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| Thursday, December 23, 2004 |
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National School Boards Association | |
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Legal Clips is a free service of the National School Boards Association's Office of General Counsel.
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For additional information on recent school law developments, visit NSBA's Council of School Attorneys (COSA) website at: http://www.nsba.org/cosa/.
Legal Clips will not run next week but will return on January 6. In the spirit of this season of good will, this week's issue adopts the theme, "It's Beginning to Look a Lot Like a Litigious Christmas." Your Legal Clips staff wishes you a joyous, safe, and lawsuit-free holiday.
Voters in Mustang, Oklahoma have rejected an $11 million school bond package after the school district's superintendent ordered an elementary school to remove a nativity scene from a school holiday production. The bond package would have eased crowding by providing funds to build a new elementary school. Some of those voting against the bonds did so in retaliation against the superintendent's decision. "There were people who went and voted who normally wouldn't," says Shelly Marino, whose child attends the elementary school. "They felt it was a way to get the school board's attention." Community members were particularly incensed that the nativity scene was removed while other religious and cultural symbols, including those representing Hanukkah and Kwanzaa, were allowed to remain. In an interview with the Associated Press, Superintendent Karl Springer said he "never had to make a decision as difficult as this. But I had two strong legal opinions that something we had planned could be illegal. I wanted to make sure we protected our community from some kind of lawsuit." The decision may generate a lawsuit from the opposite direction, however, unless a community group succeeds in persuading district officials to enact a formal, written policy regarding the inclusion of religious symbols in school programs. However, the group emphasizes that a lawsuit would be a last resort and that ministers are working with school district officials to avoid one. "No one's trying to break the law here nor ask the school district to break the law," emphasizes Jim McNabb, pastor of The Bridge, an Assembly of God church. "We just don't think the [legal] interpretation was as broad as it could be." Some Christian parents disagree with the strategy of voting down the bond package. "I just don't feel like this accomplished anything, except that we'll show the school system," says parent Angie McDowell. "I don't know if, in the long run, that's going to fix the problem." Ms. McDowell also expresses sympathy for Superintendent Springer. "It's made him look like the bad guy, and he really isn't," she says. "He was put in a really bad position. He had to make a really difficult decision, and he did what he thought was best." Pastor McNabb says he separated the issues of school finance and religious freedom and voted for the bond proposal. Both he and Ms. Marino point out that the package can be presented again to voters in four months.
Dallas Morning News
By Arnold Hamilton
[Link to full story]
[Editor's Note: For resources on school recognition of religious holidays, and for some suggestions on how school leaders might seek community consensus on such contentious issues, see below.]
American School Board Journal
By Thomas Hutton
[Link to full article]
[First Amendment Center resources on Religious Holidays]
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In this issue...
Peace on Earth
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Supreme Court Update
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Legal Research Specialist
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East High School in West Bend, Wisconsin has avoided a lawsuit by allowing members of a student Bible group to hand out Christmas cards containing religious messages. Mathew Staver of Liberty Counsel says that his organization had an attorney ready to fly to Wisconsin to seek a temporary restraining order in federal court if the school had continued to deny the students permission to pass out the cards. Mr. Staver says students have a well-established "constitutional right to free speech during non-institutional time," which includes "before and after school and between classes." The dispute began when the Bible group was denied permission to distribute Thanksgiving cards at the school's entrances, for failing to follow proper procedures for getting approval. Jeffrey Weigand, a member of the Bible group, claims that when he approached Principal Cassandra Schug regarding the Christmas card project, she effectively rejected it. That's when he contacted Liberty Counsel for legal assistance. But Principal Schug dismisses the debate as a "non-issue," because she already had informed the group it could post its card on the bulletin board and provide a container from which students could help themselves to candy canes. "The students brought this in and asked if they could distribute them," she recounts. "They were told, 'absolutely yes,' they could put it on the community bulletin board. We would never trample on anyone's right to free speech." Confirming this account, West Bend School District Superintendent David Shapley says school administrators never told the students that their message could not be circulated. But, in accordance with district policy, the students were told they could distribute the cards only at a site near a community bulletin board designated for postings that are not school sponsored. Mr. Shapley says district officials rejected the group's request to hand out the cards at the entrances to the building in order to prevent a situation in which "people cannot enter until you got what they were distributing." He suggests that Liberty Counsel is overwrought about the district's routine process of approving distribution of materials containing non-school sponsored information and only threatened to sue because the district didn't abide by the group's timetable for approving the project. "Wouldn't you think it was unusual to send a letter to an administrator and tell him that he has 48 hours to respond?" he asks. "They'd love to make this into a big issue. But we agreed to it before they contacted us." Jeffrey says he didn't mind stamping the cards with the required disclaimer indicating that they were not endorsed by the school district, but he balked at having to post the cards on the bulletin board. "You can't reach as many kids if you post it," explains Mr. Staver. The agreement allowed the group to distribute the cards at the bulletin board on December 9th from 6:45 a.m. until classes started at 7:30 a.m.
Journal Sentinel
By Peter Maller
[Link to full story]
[Editor's Note: Other courts have upheld "passive distribution" systems like the bulletin board, at least in secondary schools, against lawsuits from the other direction that argued that even this kind of distribution violates the Establishment Clause by implying school endorsement of religious materials. For example, see the case summary, below, which held that in an elementary school, even such passive distribution would still be constitutionally problematic.]
[Inquiry & Analysis summary of Peck v. Upshur County Board of Education]
A federal district court has issued a temporary restraining order prohibiting Plano Independent School District (PISD) in Plano, Texas from interfering with students who want to hand out religious materials, as long as they cause no disruption. Liberty Legal Institute (LLI) sued the school district on behalf of a third grader who was prevented from passing out candy cane pens attached to inspirational messages during a winter break party. Jonathan Morgan allegedly was told that he had to leave his pens on a table for his classmates to pick up, while other students were allowed to distribute secular gifts. LLI accuses the district of engaging in a pattern of discriminatory violations of free speech, and the U.S. Department of Justice has notified LLI that it is conducting a preliminary investigation into the matter as well. The court found that the plaintiffs showed a "likelihood that they will prevail" on some of the points in their lawsuit. PISD's attorneys argued that the order was unnecessary because, even before the suit was filed, administrators already had decided to allow students and parents to hand out what they wish at the parties, which the district has designated as "non-instructional time." In light of this decision, the school lawyers question LLI's motives for filing the lawsuit at all. "This appears to be an effort by 'trial lawyers' to feed at the trough of the taxpayers' pockets, as opposed to truly addressing concerns through a nonlitigious manner," they say in a statement. However, LLI chief counsel Kelly Shackelford says PISD's policy change would be news to parents of at least one elementary school, who received notice this month that students could only bring "approved items" to the party. The suit alleges several other incidents of viewpoint discrimination, but district officials claim these never even have been brought to their attention. Mr. Shackelford scoffs at this suggestion. "All these other things we called them about, and they refused to do anything about [them] a year ago," he charges. PISD's policy states that the First Amendment protects distributing literature and disseminating information. However, the policy prohibits the distribution of non-school materials in hallways or classrooms, instead requiring the materials to be left in a central location at the school.
Dallas Morning News
By Kim Breen
[Link to full story]
[Link to full story]
[Editor's Note: LLI, founded by Mr. Shackelford in 1997, is dedicated to "protect[ing] the religious freedoms and First Amendment rights for individuals, groups, and churches." To warm every taxpayer's heart during this holiday season, a 2002 chart from the COSA newsletter Inquiry & Analysis, also below, depicts a small portion of the ever-expanding constellation of organizations that focus much of their litigation and advocacy efforts on public schools. The U.S. Department of Justice's attention in the Plano case is noteworthy.]
["Someone's Watching You" chart]
The principal at Lake Washington High School in Kirkland, Washington has sparked a controversy by canceling a private theatre group's campus performance of Charles Dickens' A Christmas Carol. Principal Mark Robertson explains that school district policy prohibits outside groups from charging for products and services at school, "or we'd have everybody down here." But allowing a free performance would have prompted a "secondary discussion about public school and religion," he said. Approval of the play would have hinged on whether it was "tied into our whole curriculum, and voluntary for students, so we don't get into the whole 'captive audience' thing." Supporting the principal's decision, Lake Washington School District Assistant Superintendent Cindy Meilleur says that while schools may include religion in their curriculum, they must present a balance of many religions. "Teaching about religious holidays is permissible, but celebrating them is not," she adds. "You can teach about a variety of religions, but should not emphasize a particular one." Area school district policies reflect this distinction, but officials from these districts have varied reactions as to whether and how the policies would apply to performance of a play like A Christmas Carol. Mr. Robertson has become a target of criticism from the local media. "PC paranoia has led to the banning of a Dickens classic, by a seemingly nice guy who probably thinks he's doing the right thing," opines one television commentator. Some drama experts say the play's theme is more about redemption than about Christmas as a religious holiday. Seattle Times columnist Danny Westneat agrees that the play may have Christian themes but is not religious dogma. "[E]ven a lifelong doubter like me can see that something crucial is being lost," he concludes.
King County Journal
By Jeff Switzer
[Link to full story]
WorldNetDaily
[Link to full story]
[Editor's Note: The King County Journal article reprints a variety of area school district policies on religious holidays. This episode illustrates how even carefully crafted policies and knowledgeable school officials are no guarantee against controversies arising from debatable judgment calls.]
An Illinois school board has instructed its superintendent to lift his ban on playing music on school bus radios, after some parents threatened to file a lawsuit claiming the ban violated their religious rights. Superintendent Dennis Conti expressed disappointment in the decision, which he contends was simply a matter of safety. The ban resulted when a pupil had a disagreement over Christianity with a bus driver who was playing Christmas music on the bus. Dr. Conti says the student was offended by the driver's comments, and the boy's father called to complain. This is when Dr. Conti says he first learned that music was being played on the bus radios, which he feared could be distracting. But when parent Sandy Hartogh found out about his order to turn the radios off, she retained an attorney associated with the non-profit Alliance Defense Fund, who sent district officials a demand letter. "Your order that no Christmas carols may be played under these circumstances constitutes an illegal suppression of the rights of our clients' children under the Free Exercise Clause of the First Amendment to the United States Constitution," the letter stated. "It also reflects illegal hostility directed against Christianity. Respectfully, demand is made that you immediately rescind this order and allow Christmas carols to be played in the buses along with other music." Dr. Conti denies that his decision had anything to do with the type of music. "I could care less if it's Christian, country or classical music. Playing radios on the bus will distract drivers from hearing students, and students from hearing instructions from the driver. It's absolutely ludicrous to think we're preventing Christmas music on the bus. It's totally safety—absolutely nothing else." However, Mrs. Hartogh claims that when district officials implemented the ban, they referred the school board to district policy on religious and holiday displays. Bus driver Mindy Carlino claims drivers were told not to play holiday music and that a radio dispatcher initially announced that Christmas music was banned and only later instructed drivers to turn off the radios. After a heated meeting, during which the school board went into executive session, the board decided to leave the decision over playing music to the discretion of individual drivers. Ms. Hartogh, an unsuccessful school board candidate last year, views the board's decision as vindicating religious liberty. The board "conceded that Christianity has been shelved in fear of lawsuits or special groups that might complain," she asserts. "They admit Dr. Conti allowed the complaint of one parent and their child to influence the decision of 7,000 students and it was wrong to do so."
Chicago Tribune
By Barbara Bell
[Link to full story]
WorldNetDaily
By Joe Kovacs
[Link to full story]
South Orange/Maplewood School District in New Jersey is facing a federal lawsuit filed by the Thomas More Law Center (TMLC) on behalf of two students after the school district extended its policy against performing Christmas songs in school concerts to instrumental music as well. The Columbia High School brass band was instructed to confine its playlist to nonsectarian selections such as "Winter Wonderland" and "Frosty the Snowman." "This is another example of the anti-Christmas, anti-religion policy infecting our public-school system," charges TMLC president and chief counsel, Richard Thompson. "The Constitution does not require our public schools to become religion-free zones. Forcing students to strip all religious content from music is like asking them to study art history while excluding paintings from the Renaissance because they contain religious subjects." The suit alleges that the school district's ban violates the Establishment Clause by constituting an "impermissible, government-sponsored message of disapproval of and hostility toward religion." Superintendent Peter Horoshak told reporters the district was seeking to prevent a recurrence of past complaints that the band had sounded notes with religious overtones. Jewish observers say they did not seek the ban, although they don't necessarily oppose it. According to Maplewood resident David Mallach, in previous years Jewish students, including his own daughters, "had some uncomfortable moments" coping with Christmas themes in the town's public school system. But Rabbi Mark Cooper fears the ban may be more divisive than helpful. He says he sang Christian-sounding songs in his school choir and, "Look what happened. I became a rabbi." The challenge for schools, he suggests, is "providing an introduction to various cultures without providing an incentive or opportunity to evangelize and… a climate where children feel pressure to accept someone else's faith." Rabbi Daniel Cohen suggests that timing is part of the problem. "To my mind, such issues are better addressed in the spring or summer, when the immediacy is not so great and people can have cool, calm, thoughtful discussions."
WorldNetDaily
[Link to full story]
Baltimore Jewish Times
By Robert Weiner
[Link to full story]
Responding to calls from the Muslim community to close Baltimore County schools on Islam's two most sacred holidays, a 22-member state education department committee has unanimously proposed that all Maryland public school students be given up to two "floating holidays" for religious observance. The Muslim community has turned out in force at every Baltimore County school board meeting for the past year asking for equal opportunities for religious observance. Bash Pharoan, president of the Baltimore County Muslim Council, calls the proposal "a step in the right direction" but emphasizes that he will not be satisfied until Muslims receive equal treatment for their holidays. Either schools must close for Eid al-Fitr and Eid al-Adha along with the Jewish holidays of Rosh Hashanah and Yom Kippur, or close for none of them, he says. Baltimore assistant superintendent Barbara Dezmon, who chairs the state committee, notes that it is up to local school districts to decide whether to close on individual holidays. She says the proposal is a compromise in a debate confronting school districts that serve a multicultural population: Districts must be respectful of all religions, but they can't close school for every holiday. Under the proposal, children who miss school for up to two religious holidays not only would have the absences excused but would be eligible for perfect attendance awards if they do not miss any other days of school. Muslims have repeatedly told the Baltimore County school board that perfect school attendance is a point of pride in their community. Fearful of setting a precedent for every other religious group, the school board has not acted on their request. More controversy ensued when the board limited public comments on any one issue to three persons and required testifiers to be present at the beginning of the meeting. Board president James R. Sasiadek expressed concern that the Muslims' efforts at board meetings have caused hardship to everyone else who wishes to address the board. But the Baltimore chapter of the American-Arab Anti-Discrimination Committee issued a statement calling the board changes "a veiled attempt to muzzle the Muslim American public comments to the board's discrimination policy against Muslim citizens of this county." The state committee will submit its proposal to state Schools Superintendent Nancy S. Grasmick for her analysis but will leave it to Ms. Grasmick's staff to fill in the details. The proposal would apply to all children practicing "world-recognized religions."
Baltimore Sun
By Sara Neufeld
[Link to full story]
Mobile County school board president David Thomas says he wants to "push the envelope" on religion in schools, possibly by allowing students to gather daily to offer prayers. Mr. Thomas, who also serves as chairman of the National School Boards Association's Council of Urban Boards of Education, maintains that students and teachers often shy away from religious activities for fear of breaking the rules or being sued. He was inspired to pursue the issue after attending several school Christmas programs and getting the impression that students who sang religious songs seemed more enthusiastic. He has asked school system attorneys to research just how much spirituality can legally be tolerated in the classroom and has asked the board to support those of any faith who want to pray at school. Some, though, say students are afforded plenty of opportunities to practice their faith, through court rulings, as well as the No Child Left Behind Act (NCLB), which states that federal funds will be withheld from any school that denies its students their religious rights. Assistant Superintendent Rhonda Whitman says all 100 of the county's principals have been given a copy of the religious guidelines dictated by NCLB. She says the act provides a great deal of latitude, and school attorney Derek Atchison says he is looking into whether schools may be able to go beyond what NCLB sets forth. Like other Mobile schools, Maryville Elementary starts the day with a moment of silence and works with neighborhood churches, but the school takes a secular approach to the holidays. Religion is not totally removed, says principal Katryna Ellis, but the school is careful to respect everyone's beliefs. "We don't want to force something on them that's not there," she says, "but for those who want it, it's available to them." Local Rabbi Steven Silberman does not support prayer in school because "there needs to be a separation between officially sanctioned religious activity and individual liberty." Muslim imam Ronald Ali says he would support silent prayer or universal prayers "that recognize all faiths rather than heathenism" in schools. Anglican Rev. Conlee Bodishbaugh feels schools should permit representation of any "bona fide" religion. "I was raised at a time when every teacher had a copy of the Bible of her desk and opened every day with a prayer," he says. "I can't see how anyone was harmed by that."
Mobile Register
By Rena Havner
[Link to full story]
[Editor's Note: For a summary of the NCLB federal prayer guidance and some warnings about certain of its provisions, see below. Technically speaking, NCLB does not provide any religious rights or restrictions; rather, the guidance is merely supposed to restate the current state of the law according to the courts. The U.S. Department of Education was to have issued its biennial update to the guidance by September 1, 2004, but the 2002 guidance was not issued until February of 2003.]
[Inside School Law on NCLB prayer guidance]
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McCreary County, Ky. v. ACLU of Kentucky, 354 F.3d 438 (6th Cir.); Docket No. 03-1693; Religion: display of Ten Commandments on county property - Establishment Clause.
Diaz-Santos v. Puerto Rico Dep't of Education, 108 Fed.Appx. 638 (1st Cir.); Docket No. 04-791; Filed 12/8/04; Employment Discrimination: disability - dismissal for failure to prosecute.
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