, the court concluded that the policy of prior review was one of general applicability that operated in a neutral manner as to content of all the speeches, regardless of content. Erica was not disciplined under the policy because of the religious content of her speech, but because gave a different speech than the one she had submitted to the principal. The equal protection claim also was without merit, because Erica had failed to assert that she is a member of a suspect class or was denied a fundamental right. Finally, the Colorado statute was inapplicable her speech was not a part of a student publication.

What happened to the $1.9 billion in federal education money I have been hearing about that is supposed to give teachers a pay raise?

Now that the 81st legislative session is over, there is only one hurdle left to clear for bills approved by the Legislature. Gov. Rick Perry has until today to veto any bill sent to his desk. Any bill that Perry does not sign or veto by then will automatically become law. So far there has been no indication that Perry will take action on any of the major education-related bills approved this session, such as House Bill (HB) 3, the accountability system overhaul, and HB 3646, the school finance bill. However, Perry also has the authority to veto individual items in the state budget, which could effectively negate legislation by doing away with needed funding.

There also still remains the issue of whether the state is authorized to use federal stimulus money to provide school districts $1.9 billion in additional funding through HB 3646. Part of that funding will be used to provide teachers, nurses, librarians and counselors an across-the-board pay raise of at least $800. The Legislature opted not to use the state’s general revenue to fund the bill, which means the U.S. Department of Education must approve using stimulus funds for this purpose before the pay raises can be granted. There is no word at this time on when that ruling will be issued.

There is also no word yet on when Perry will bring legislators back to Austin for a special session or what exactly will be included in the call for a special session. Only items included in the call can be addressed during a special session. The main reason for the special session, and the only issue that must be dealt with, is the sunset provisions for major state agencies such as the Department of Transportation. If the sunset deadlines for these agencies are not extended, the agencies will be required by law to cease operations. However, there are several other issues that might be included in the call, such as expanding the children’s health insurance program (CHIP) and increasing unemployment aid for out-of-work Texans. Insiders are speculating that the special session will be called for the week after the July 4 holiday. This would put pressure on legislators to finish up quickly because most are planning to attend a legislative conference starting July 20 in Philadelphia.

Source: http://www.atpe.org/

Is the Texas pledge of allegiance's new reference to "under God" unconstitutional?

Texas pledge of allegiance reference to “under God” is constitutional
Croft v. Perry, ___F.Supp.2d___ (N.D. Tex. Mar. 26, 2009), is an important case.

A district court has held that a 2007 law amending the Texas Pledge of Allegiance to include the phrase “one state under God” does not violate the Establishment Clause. The Texas Education Code requires school districts to make the recitation of the U.S. and Texas pledges mandatory. Students may opt-out by written request of a parent/guardian.

A group of parents sued alleging that the 2007 amendment’s reference to “God” violates the Establishment Clause. Treating the claim as a facial challenge, the court analyzed the issue under the Lemon v. Kurtzman, 403 U.S. 602 (1971), three-prong test. Because the parties were only contesting the secular purpose prong, the court focused on that prong, along with three other questions raised by the parents: (1) whether the statute unconstitutionally endorses religion; (2) whether the statute favors one religious sect over another; and (3) whether schoolchildren are coerced into affirming a religious belief.

The court first discussed the case law on whether the inclusion of the phrase “under God” in the U.S. Pledge is constitutional. It pointed out that two U.S. Court of Appeals Circuits, the Fourth and the Seventh, had ruled the U.S. Pledge is constitutional, and that the Fifth Circuit had noted that references to God in a motto or pledge have “withstood constitutional scrutiny.” It rejected the parents’ reliance on Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), because the initial panel ruling that inclusion of “God” in the U.S. Pledge rendered it unconstitutional was subsequently withdrawn. Lastly, it noted that the Supreme Court has on several occasions indicated in dicta that the U.S. Pledge is constitutional.

Turning to the question of whether the law has a secular purpose, the district court concluded, based on the legislative history, that the purpose of the law, to have the state pledge mirror the language in the national pledge, is secular in nature. It found without significance the parents’ contention that the motive of some legislators for enacting the law was to promote religion.
With respect to whether the law unconstitutionally endorses religion, it found the endorsement test “closely” tied to Lemon’s purpose prong. Relying on Supreme Court dicta and circuit court rulings that found no endorsement in the words “under God,” it found that the Texas Pledge does not unconstitutionally endorse religion by effect or purpose. Addressing the parents’ claim that the law favors Judeo-Christian beliefs over other religious beliefs, such as Hinduism, the court said the “under God” reference was no more than a “broad acknowledgment of a divine being,” even if it referred to a singular deity. Lastly, the district court rejected the parents’ assertion that the law was unconstitutional because of its coercive effect on students. Citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), it acknowledged the state cannot compel students to recite the pledge, but found that the state had effectively dealt with this ban by providing an opt-out provision.

Source: http://lawprofessors.typepad.com/adjunctprofs/

What is the Texas Education Agency and what are its powers and duties?

The Texas Education Agency (TEA) is the governmental body in Texas that implements and enforces the provisions of the Texas Education Code.

The TEA is composed of the Commissioner of Education and the TEA staff.

There are fourteen specific powers and duties the TEA are granted through the Education Code under section. 7.021. For any other educational function not mentioned in 7.021, the TEA has no power and it is up to school district (or open-enrollment charter school) to handle the issue. (TEC 7.003).

The fourteen specific educational functions of the TEA are:

1. to administer and monitor compliance with education programs required by federal or state law, including federal funding and state funding;
2. to conduct research, analysis and reporting to improve teaching and learning;
3. conduct hearings involving state school law at the direction and under the supervision of the commissioner;
4. establish and implement pilot programs established by the Texas Education Code;
5. manage an investment capital fund (grants for schools) designed to encourage student achievement and promote more local control of schools;
6. develop a teacher recruitment program;
7. carry out duties under the Texas Advanced Placement Incentive Program;
8. carry out duties related to adult and community education (Chp. 29);
9. develop a program for driver education and traffic safety (Chp. 29);
10. help children with visual impairments (Sec. 30);
11. help administer regional day school programs for the deaf (Chp. 30);
12. maintain computer and telephone systems for the schools;
13. review school district budgets and require uniform accounting;
14. coordinate scholarship programs with the Texas Higher Education Coordinating Board .

The TEA is also empowered to enter into educational contracts with the federal government provided it provides written notice to the governor and the legislature 30 days prior.

I've been employed as a part-time teacher. Do the provisions of the Texas Education Code apply to me?

A "classroom teacher" as defined by the Texas Education Code is any person who meets the following criteria:
1. is required to hold a certificate issued under Subchapter B, Chapter 21;
2. is employed by a school district;
3. works an average of four hours each day (remember, this is an average and doesn't mean you have to work every day- only averaging four hours each day);
4. teaches in an academic instructional setting or a career and technology instructional setting.

TEC 5.001(2),(5)

Remember that the term "classroom teacher" specifically excludes a teachers-aide, or a full-time administrator.

What is Texas's educational mission and objectives?

According to the Texas Education Code, Sec. 4.001(b), the objectives of public education are:

1. Parents will be full partners with educators in the education of their children;

2. Students will be encouraged and challenged to meet their full educational potential;

3. Al students will remain in school until they obtain a high school diploma;

4. All students will be provided with a well-balanced and appropriate curriculum;

5. Educators will prepare students to be thoughtful, active citizens who have an appreciation for the basic values of our state and national heritage and who can understand an productively function in a free enterprise society.

6. Personnel who are qualified and highly effective will be recruited, developed and retained.

7. The state's students will demonstrate exemplary performance in comparison to national and international standards.

8. School campuses will maintain a safe and disciplined environment conductive to student learning.

9. Educators will keep abreast of the development of creative and innovative techniques in instruction and administration using those techniques as appropriate to improve student learning.

10. Technology will be implemented and used to increase the effectiveness of student learning, instructional management, staff development, and administration.