Fans of the Washington Redskins and Cleveland Indians are probably very pleased by the Supreme Court’s decision about a rock band.  The band filed for a trademark for its name.  The Trademark office turned them down because its name violated the “disparagement clause” in the Patent and Trademark laws.  The disparagement clause prohibits the registration of any trademark that may “disparage…or bring into contempt or disrepute” and “persons living or dead.”  The band was called The Slants, a term that is commonly understood to be a derogatory reference to people of Asian descent.   The band members were Asian Americans themselves, and they chose this name in an effort to “reclaim” it.

SCOTUS held that the disparagement clause is unconstitutional.  The Court described the clause as “a happy-talk clause” designed to prevent the expression of ideas that offend.  Justice Alito’s opinion for the majority shot that down:

And, as we have explained, that idea strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful: but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”  United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

This will not stop people from protesting the use of the name “Redskins” for the Washington football team, but it will likely sack any legal challenge to that name. And the same goes for any school mascot name that people find offensive.  In fact, public schools would have an additional strong argument to make to defend their school mascot—it is “government speech.” The government is not restricted by the First Amendment.

The case is Matal v. Tam, decided by the Supreme Court on June 19, 2017.

DAWG BONE: LOOKS LIKE ALL YOU INDIANS AND WARRIORS AND WAMPUS CATS WILL BE OK. 

File this one under: FIRST AMENDMENT

Tomorrow: what will SCOTUS say about vouchers going to religious schools?

The 5^th Circuit has held that the presiding officer may be held liable for improperly shutting down a speaker during “public comment.” This case has important implications for those who serve as presidents of school boards.

What happened: Mr. Heaney was three minutes into his allotted five minutes of public comment before the Jefferson Parish council when Mr. Roberts, the presiding officer, interrupted him and called on the Parish’s attorney.  Mr. Heaney had been questioning the legality of certain actions by the council and its members.  The attorney expressed her opinion that nothing illegal had occurred.  When she finished speaking, Mr. Heaney continued, intending to use his remaining two minutes.  But when it became clear that Mr. Heaney was challenging the legal opinion just offered, the presiding officer jumped in:

Roberts: Let me, we’ve had this conversation before, ok?

 Heaney: Are you trying to stop me from speaking?

Roberts: Well you yielded and I do have the floor….so….I’m not going to turn this into a circus, ok? If you don’t believe what Ms. Foshee’s comments were—

 Heaney: I—

Roberts: Let me finish.  Last I checked, Ms. Foshee had a law degree hanging on the wall in her office. If you’re challenging whether or not what she’s saying to be accurate or not, you can go right to the elevator downstairs. The Clerk of Court’s office is there, and you’re welcome to file suit.  This is not the forum for you to challenge the opinion of the parish attorney, ok?

 Heaney:  Now if I can be able to speak—

Roberts: No, let me finish. Let me finish. Once again, I’m going to ask you, are you an attorney?

 Heaney: I don’t have to be an attorney to read and comprehend a decision—

Roberts: But I’m not going to sit here and have you berate the parish attorney.

 Heaney: I have a decision. I have a decision by HUD that contradicts what Ms. Foshee says—

Roberts: Sir, ok.  Your time’s up and I’m going to ask that you be removed because you’re being hostile so if you would please exit.

 Heaney: I’m not being hostile.

Roberts: If you’ve got a problem with that, you can go downstairs…..This is the third time that you’ve tried to take issue with something….

 Heaney: You’re trying to stop me from presenting facts that contradict Ms. Foshee.  Your’re taking my time, and you’re violating parish ordinance.

Roberts: If you’d please remove the gentleman.

 At which point the cop took Mr. Heaney out of the room.  Robert’s Rules of Order, indeed!

Mr. Heaney sued Mr. Roberts, alleging that the presiding officer deprived him of his First Amendment right of Free Speech.  Mr. Roberts filed a Motion to Dismiss the case, based on his qualified immunity.  As a government official, Mr. Roberts is entitled to qualified immunity unless his actions violated legal standards that were “clearly established” at the time.

The legal standard here is the right to be free from viewpoint discrimination when participating in a “limited public forum.”  The public comment section of a governmental meeting is a good example of a limited public forum.  The 5^th Circuit noted that “It is beyond debate that the law prohibits viewpoint discrimination in a limited public forum.” In other words, this is “clearly established.”

If Mr. Roberts had simply tolerated Mr. Heaney’s remarks for another two minutes he could have then shut him down without any legal complications.  Likewise, if Mr. Heaney had veered far off topic—after all, it’s a “limited” public forum.  But as the 5^th Circuit notes in its decision, “Heaney was speaking on an approved topic and within his allotted time.”

Thus the issue becomes: why did Mr. Roberts cut off Mr. Heaney two minutes early?  The Court:

Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’s motive or intent in silencing and ejecting Heaney from the meeting.

So the case continues.  The court refused to dismiss the claim against Mr. Roberts. It will be up to a jury to decide: did Mr. Roberts shut him down because of the content of the message?  If so, that would be viewpoint discrimination, which is unconstitutional in a limited public forum.

Board presidents should take note of this case. This is a binding decision from our 5^th Circuit and will certainly be cited in future cases.  The case is Heaney v. Roberts, decided by the 5^th Circuit on January 23, 2017.  We found it at 846 F.3d 795.

DAWG BONE: SOMETIMES IT’S BETTER TO SIT AND LISTEN.

 File this one under: FIRST AMENDMENT

Tomorrow: Bond money for band uniforms?

Dear Dawg: I am appalled at what I hear goes on in some of our schools.   Whatever happened to civility? We’ve got parents and others who think it is their constitutional, God-given right to say whatever they want to our teachers, in whatever manner of tone, at whatever time, using whatever language they choose. Threats.  Vulgarity.  Name calling.  It’s a sad day when we can no longer count on basic maturity in people.  Now we have to have laws.

So today I have pre-filed the No More Cursing Out the Teacher Act of 2017.  This bill will make it a misdemeanor for any person to “upbraid, insult, or abuse” any teacher, administrator or bus driver in the presence of students.  Can’t see how anyone could oppose this.  Keep an eye on it, Dawg.  AT LEAST ONE LEGISLATOR SUPPORTS OUR TEACHERS.

DEAR AT LEAST ONE:  OK, so let me make sure I understand how this will work.  If the coach decides to go for it on 4^th and 2, and we don’t make it, and I stand up and scream “PUNT NEXT TIME!! WHERE DID YOU LEARN TO COACH?” I’ve committed a crime?   The Dawg loves teachers and administrators and is particularly fond of assistant principals at the middle school. But your bill may run into some trouble.

Georgia passed a bill like this, and the state Supreme Court shot it down.  Overly broad, the court said:

The practical effect of the plain language of [the statute] is that any person—may it be a parent, school system employee, or concerned citizen while on school premises or a school bus—who dares to speak critically to school officials at any time in the presence of minors must leave the premises when so ordered by a school official or face arrest and prosecution for a misdemeanor.

The court concluded, unanimously, that the statute “makes unlawful a substantial amount of constitutionally protected speech.” Like yelling at the coach. The constitution protects that.

The case is West v. State, decided by the Supreme Court of Georgia on October 31, 2016.

DAWG BONE: CURBING FREE SPEECH IS HARD TO DO.

File this one under: FIRST AMENDMENT

We are dedicating Thursdays to the “Golden Oldie” cases that establish important principles of the law. Today the topic is employee free speech, which leads us to Mr. Pickering.

Mr. Pickering, a teacher in an Illinois school district, had an opinion about the upcoming bond election. He was opposed. He felt that the current school board had not managed money well in the past, and should not be trusted with more. So he wrote a letter to the editor of the local newspaper, opposing the bonds.

Higher ups in the district were not pleased about this, particularly in light of the fact that Mr. Pickering got some of his facts wrong. Pickering was soon out of a job. Thus we get our next Golden Oldie: Pickering v. Board of Education, from 1968. A unanimous Supreme Court ruled for Mr. Pickering. When a public school employee is speaking as a citizen on matters of public concern, the employee is protected from retaliation by the First Amendment guarantee of free speech.

Thousands of court cases since then have applied this basic principle in a wide assortment of fact situations. Cases have made it clear that the teacher does not enjoy constitutional protection when acting in his or her “employee” role. It is only when acting as a citizen, on matters of general public concern, that teacher expression is protected. Even then, there are times when a teacher’s expressive activities (i.e., rants or ill-advised statements on Facebook) may lead to trouble.

For a recent example of a case that involved a school principal, let’s consider Rock v. Levinski, decided by the 10th Circuit in 2015. Joyce Rock was principal of Career Prep High School, an alternative school in Shiprock, New Mexico. In May, 2013, the superintendent decided to close the school due to budget concerns. At a public meeting to discuss this, Ms. Rock opposed the plan. Among other things, she expressed concerns that some of the students at Career Prep would not be successful in a more traditional, and larger school.

The superintendent did not appreciate this. Ultimately, Ms. Rock was put on administrative leave and told that she would not be given another contract. She sued, and I’m sure that her lawyer must have cited our Golden Oldie, Pickering, in support of her case. But it did not work. The court ruled in favor of the school district and the superintendent. Critical to the court’s reasoning was Ms. Rock’s status as a principal:

Rock was not an ordinary employee of the District. She was not a teacher, but a principal, a high-ranking member of the management team.

The court cited a U.S. Supreme Court decision for the proposition that “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.” Rankin v. McPherson, 483 U.S. 378 at 390 (1987). In other words, the higher up you go, the more cautious you should be.

Summing it up the court said:

A superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies.

So the employees that principals supervise enjoy the right of free speech. Principals do too, only not quite as much. Be careful out there.

DAWG BONE: PICKERING v. BOARD OF EDUCATION—THE GOLDEN OLDIE FOR EMPLOYEE FREE SPEECH

File this one under: FIRST AMENDMENT

Tomorrow: What happens when the principal fails to acknowledge a student’s perfect attendance during the graduation ceremony? Yikes!

Lincoln Brown was a 6^th grade teacher in Chicago. One day during class, Mr. Brown intercepted a note the kids were passing around. The note included lyrics from some rap songs that included racist and violent words.  Among other things, the lyrics referenced what we, in polite company, call “the N-word.”  Mr. Brown decided to use this as a teachable moment, explaining to his classroom of mostly African-American children why the N-word was considered offensive.

In the back of the room sat the principal, doing a classroom observation.  Was he proud of his teacher for taking advantage of this situation to teach an important life lesson?  No.  In fact, he recommended a five-day unpaid suspension for uttering the N-word in the classroom.  District policy prohibited the use of any sort of racial slur in the school, but you would think that context would be taken into account.

The Chicago school board upheld the man’s suspension and the man sued, alleging that this was a violation of his First Amendment rights of free speech. He lost.  When in the classroom, teachers’ rights of free speech are about the size of a pinhead.  He might have had better luck if he had alleged that the principal and the Chicago school board had engaged in rank stupidity.  But that’s not a theory that the lawyers would call “actionable.”  In fact, the opinion of the 7^th Circuit, affirming the man’s suspension, begins with this:

Justice Scalia once said that he wished all federal judges were given a stamp that read “stupid but constitutional.”

I was watching the Ken Burns documentary about Jackie Robinson recently.  You should watch it.  Spoiler alert: it includes the N-word!  It’s kind of hard to tell that piece of American history without the N-word.  I thought I knew the Jackie Robinson story pretty well, but the Burns documentary shocked me with its description of the overt, unashamed racism of a time not so long ago.  So it saddens me to see a teacher getting punished for trying to teach young kids about some of that history and why they should be a bit more thoughtful in their use of language.  I wonder if that Chicago principal would allow the kids in the school to watch this documentary.

I’ve been practicing school law long enough to know that there is always more to the story than appears in the court’s opinion.  Maybe Mr. Brown was a bad teacher.  Maybe he wasn’t as good a role model as he portrays himself.  But on the face of it, this case looks like a boneheaded decision by a narrow minded principal upheld by a school board that ought to know better and a court that labeled the decision stupid….but legal.

The case is Brown v. Chicago Board of Education, decided by the 7^th Circuit Court of  Appeals on June 2, 2016.  Here’s a piece of trivia for you: the opinion is written by Judge Diane Wood, the only federal judge that the Dawg once asked out on date.  For the record, the Dawg’s motion was denied.

DAWG BONE: SIGH. 

File this one under: FIRST AMENDMENT

TOMORROW: THROWBACK THURSDAY LOOKS AT STUDENT DUE PROCESS!

Context is important. You may recall that the mass shooting at Sandy Hook Elementary school in Newtown, Connecticut occurred on a Friday.  Here’s what happened in Egg Harbor, New Jersey the next Monday:

Three days after Sandy Hook, one of K.J. Jr.’s teachers saw a drawing in K.J.’s sketchbook that concerned her. When school officials reviewed K.J.’s other drawings they found a drawing of what appeared to be a weapon, which prompted them to detain K.J. and call the police. The police searched K.J.’s home and found parts that might have been used to make the weapon depicted in the drawing. Shortly thereafter, K.J. was arrested and placed in a juvenile detention facility, where he remained for over two weeks. Upon his release, he was placed under house arrest and forced to wear an ankle monitor until, several months later, the judge presiding over his trial dismissed one of the charges entirely and found K.J. not guilty on the remaining counts.

This sequence of events prompted a 103-page lawsuit alleging 25 causes of action against the district and 17 individual defendants. The plaintiff alleged that K.J. lost at least 14 months of education and was subjected to multiple constitutional and state law violations.  Among other things, the suit alleges what while in juvie the boy was strip searched and “cavity searched.”  That does not refer to dental work.

You have to wonder: would any of that have happened if the school was not on heightened alert due to Sandy Hook? We will never know.  But of course the court applies legal principles to the situation regardless of context.  As it turned out, the court tossed out most of the 25 causes of action.  Of particular interest to us in Texas is how the court addressed the constitutional issues.

The court dismissed the claims that were based on an allegedly illegal search of the student’s sketchpad. The court cited the New Jersey v. T.L.O. case for the proposition that school officials only need a “reasonable suspicion” of wrongdoing to justify a search.  The teacher saw a drawing that concerned her. Thus there was an “individualized suspicion” that was reasonable. Moreover, the court made note of the important fact that the vice principal conducted a minimally intrusive search.  He looked at the sketchpad—not at any of the student’s personal belongings.

However, the court held that the suit alleged facts that could support a legitimate 1^st Amendment claim against the superintendent, the principal and the vice principal.  The student’s drawings were a form of “expression” protected by the 1^st Amendment. The student was suspended because of the content of his drawings.  To justify this infringement on 1^st Amendment rights, the school has to convince the court that it could reasonably foresee a material disruption of school.  At this stage of the game, the court was not convinced.  The fact that this happened three days after the worst school shooting incident in U.S. history did not alter that analysis.

DAWG BONE: STUDENTS HAVE CONSTITUTIONAL RIGHTS, EVEN THREE DAYS AFTER SANDY HOOK.