Religious speech in school: religion or speech?

Thou shalt not preach.

My previous post discusses the tension between the Establishment Clause and the Free-Exercise Clause in the First Amendment.  In the school context, much of the tension centers on what public school educators can or cannot do.  But a couple of recent cases involving religious speech demonstrate that the tension exists for students as well.

Unlike with teachers, who are state employees, student religious speech normally does not trigger the Establishment Clause concern that the state is endorsing an official religion.  Nonetheless, in recent years, controversies and lawsuits have sprung up around the country concerning whether schools may prevent students from reciting prayers, singing religious hymns, or offering other expressions of religion at school-sponsored events.  In nearly all of these cases, courts have upheld the powers of the schools to regulate student conduct. 

Some of the cases seem almost comically petty.  A Wisconsin student who planned to sing a hymn at graduation was told, for example, that she would have to use “he,” “him,” or “his,” instead of “God” in the lyrics.  A New Jersey school district banned religious music entirely at the school holiday concert, a decision challenged by parents but upheld by the 3rd circuit.

A pair of cases about graduation speeches have received a lot of media attention, and both were recently denied cert by the Supreme Court.  In McComb v. Crehan, a Las Vegas high school valedictorian sought to use her valedictory speech to discuss how her christian faith helped her to succeed in school.  The school nixed portions of her draft speech as “proselytizing.”  Brittany McComb decided to deliver the speech anyway, and the school turned off her microphone at graduation.  McComb then brought suit against the school district, alleging a violation of her First Amendment rights.

A district court in Nevada denied the school’s motion to dismiss the case based on the pleadings, essentially ruling that McComb could go forward on her suit.  But the 9th Circuit reversed and upheld the school’s actions.

In a similar case, Colorado valedictorian Erica Corder also veered from her prepared text into proselytization of her Christian faith.  She actually succeeded in delivering the entire speech.  But the school principal refused to grant her diploma until she wrote a letter acknowledging that the speech was her personal view.  Corder’s suit against the school district, therefore, dealt not only with unlawfully censored speech but also unlawfully compelled speech.  The suit has been similarly dismissed by the 10th Circuit.

Although the two circuit courts reached the same results, they rested their reasoning on different grounds: one primarily on religion, and the other primarily on speech.  This highlights a problem with student religious speech in school — should it be analyzed under the Establishment Clause rubric, or the Free Speech Clause?

In the 9th Circuit, the issue was analyzed as one of religion, perhaps in part because there is clear caselaw that students have no right to proselytize in a school-sponsored event.  Neither party disputed that the school officials had the power to control and censor student speech in such a setting.  The main issues were factual: whether the student speech was in fact proselytizing and whether the school official retained primary control over the graduation speech.

The 10th Circuit, however, did not have such clear precedents, and instead rested its ruling on an analysis of prior Supreme Court student free-speech cases.  In doing so, the 10th Circuit ruling nearly completely ignores the “religion” aspect of the case and treats the student’s religious speech as any other types of speech.

Although the 10th Circuit arrives at the same conclusion as the 9th Circuit, such an approach has its risks. Student speech cases typically rely on a kind of in loco parentis authority that the school has to regulate behavior of the students in order to satisfy educational and disciplinary goals.  In its opinion, the 10th Circuit strained to explain what type of “educational” goals the school achieved by censoring religious speech.

The fact of the matter is, a school’s decision to censor religious speech is not the same as its decision to censor sexual, or lewd, or incendiary speech.  It should not rest on a discretionary judgment about the consequences of the speech, but should stem from a legitimate concern that such speech may be seen as endorsed by the school in violation of the Establishment Clause.

Thus, prohibiting this type of speech, at least in a school-sponsored event where schools retain primary control of the content, is not optional and a judgment call, it is constitutionally required.  Religious speech in school is not just speech, it is religion.

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Pushing the limit of “deliberate indifference”

LonelyBoyWhen is a school liable for student-on-student bullying? The standard laid down by the Supreme Court in Davis v. Monroe County Board of Education is whether the school has shown “deliberate indifference.” In Davis, the Court held that a school is liable for damages if it failed to respond to known acts of severe student-on-student harassment, thereby creating an environment that denies the victim equal access to education.

The Supreme Court justified the doctrine of deliberate indifference by referring to the doctrine of in loco parentis, noting that the school has “substantial control over the context in which the harassment occurs,” and that “the nature of the State’s power over schoolchildren is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” As my post on in loco parentis noted, the power of the school to exercise control over its students comes with a duty to ensure safety, health, and an effective learning environment.

The school officials in Davis were obviously “deliberately indifferent” because they totally failed to respond to a female student’s complaint of sexual harassment by another student. But in reality, deference to the judgment and discretion of school officials has meant that in cases where school officials addressed the student complaint, courts are unlikely to question the adequacy of that response and find deliberate indifference.

But recently, a case has pushed the boundaries of what “deliberate indifference” means. [Full disclosure: I worked on the case briefly and tangentially last year.] Like other cases that involve bullying, the case of Patterson v. Hudson Area Schools is a disturbing and sad one. For three years, the plaintiff DP’s life in school was a nightmare. Beginning in 2002, while he was in 6th grade, classmates began taunting him, calling him “faggot” and “queer” and pushing him into lockers. DP reported some of the incidents and began psychiatric counseling, but the taunting escalated in 7th grade. DP’s grades suffered, and he became withdrawn and depressed.

Things briefly improved in 8th grade with the help of a compassionate special-education teacher, but worsened again in 9th grade, after DP began high school and no longer had access to the teacher. The harassment of DP escalated again. In addition to name-calling, students wrote insulting phrases about DP on note cards and showed them during a presentation in class, defaced DP’s planner with sexual phrases and drawings, and vandalized his school locker. Some students also broke into DP’s gym locker, removed his clothes and urinated on them, then threw his shoes into the toilet.

The school punished each of the identified students responsible for the harassment. The individual harassers who were punished never bothered DP again. But some harassers, such as those who defaced DP’s lockers on the two occasions,were never identified. In the meanwhile, the harassment continued, and finally culminated in a sexual assault by a student against DP in May, 2005. DP’s attacker was suspended and ultimately expelled permanently from the school system.

After the attack, DP refused to set foot in his high school again. His school allowed him to receive instruction off the school grounds in another building, and later to attend college courses to satisfy his high school requirements. DP graduated high school early. In 2005, his parents filed suit against the school district.

DP’s parents alleged that the school violated Title IX of the Education Amendments of 1972 by showing “deliberate indifference” to DP’s reported harassment complaints. The question came down to whether the school’s responses were reasonable under the circumstances as a matter of law. The school argued that it had punished each of the identifiable perpetuators who harassed DP, and that the punishment was effective at least as to the individual harassers. The school also pointed to its attempts to help DP by providing him with counseling, one-on-one meetings with the principal, a special-education teacher, and extensive accommodations after his sexual assault.

The district court agreed with the school’s argument and granted summary judgment against DP’s parents. But the Sixth Circuit reversed, finding that the school’s response to the pattern of harassment was not reasonable. The court reasoned that, although the school effectively punished individual perpetuators, the real problem that DP faced was not any isolated incident but a pattern of pervasive and persistent harassment and an environment of hostility. When it became clear that the standard responses were not working to stem the harassment, the school had a duty to do more.

Here, the opinion was treading on thin ice. Unlike in Davis, the Hudson Area Schools officials did not sit idly by while a student was being harassed. They tried to help him, but their efforts failed. There simply isn’t a lot of case law that supported the contention that what the district did here was inadequate or unreasonable. The majority opinion cited an out-of-circuit district court case extensively, a fact that was ridiculed by the dissent. The majority was also silent on the obvious question of what else could the school administrators have done.

Patterson represents the broadest interpretation of “deliberate indifference” that a circuit court has made to date. Last week, the Supreme Court denied certiorari to the case, which means that the Sixth Circuit decision stands, at least for now.

Yet, despite all that is unsatisfying about the case, I believe that Patterson is a positive development. First, the case makes sense doctrinally, even if it goes beyond what “deliberate indifference” has been interpreted to mean in other school cases and in other contexts, such as employment law. The decision tracks the trend of expansion of school powers into many areas of student life, not the least of which are rights involving free speech and search-and-seizure. With the broadening of school authority and the increase in the school’s ability to control its students should come a corresponding broadening of the school’s responsibilities. As I discussed above, the Davis Court itself has linked its justification for the doctrine of deliberate indifference with the control that a school exercises over the school environment. DP loses a lot of rights when he walks into that schoolhouse. In exchange, he should receive a lot more protection.

Second, and more important, this ruling, if it is followed, will encourage school officials to look beyond rote and often ineffective responses to bullying to look for more creative and effective solutions. As DP’s case illustrates, bullying is a devastating phenomenon with complex social and psychological roots. School officials should not be automatically shielded from liability just by resorting to solutions that have been shown to be ineffective. DP deserves educators who are actually not “deliberately indifferent.”

The burden of in loco parentis

Millburn High School, the top-ranked public high school in my home state, gained some notoriety a few days ago when parents complained about a hazing practice.  Apparently, for more than a decade, senior girls at Millburn High School made up a “slut list” that makes sexually explicit remarks about freshman girls of their picking. The list was then photocopied and distributed to the student body.

When the existence of this list came to light, parents were understandably upset.  The New York Times reported that, at the school board meeting last week, a father took the podium and addressed the school board emotionally:

The fact of the matter is, you guys have failed yourselves as board members, you’ve failed us as taxpayers and you’ve failed our kids by not protecting them, which is part of your job.

The rhetoric seemed a bit over-the-top to me at first.  (Are school board members really to blame for those types of infractions?  If a student assaults another on school grounds, do we say that the board members, or school officials, have failed somehow?)

I changed my mind yesterday, however, when I remembered the doctrine of in loco parentis while writing about the new Tufts sex policyIn loco parentis, Latin for “in the place of a parent,” is a doctrine that is often used to explain why primary and secondary schools have the legal authority to make rules and regulations that affect — in most cases curtail — the rights of the minor student.  Just as a parent has the right to allow or prohibit certain conduct in the best interest of the child, so a school has the authority and the discretion to do so in the best interest of the student.

In recent years, in loco parentis has been used largely to justify the power of the school — to search student lockers, to require its athletes to submit to drug tests, to enforce a dress code, or to prohibit certain types of speech or conduct.  At the heart of the doctrine, however, is a doctrine for a duty of care.  The students have been entrusted to the school, the teachers, and the administrators, who must look out for their interest.  The power of the school to regulate student conduct comes from their duty to ensure their safety and sound education.

I suspect that few laymen know of this legal doctrine, but the idea itself is intuitive and probably lies at the heart of many of our attitudes and beliefs about schools.   Which would explain the undertone of a feeling of betrayal and violation of trust that this parent expressed when his child was harmed at school.  Which also explains why all of Millburn’s school administrators have been required to undergo sensitivity training last week.