Monica Pompeo enrolled in a graduate level course at the University of New Mexico which promised to be controversial.  The course, “Images of (Wo)men: From Icons to Iconoclasts” carried a sort of “parental advisory.” The course materials would include sexually explicit material. Students should expect controversial, even “incendiary” class discussions.  Students were warned to “participate with respect” and to “respect and care for everybody’s marvelously complex subjectivities.”

Ms. Pompeo, a student in the class, did not think much of the film “Desert Hearts,” which was included in the class curriculum.  Here are some quotes from Ms. Pompeo’s paper, which she was assigned to write in response to the movie:

For those uninterested in lesbian romance, the film is likely intolerable to watch in its entirety because there is virtually no other theme in the film; providing no reason for anyone other than lesbians who are unable to discern bad film from good film to endure “Desert Hearts.”

…their general appearance [referring to the women in the film] conjures the cliché, “you can put lipstick on a pig, but it’s still a pig.”

One character is described as:

still sexually vibrant, in spite of her perverse attraction to the same sex.

Regarding a bath scene involving two women:

[The] only signs of potency in the form of the male cock exist in the emasculated body [of one character’s fiancé]; [the bath water] essentially drowning out any chance of life considering their fatal attraction to one another.

The film as a whole:

Can be viewed as entirely perverse in its desire and attempt to reverse the natural roles of man and woman in addition to championing the barren wombs of these women.

The prof asked Ms. Pompeo to meet with her regarding this paper.  Several discussions ensued with both the prof, the head of the department, and other UNM officials. Clearly, the prof took exception to some of the student’s comments and her language.  The paper was never graded, and despite being given the opportunity to re-write it, she never did. The student finally withdrew from the class, protesting that she was effectively forced out due to her viewpoint about same sex relationships.  The university refunded her tuition for the class.

But that did not stop Ms. Pompeo from suing the university, her professor and the head of the department, accusing them of unconstitutional viewpoint discrimination. The case ended up in the 10^th Circuit, which issued a decision many readers will find surprising.

The court held that even if this academic flap is considered “viewpoint discrimination” it was all perfectly legal.  That’s because this was “school-sponsored speech” rather than the student speaking on her own.  The court relied on the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988). That case involved a high school student newspaper. SCOTUS held that the content of the school newspaper was actually the speech of the school—not the students’. Therefore, the school could control it, restrict it, censor it, as long as it had a “legitimate pedagogical reason” for doing so.

This case extends that logic 1) to higher education; and 2) to a student paper written in response to an assignment. Thus even though Ms. Pompeo’s paper was clearly an expression of her own views on the film, the court treated it as “school sponsored speech” thus giving the professor the authority to insist that the word “barren” was out of line.

The court held that viewpoint discrimination would not be permissible if it was a pretext for some darker motive, such as religious discrimination.  The court thus distinguished an earlier case (Axson-Flynn v. Johnson, 356 F.3d 1277 (10^th Cir. 2004).  In that case, University of Utah officials told a Mormon student who refused to utter curse words in acting assignments that she could “choose to continue in the program if you modify your values. If you don’t, you can leave.”  The court thought there was enough evidence of anti-Mormon bias in the record that it might be a “pretext” case.

But not so for Ms. Pompeo.  There was no evidence of this conflict being about religion, gender, race, or any other protected category.  It seems pretty clear that the student and her prof had very different views about same-sex relationships, but the university officials claimed that they were merely objecting to language in the paper that was “inflammatory and divisive.”  The court noted that “legitimate pedagogical concerns” is a term broad enough to allow educators to promote “discipline, courtesy and respect for authority.”  Key Quote: “Teaching students to avoid inflammatory language when writing for an academic audience qualifies as a legitimate pedagogical goal.”

The case of Pompeo v. Board of Regents of the University of New Mexico was decided by the 10^th Circuit Court of Appeals on March 28, 2017.  You can find it at 852 F.3d 973 or 2017 WL 1149501.

 DAWG BONE: “LEGITIMATE PEDAGOGICAL CONCERNS” IS A FLEXIBLE TERM

File this one under: FREE SPEECH

See you next week!

Did you know that in the Netherlands the Christmas tradition involves Sinterklaas (Santa Claus) accompanied not by elves but by “six to eight black men”? No? Me neither. At least not until I read Melnyk v. Teaneck Board of Education. Let me ‘splain.

This brouhaha started when a high school teacher of Literature and Creative Writing assigned her students to read an essay by David Sedaris entitled “Six to Eight Black Men.” This happened on December 6, 2013—St. Nicholas’ Day. The teacher, a woman of Dutch descent, probably enjoyed teaching the students about the customs in her family’s ancestral home. Those customs include people dressing up as Zwarte Piet, the traditional name for the “six to eight black men” who helped out Sinterklaas with the delivery of presents.

If you do a little Google research on Zwarte Piet you will quickly discover that ZP has become a lightning rod for controversy over racism vs. political correctness in the Netherlands. White people who dress up as black people may find it amusing to do so, but the evidence is pretty clear that many people, of all colors, find such customs to be offensive, insensitive and a cruel reminder of parts of our past we are not proud of. So there have been protests and lawsuits in the Netherlands over this and the custom seems to be evolving toward a more inclusive kind of ZP.

But back to our story. According to the court, Ms. Melnyk told her students that people in the Netherlands still dress up as ZP. Then she pulled out her cell phone to show the kids a picture of her relatives who still live in the old country: white folks in black face.

It did not go over well with at least one student, who promptly told the teacher that she found the picture to be racist and offensive. One can imagine the teacher’s defensive reaction to that—after all, these were not anonymous Dutch people on her cell phone. This was family. Thus she defended the practice as simply an illustration of cultural differences. The student still said the picture was offensive, and the teacher broadened the dispute by pointing out that “the Dutch had abolished slavery long before the United States.”

The student reported the incident to another teacher. From there, it went to an assistant principal, the superintendent, and then the district’s anti-bullying specialist, who conducted a formal investigation. That investigator concluded that Ms. Melnyk had violated the district’s HIB policy (Harassment, Intimidation and Bullying) by displaying a picture that was “reasonably perceived as motivated by race or color” and “created a hostile environment for [the student].” The administration issued a formal reprimand to the teacher.

Ms. Melnyk filed a grievance over this and won. Pursuant to the district’s collective bargaining agreement the matter ended up in front of an arbitrator who ordered the district to remove the reprimand from the personnel file. A New Jersey court affirmed that decision.

You would think that would be the end of our story but it’s not. Ms. Melnyk then filed suit, naming the district, the superintendent, the A.P. and the anti-bullying specialist. In the suit, she alleged that the district’s HIB Policy was an unconstitutional infringement of her rights to free speech.

She lost. The court held that the HIB Policy was carefully crafted so as not to infringe on the right of free speech. As to this particular incident, the court held that Ms. Melnyk’s decision to display that photo on her cell phone was not protected speech, mostly because it happened in the classroom. Key Quote:

Taking form and content into consideration, courts have found that in-classroom speech made by an educator pursuant as part of a curriculum is not speech on a matter of public concern.

Lawyers for the teacher cited cases involving university professors, where academic freedom is more robust, but the court held that those cases were not relevant. The court pointed out four key distinctions between public schools and higher education:

1. K-12 schools are involved in inculcating societal values; universities encourage broader explorations;
2. K-12 teachers and administrators act “in loco parentis”;
3. K-12 schools “face special needs of school discipline; and
4. K-12 schools must consider the maturity level of the students.

So there you have it. An interesting read for a Friday. The case of Melnyk v. Teaneck Board of Education was decided by the U.S. District Court for New Jersey on November 22, 2016.

DAWG BONE: TEACHERS DON’T HAVE MUCH “ACADEMIC FREEDOM” WHEN ON THE JOB AND IN THE CLASSROOM.

File this one under: FREE SPEECH

Dear Dawg: It will not surprise you to hear that our so-called football team is now 0-8.   Last week was a montage of dropped passes, missed tackles, stupid penalties and ridiculous coaching decisions.  I’ve written to you every week about this and you keep telling me that we should not fire the coach over this.

But what about the band director?  The halftime show featured songs about losing.  We heard the Beatles’ “I’m a Loser.” That was followed by Roy Orbison’s “Crying.”  Then it was “Poor Poor Pitiful Me.”  They concluded the show by forming an L and marching off the field playing our school fight song at half-tempo, like a dirge.

The band director claims that this had nothing to do with our football team, but that’s not how the folks in the stands saw it. Some of thought it was amusing, but others were irate at the lack of support for our players.   Everybody got the connection with our losing football team.

Can we direct the band director to be more supportive?  I’m no musician, but I know what I like.  Our team is atrocious this year but I blame that on the coach. The kids are trying hard and deserve our support.  MIFFED.

DEAR MIFFED:  We’re happy to AT LAST be able to give you the advice that you want. YES—you can tell the band director to change his tune.  The Supreme Court decided long ago that the school retains a great deal of editorial control over school sponsored publications. The case before the Court involved a student newspaper, but the logic of that decision extends to anything that appears to carry the school’s approval. This would certainly include the halftime performance of the band.

Tell the band director to do the right thing and support your losing football team.

DAWG BONE: SCHOOL SPONSORED PUBLICATIONS CAN BE EDITED BASED ON ANY LEGITIMATE PEDAGOGICAL CONCERNS. 

File this one under: FREE SPEECH

As of August 22, 2016, the Thomas More Law Center has still not updated its website story about the “Mexican Flag Pledge Case.”  How long will it take for this non-profit advocacy group to correct its errors?

The headline on their website reads: IN ONE TEXAS SCHOOL, STUDENTS HAVE THE RIGHT TO OPT OUT OF RECITING THE AMERICAN PLEDGE OF ALLEGIANCE….BUT NOT THE MEXICAN PLEDGE.

Now that’s a story sure to get the attention Fox News and demagogues like Glenn Beck. And it did.  But the story is nowhere close to the truth.

The story claims that Brenda Brinsdon, then a sophomore at a McAllen ISD high school, was punished for refusing to recite the Mexican Pledge of Allegiance.

Wrong.  According to the 5^th Circuit, the student was not required to fulfill this class assignment. After she objected to this assignment in her Spanish class, she was given an alternative assignment.  Nor was she punished for the stance she took.

It is true that she was removed from the Spanish class and completed the class in an administrative office.  This happened over a month after her refusal to carry out the assigned task and the court found that “there is no evidence to support the claim” that she was removed because of her refusal.  She got credit for Spanish III and later graduated.

So, why was she removed from class?  She and her father spoke to Fox News and got their story broadcast on The Blaze, Beck’s TV show. This caused a commotion.  Here’s how the 5^th Circuit put it:

The record shows McAllen High received hundreds of communications from anonymous people, some of which contained threats of harm.  Indeed, Cavazos [the principal] testified that after Brinsdon’s “Fox channel videotaping, I explained to her that…the situation had created a hostile environment for the school and for the teacher…and the teacher and myself were receiving hate mails and calls and feared for our safety…[and] that the student[s] she videotaped felt betrayed…..”

“The students she videotaped”????  That’s another little detail that the Thomas More Law Center omitted from its story.  Brenda secretly recorded classroom activities, including individual students, and then shared it with Beck, who broadcast it on his show.

Of course students have free speech rights, and that includes the right to speak to the media. But schools can take appropriate action to prevent or respond to a reasonable forecast of disruption.  Did this situation cause disruption?  The 5^th Circuit:

The student speech was published to the national audience that Fox News and The Blaze [Glenn Beck TV Show] command.  Santos [Spanish teacher] was identified by name and her face was shown in the video. Even if the resulting disruptions were in fact insubstantial, a “fact” we do not find, Brinsdon’s publication of her complaints to a national audience were demonstrable factors leading to the school’s reasonable forecast of sufficient disruption.  Indeed, the threats eventually caused police to maintain a patrol of the school.  Santos was escorted to and from her car every day. She was forced to take time off from work.

We hope you noticed in the above recounting of the case that all of this happened in Spanish class.  It was a one-time assignment—memorize and recite the Mexican Pledge in Spanish.  The kids also sang the Mexican National Anthem—in Spanish.  They did this one time—not every day.  In fact, as far as a daily practice, all students in the school were required to recite the Pledge to the American Flag, and to the Texas Flag—but not the Mexican Flag.

The lawsuit makes much of the fact that students could opt out of the Pledge to the American Flag.  They could object, and if they did, they would be excused from the requirement. This is based on what the lawyers call “clearly established” law—specifically a U.S. Supreme Court case from 1943—West Virginia State Board of Education v. Barnette.  So the suit argues that kids should not be required to recite the pledge to the Mexican Flag.

This is a simplistic argument that ignores context.  Glenn Beck would find it compelling.  The 5^th Circuit did not.  The Court put it this way:

Clearly, West Virginia sought to have students each day make an operative pledge of allegiance, that is, a statement of actual belief.  (Emphasis in the original).

As for the pledge in Ms. Santos’s class:

There is, though, no evidence in this case of a purpose to foster Mexican nationalism. Instead, the only evidence is that students were, as part of a cultural and educational exercise, to recite a pledge of loyalty to a foreign flag and country.  Santos testified and the class syllabus states that the pledge was educational and the punishment for noncompliance was a failing grade. Finally, the assignment was a singular event; it was not repeated on a daily basis. In summary, the compelled speech at issue is a pledge that did not seek to compel the speaker’s affirmative belief.

The court concluded that neither the district nor the principal nor the teacher should be held liable for any legal violation here.  Good.  But what a shame that a teacher has to endure the stress and expense of a lawsuit for giving her students an assignment that was completely consistent with the Texas Essential Knowledge and Skills for languages other than English—learning about the culture and practices of people from another country.

The case is Brinsdon v. McAllen ISD, decided by the 5^th Circuit on August 9, 2016.

DAWG BONE: DON’T TRUST GLENN BECK’S LEGAL ANALYSIS.

File this one under: FREE SPEECH

For the summer, we’re going to designate Thursdays as Throwback days, when we take a look at some of the seminal legal developments that are still important.  Let’s call these cases GOLDEN OLDIES!

The Golden Oldie in the area of student free speech is Tinker v. Des Moines School District, decided by the U.S. Supreme Court in 1969. Schools have not been the same since that fateful day when Mary Beth Tinker walked into her 8^th grade classroom wearing a black armband in support of a Christmas truce in Vietnam.  The principal had gotten wind of this ahead of time and had specifically prohibited any such war protest in the school building.  So young Ms. Tinker was in direct defiance of the principal when she wore that armband to school.  What’s a principal to do?  He was already on record—he had to follow through with a suspension.

Little did he know that his decision would be the subject of a Supreme Court decision that we would still be talking about almost 50 years later.  The Supreme Court overturned Mary Beth’s suspension. The Court held that the student was engaging in symbolic speech that was protected under the First Amendment. The quote that has rung down through the decades is that “students do not shed their constitutional rights when they enter the schoolhouse gate.”

Of course this is not an unlimited right.  School officials retain the power to discipline students for expression if they “reasonably forecast” that the expression will cause a “material and substantial disruption” of school, or to interfere with the rights of others.

So what’s the latest on this? YouTube! Facebook!! Twitter!!!  The early cases were about armbands, political stickers, underground newspapers and other such things.  Now, of course, student expression is digital, and the courts have struggled to enunciate clear guidelines for the regulation of cyber speech that originates off campus but is incorporated into every cell phone and device in the student’s backpack.  The most recent decision that is relevant to Texas educators is Bell v. Itawamba County Schools. In this case the full 5^th Circuit upheld disciplinary action against a student in Mississippi who wrote, recorded and disseminated a nasty rap accusing two coaches of sexual misconduct with students.  This case recognizes social media as a game changer, making the physical boundaries of the school less relevant than they were in simpler times.

How should principals and assistant principals proceed? Cautiously.  Remember that Tinker is the law of the land, and so when students express themselves verbally, symbolically, in writing or in cyberspace, the starting point is that the expression is probably protected under the First Amendment.  There are a number of exceptions to that general rule, but it is still the starting point for analysis.

DAWG BONE: THE GOLDEN OLDIE FOR STUDENT FREE SPEECH: TINKER v. DES MOINES

File this one under: FREE SPEECH

It is ironic that the Supreme Court’s decision about the display of the Confederate Battle Flag on Texas license plates came out when it did. The decision was issued on June 18^th.   The night before that, a young man who revered the Confederacy, attempted to “start a race war,” by murdering nine African-Americans who had gathered in their church to study the Bible.   A nationwide flap ensued about the “stars and bars” flag and other symbols of the Confederacy, including the statue of Jefferson Davis which is prominent on the University of Texas campus.

The Supreme Court’s decision does not deal with the symbolism of the flag at all.  The Court did not address the emotionally charged issues the flag provokes.  The issue was whether the display of this emblem on a state-issued license plate was an expression of the views of the owner of the car, or of the government.  It’s a tricky question. The state issues the license plate and provides for much of the content of it. But Texas, like many other states, allows people to purchase a “specialty plate” that displays a message of their own choosing.

The Sons of Confederate Veterans (SCV) designed a specialty plate that promoted their organization and featured the Confederate Battle Flag.  They sought approval of the specialty plate, and were denied.  The Texas Department of Motor Vehicles noted that “a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

The SCV sued, and took the matter to the U.S. Supreme Court. The argument was pretty simple:  this is my license plate, on my car, and I ought to be able to say what I want.  You don’t have to be a constitutional scholar to know that free speech is protected by the First Amendment. And free speech frequently involves saying things that others may find demeaning, offensive, or even hateful.  There was also a “viewpoint discrimination” argument. After all, Texas approved plate designs involving other flags and symbols, some of which are offensive to some groups. For example, a plate design honoring “Buffalo soldiers” was offensive to some Native Americans.  Despite that, the DMV approved their specialty plate.

There is no question that the SCV would have prevailed in this case if the Court had determined that the message on the license plate was the personal expression of the person who purchased the specialty plate.  After all, people can put a Confederate flag bumper sticker on their car and can fly the flag on their private property.  So why not on a license plate that I buy with my money to put on my car?

By a 5-4 margin, the Supremes determined that the license plate was the expression of the government, not the individual.  The Court held that the government is not limited by the Free Speech Clause of the First Amendment. It can freely choose what it wants to say, what it wants to promote and what it wants to discourage.  As the majority opinion notes, “Were the Free Speech Clause interpreted otherwise, government would not work.”  Cities could not promote recycling.  Schools could not promote vaccination.

This does not mean that governments are as free in their expression as private individuals are.  The Court notes that “Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.”  For example, governments cannot promote religion because of the Establishment Clause.  Texas schools cannot use public funds to advocate for passage of a bond issue because of state law restrictions.   Nevertheless, this decision strongly supports the notion that a governmental unit, such as a school district, can promote certain causes without violating the First Amendment.  It would seem logical that school districts could promote such things as regular attendance, reading books to children, volunteering in the school and other good causes relating to the primary mission of the school.

As usual with Supreme Court cases, the dissenting opinion is more interesting.  Justice Alito had a bit of fun pointing out that one Texas specialty plate actually promotes the Oklahoma Sooners!  He wonders if a person seeing the OU logo on a Texas plate might think “that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?”

The case is important and worth your lawyer’s attention.  It’s called Walker v. Texas Division, Sons of Confederate Veterans, decided by the U.S. Supreme Court on June 18, 2015.  It was the four liberals (Breyer, Ginsburg, Kagan, Sotomayor) teaming up with Justice Thomas to form the majority.

DAWG BONE: PUTTING THAT OU LOGO ON A TEXAS LICENSE PLATE MAY BE LEGAL.   BUT IT’S WRONG.