Tag Archives: First Amendment

Slants, Redskins, Your School’s Mascot and the Constitution

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.


File this one under: FIRST AMENDMENT

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

Can celebrating Cinco de Mayo lead to litigation? It did in California!

It was Cinco de Mayo Day at the Live Oak High School in the Morgan Hill USD in California.  Celebrations of Hispanic heritage were planned.

Mid-morning that fateful day, a student advised Assistant Principal Rodriguez that “You may want to go out to the quad area. There might be some issues.”  Another student told Mr. Rodriguez that she was concerned about a group of students who were wearing the American flag. The student told Mr. Rodriguez that “there might be problems.”  On orders from his principal Mr. Rodriguez told the kids who were wearing the U.S. flags that they would have to either turn their shirts inside out, or go home for the day.  Mr. Rodriguez  promised the students that if they went home, it would be treated as an excused absence.  Mr. Rodriguez explained to the students that he was concerned for their safety on this particular day.

The principal, Mr. Boden, later testified that he had good reason to be worried about safety.  During his six years as principal he had personally witnessed at least 30 fights on campus.  Some of these involved gangs. Some were between Anglo and Hispanic students.  There was a police officer on campus every day.

On top of that, there had been tension on Cinco de Mayo the year before. A group of Hispanic students walked around school that day with the Mexican flag.  One of them was shouting direct threats of violence against “them white boys.”  The “white boys” responded by installing a “makeshift American flag” on one of the trees on campus and chanting “USA! USA!”   This tension still simmered a year later.

In short, Principal Boden had good reason to be concerned about safety.  But were his concerns sufficient to justify the restriction of free speech?  Don’t American citizens have the right to say what they want, even if some people may be offended?

Of course they do. But in a school setting, administrators can suppress student speech if they can “reasonably forecast” that substantial disruption is about to occur.   The federal court in California ruled in favor of the school in this case, and the 9th Circuit affirmed that ruling on February 27, 2014. The court held that there was “evidence of nascent and escalating violence at Live Oak” that day.  All things considered, school officials acted reasonably

I listened to the recording of the oral argument of this case. The lawyer representing the Anglo kids sounds like he is from New Jersey, and he is clearly not familiar with the Hispanic heritage of the Southwest. He repeatedly referred to “Cinco de May-o” pronouncing it as if it were a sandwich spread. Even after one of the judges corrected him, (“Counsel….we pronounce it ‘my-o’”) he soon reverted to his erroneous ways.  I don’t think this guy could tell a burrito from a quesadilla.

I would have ruled against him just based on that.  The 9th Circuit judges were more….judicious, but they did rule against him.  The case is Dariano v. Morgan Hill USD, 767 F.3d 764 (9th Cir. 2014).

Here’s hoping you have a festive, non-violent and non-litigious celebration of Cinco de Mayo!


 File this one under: FIRST AMENDMENT, STUDENTS

Enjoy the weekend! The Daily Dawg returns on Monday.

Board Presidents—take note!!

The 5th 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 5th 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 5th 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 5th Circuit and will certainly be cited in future cases.  The case is Heaney v. Roberts, decided by the 5th Circuit on January 23, 2017.  We found it at 846 F.3d 795.


 File this one under: FIRST AMENDMENT

Tomorrow: Bond money for band uniforms?

Employee in trouble, rallies support from co-workers. Is this “free speech”?

Yesterday we told you about disability discrimination claims arising from the termination of a counselor in Lockhart ISD.  The same counselor also alleged that the firing was an act of retaliation for her exercise of First Amendment rights to free speech.  Of course school employees have First Amendment protection, but only when they are speaking as a “citizen” on “matters of public concern.”  If they are expressing themselves solely about their own employment situation, they do not have that constitutional protection.

In this case, the counselor cited three communications that she thought would qualify as “free speech.” The first was a letter to some of her colleagues. The letter stated that she was having “tremendous difficulties” working with the principal and was scheduled to have a meeting with the assistant superintendent.  The context for this was that the counselor had already been reprimanded and given various directives by the principal. She was likely apprehensive about the meeting with the assistant superintendent. The letter asked her colleagues to provide good evaluations for her if asked.

Sure enough, in the subsequent meeting the assistant superintendent advised the counselor that he would recommend her termination.  This led to communication number two—an email to her colleagues about the upcoming board meeting at which her termination would be discussed.  She outlined allegations of “unspeakable acts” committed against her, and sought the support of her co-workers.

The third communication was not from the counselor, but rather, a letter from some of the faculty members who urged the board not to terminate the counselor’s employment.

Free speech? Is this speaking as a “citizen” on “matters of public concern”? Of course these communications implicitly expressed the view that Bluebonnet Elementary School was not well managed.  Is this not a matter of general public concern to all citizens? That was the argument, but the court did not buy it. Looking at “the content, form, and context” of the communications, the court concluded that this was primarily aimed at the counselor’s personal employment dispute.  Key Quote: “the Court does not agree with Plaintiff that it is enough that her communications impliedly concerned ‘[the principal’s] ability to effectively run Bluebonnet Elementary.”

That took care of the First Amendment issue. The court granted a summary judgment in favor of the district. The case of Eubank v. Lockhart ISD was decided by the federal court for the Western District of Texas on January 17, 2017.



Tomorrow: There is NO ESCAPING special education!

Dear Dawg: Take a look at my No More Cursing Out the Teacher Act, soon to be introduced to the Texas legislature.

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 4th 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.


File this one under: FIRST AMENDMENT

We wrap up the month of June with another Throwback Thursday! Today the topic is employee free speech.

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.


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!

“Stupid but constitutional.”

Lincoln Brown was a 6th 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 7th 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 7th 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.


File this one under: FIRST AMENDMENT


What’s happened with the T-Bizzle case–the student rapper from Mississippi?

Maybe it was appropriate that we got the word on Leap Day that the Supreme Court would not hear the case of Bell v. Itawamba County School Board. This is the case involving the wannabe rapper, Taylor Bell, who goes by T-Bizzle in the rapper community.  By deciding not to hear the case, SCOTUS leaves intact the en banc decision of the 5th Circuit. That decision upheld the disciplinary action the school took after Mr. Bell recorded a rap alleging that two coaches had engaged in sexual misconduct with some female students.

To say that the rap was vulgar and nasty would be an understatement, but it wasn't the nastiness that turned this case in favor of the district. The court concluded that the rap violated the school code of conduct by "threatening, harassing and intimidating" school employees.  The rap included defamatory accusations along with suggestions of violence. Importantly, the court held that even though it was created and recorded off campus, it was intended to reach the school community. That was pretty obvious, since Mr. Bell put it on Facebook, where he had almost 1,400 friends, and then YouTube.  Since it was intended to reach the school community, and violated the standards laid out in the code of conduct, the school had the authority to take disciplinary action.

The 5th Circuit decision is a major pronouncement regarding free speech rights of students in public schools.  This is especially true for us in. Texas, since a 5th Circuit decision is binding on our courts.  The case is particularly important because it recognizes that the Internet and social media are game changers in the legal analysis. The geographic boundary of "school property" becomes less important with this decision.

No doubt we will be talking about this one on my annual Back to School tour this fall.  As a school attorney, I'm pleased with this outcome. But I'm a little disappointed that we won't get a Supreme Court decision about this very interesting case.  The oral argument would have been a “bring your popcorn” event.


What really prompted the lawsuit: the “search” of the kid’s sketchpad? Or the “cavity” search by the cops?

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 1st Amendment claim against the superintendent, the principal and the vice principal.  The student’s drawings were a form of “expression” protected by the 1st Amendment. The student was suspended because of the content of his drawings.  To justify this infringement on 1st 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.



You won’t be surprised to hear that this is about an English teacher, a woman with a good vocabulary and a colorful writing style.  At first, her blog was a private affair, read by less than a dozen people. But you know how these things work.  It was not password protected, and so….people discovered it. The media discovered it.  The superintendent got a call that probably caught him off guard: Have you read some of the comments Ms. Munroe has made about her students?

The blog was entitled “Where Are We Going and Why Are We In This Handbasket?”  The blog post that drew the most attention featured a depiction of a school bus with a “Short Bus” sign and the following heading: “I DON’T CARE IF YOU LICK THE WINDOWS, TAKE THE SPECIAL BUS OR OCCASIONALLY PEE ON YOURSELF….YOU HANG IN THERE, SUNSHINE; YOU’RE FRIGGIN SPECIAL.”

The blog then included a number of comments Ms. Munroe would like to have included on student report cards. Things like this:

A complete and utter jerk in all ways.

Gimme an A.I.R.H.E.A.D.  What’s that spell?  Your kid!

Just as bad as his sibling. Don’t you know how to raise kids?

Dresses like a street walker.

Whiny, simpering grade-grubber with an unrealistically high perception of own ability level.

Rude, belligerent, argumentative fuck.

Liar and cheater.

Utterly loathsome in all imaginable ways.

There’s no other way to say this.  I hate your kid.

It took the school district more than a year to do it, but they terminated this teacher.  The district asserted in court that her blog posts had nothing to do with it.  That’s hard to believe, seeing as how the district also asserted that the blog posts caused a major disruption of school operations, with students “livid” and large numbers of parents opting their kids out of Ms. Munroe’s classes.

In the end, it didn’t matter. The court held that the blog posts were not constitutionally protected speech.  Therefore, even if the district did fire her because of her comments, the district was on safe ground legally.  The court emphasized the importance of the teacher/student/parent relationship. There must be trust, based on mutual respect. Thus the court concluded that the district legitimately concluded that Ms. Munroe had fractured that relationship of trust.  Key Quotes:

We find that Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.

Referring to the “…YOU HANG IN THERE, SUNSHINE” remark, the court said:

Even if intended as a comedic exercise, such characterizations speak for themselves. Simply put, they were despicable.

In these days of social media, this is an important decision, confirming the notion that teachers must exercise their free speech rights with thoughtfulness. At a minimum, teachers cannot use their First Amendment rights in ways that destroy the relationship of trust with students and parents.

The case is Munroe v. Central Bucks School District, decided by the 3rd Circuit Court of Appeals on September 4, 2015.  You can find the case at 2015 WL 5167011.