Fifteen years ago, I gave a speech to the November 2001 national conference of the Education Law Association in Albuquerque, New Mexico entitled “The Coming of the Witches: Schools, Esoteric Religions and the Christian Backlash.”  I did the speech several times over the following years, and it morphed into a article in the July 2005 issue of the Education Law Reporter called “Harry Potter and the Curse of the First Amendment: Esoteric Religion, the Public Schools and the Christian Backlash.”  In that article I discussed what I thought was the growing public emergence of so-called “esoteric religions,” such as Wicca and Satanism, and questioned whether the public school system was ready to deal with such religions.

So 15 years later, was I right?  Did the witches actually come, and did the schools have to deal with them?  Maybe…but take a look at the following video from the July 2016 meeting of the Pensacola, Florida city council meeting:

The Satanic Temple has clearly embarked on a nationwide effort to “match” the efforts of Christian groups to meet at government facilities and speak at government meetings.  Whether this is to promote “Satanism” or to discourage government entities from opening their various forums to other Christian-oriented groups is still open for debate.  But it certainly makes for interesting meetings (from a First Amendment viewpoint, at least!)

So I have decided to revisit and update my 2001-2005 articles and speeches about the Coming of the Witches, to both see whether they really came, and to see how schools and other government entities have responded.  Watch for updates to this project here over the fall.

In honor of Good Friday and Easter, I am posting below my discussion from Chapter 20 of “The Oldest Rule” on the constitutionality of celebrating Good Friday (and Easter) in the public schools (or giving the day off to governmental workers).  To those who celebrate, have a good holiday!

 

from Chapter 20:  The Celebration of Religious Holidays in the Public Schools

The courts in Skoros, Clever and Florey all dealt with the holiday of Christmas, which, while undoubtedly a holiday with a strong religious origin, has also developed into an equally powerful secular holiday.  At the very least, the courts are certainly no stranger to the Christmas debate–as evidenced by the quote beginning this chapter.  A more troublesome holiday is the Good Friday/Easter weekend.^[1]  Many school districts have traditionally given their students Good Friday off, and yet for decades none had been challenged in the courts for doing so.

However, in the mid-1990’s both Illinois and Maryland were sued by teachers over statutes dating from the 1940’s that mandated a statewide public school holiday on Good Friday; the teachers argued that the statutes violated the Establishment Clause by “establishing” the religion of Christianity.  Both Illinois and Maryland advanced many of the same arguments to support the Good Friday holiday, and the courts had before them roughly the same body of Establishment Clause caselaw with which to analyze the issue.  And yet, in Metzl v. Leininger,^[2] the Seventh Circuit declared the Illinois statute unconstitutional, while in Koenick v. Felton,^[3] the Fourth Circuit upheld the constitutionality of the Maryland statute.  What lessons can we learn from these two decisions–other than in April it is better to be a student in Maryland than in Illinois?  For what reasons can a school give its students Good Friday off and survive constitutional challenge?

• to recognize Good Friday as a holiday

The simplest reason to give students Good Friday off would be because Good Friday is, after all, a holiday.  However, it is highly unlikely that any court would accept recognizing Good Friday alone as a constitutionally-acceptable reason for giving students a holiday on Good Friday.  Giving students secular holidays off simply because they are “holidays” is of course permitted.  As discussed above, the courts have generally agreed that Christmas has become secularized to the point that it is a constitutionally-permissible holiday in and of itself — no further justification is necessary.

There is a growing trend among courts in very recent years of recognizing Easter as a secularized holiday.  Easter egg hunts have become an accepted secular ritual, and the Metzl court described a Chicago radio station’s offer in 1995 to allow pet owners to have their pets photographed with the Easter bunny on Easter Sunday for $5.00.^[4]  Comparing Easter to Christmas, Koenick called Easter “a highly secularized holiday.”^[5]

School districts do not need to worry overly much about Easter; Easter always falls on a Sunday, after all.  Regardless of Easter’s status, however, virtually every court to consider Good Friday has noted that it has no secular rituals, and that “it is a day of solemn religious observance, and nothing else, for believing Christians, and no one else.”^[6]  Only one court has ruled otherwise; in considering a statute that gave Hawaiian state officials a holiday on Good Friday, the Ninth Circuit accepted Hawaii’s argument that Good Friday had become seen as the first day of a three-day secular weekend devoted to shopping and recreational activities.^[7]  Even the Ninth Circuit was not unanimous in this view; as Judge Nelson noted in his dissent, “[t]he holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not.”^[8]

The Seventh Circuit rejected the “spring holiday” rationale for a Good Friday holiday in Metzl, noting that “Illinois is not Hawaii.  No one goes water skiing on Lake Michigan in mid-April.”^[9]

Because Good Friday is generally seen as a religious holiday, simply giving students the day off because it is a holiday would probably violate the first prong of the Lemon test: there would be no secular purpose for the holiday.  The Metzl court could find no legislative history to examine to determine the purpose behind the Illinois statute, but the evidence did show a proclamation that had been made by the Governor of Illinois in 1942, when Good Friday was originally recognized as a public school holiday.  The Governor, at least, had been fairly sure why the new holiday had been declared:

NOW THEREFORE , I, DWIGHT H. Green, Governor of the State of Illinois, by this official proclamation, do hereby direct attention to this significant day, Good Friday, which falls this year on April 3, and commend the secret rites and ceremonies of the occasion to the thoughtful consideration of churchgoers and believers throughout our State.^[10]

Having little else to go on, the court was willing to attribute the governor’s statement in part to the legislature.

The Koenick court rejected the plaintiff’s effort to debate whether Good Friday was as secularized as Easter and Christmas, on the grounds that the Maryland statute did not actually mention Good Friday; instead, it gave students the Friday before Easter and the Monday after Easter off.  The court repeatedly emphasized that the Monday following Easter has no religious significance to anyone.  Because Maryland was giving its students two days off (one of which was non-religious), the court found that Maryland had a genuine secular purpose in passing the statute (to provide a four-day spring weekend) as opposed to the evidence that Illinois had passed its law to “commemorate the crucifixion of Jesus Christ.”

• to accommodate the religious practices of Christians

Illinois argued that the Good Friday holiday was necessary to accommodate its large number of Christian students and teachers.  This argument was significantly weakened, however, by another portion of the Illinois holiday statute that allowed any student to miss school for religious reasons without penalty.  This sort of statutory allowance is common in many states, and is arguably required by the Free Exercise Clause.  The Seventh Circuit reasoned that if any student was permitted to take his or her religious holidays off without penalty, mandating that all students (not just Christians) take Good Friday off accorded Christianity special recognition that went far beyond what was reasonably needed to accommodate its adherents.^[11]

Illinois’s accommodation argument regarding its Good Friday holiday was actually more complex than a simple desire to accommodate Christianity.  The state argued that the Good Friday holiday had to be looked at in context of its entire statute dealing with holidays in the school system.  In addition to allowing any individual student to miss school for religious reasons without suffering any penalty, the statute also allowed individual school districts to close their schools if a significant number of their students would be absent for religious reasons.  This, said the state, was accommodation at its finest: for the religion with the most adherents–Christianity–the public schools were closed state-wide.  For the larger minority religions--i.e. Judaism–school districts could choose whether they wished to close their schools.  And for smaller minority religions, individual students could be absent and suffer no consequences.  The evidence before the court showed that this system actually worked in practice, and that several districts north of Chicago did indeed close on the Jewish holidays of Rosh Hashanah and Yom Kippur.^[12]

The district court specifically rejected this argument on the grounds that it violated both the effect and purpose prongs of the Lemon test.  Although it approved of Illinois’ efforts to accommodate religion, in the district court’s view Illinois was doing so in a way that singled out Christianity for special recognition.  In effect, Illinois had created a hierarchy of religions, with Christianity at the top.  Although all students could have their religious holidays off, Christians got theirs automatically, and all others had to ask.  The court felt that the effect of this policy was to unavoidably advance Christianity, and that the policy was therefore unconstitutional.^[13]

• to prevent the waste that would be caused by the excessive absenteeism that would occur should school be held on Good Friday

This was the primary argument advanced by both Illinois and Maryland to justify their Good Friday holidays.  In essence, both states argued that if school was held on Good Friday, large numbers of teachers and students would be absent.  This would require large expenditures for substitute teachers, who would also be scarce due to the holiday.  The teachers who were left would hesitate to teach anything of real substance to the few students remaining, because they would simply have to teach it again to the absent students to allow them to catch up.  In short, the entire day would be a waste of scare resources, and therefore the time, money and effort saved by taking Good Friday off justified the holiday.

Koenick accepted this argument and upheld the Maryland statute.  Metzl acknowledged that such a purpose would be a permissible secular purpose, but rejected the argument as being unsupported by the evidence before the Court.  The problem, as both courts admitted, was that both statutes were over 50 years old, and nobody really knew what attendance would be like if school actually was held on Good Friday.  The real question, then, was who had the burden of proving–or disproving–the state’s argument?

In Metzl, both the District Court and the Seventh Circuit placed the burden on the state.  The Seventh Circuit stated that “economy in litigation” dictated that the state bear the burden, because i) the burden of producing evidence belonged on the party who, in the absence of evidence, would have no case; and ii) the burden of producing evidence belonged on the party best able to produce the evidence at the lowest cost.^[14]  Absent any real evidence of a potential absenteeism problem, the Court was very skeptical about the state’s gloomy predictions regarding what would happen if school was held on Good Friday.  Noting that “it is a matter of common knowledge” that many Christians do not attend Good Friday services, and that such services are frequently offered during non-school hours, the Court concluded that the fact that Illinois had revoked Good Friday as a holiday for state employees in 1989 indicated that nonobservance of Good Friday was the rule rather than the exception.^[15]  The fact that neither state government offices nor public colleges–which were also in session on Good Friday–suffered from absenteeism problems cast serious doubt on the state’s arguments.^[16]

Judge Manion, writing in dissent, took the majority to task for making the state prove its argument, where normally the burden would rest on the plaintiff to prove her case.  In Judge Manion’s view, once the state produced its justification for the Good Friday holiday, the burden returned to the plaintiff to prove her claim that a Good Friday holiday was not necessary to prevent absenteeism.  Like Judge Manion, the Koenick court was also willing to give much greater deference to what it felt was a reasonable prediction of absenteeism on the part of the State.  Both Judge Manion and the Koenick court looked at statistics that compared the number of Christians adherents to the adherents of other religions and reasoned that the sheer number of Christians meant that Christian holidays were likely to create absenteeism problems that could not be matched by non-Christian religious holidays.  Maryland was actually able to produce evidence that disruption and absences increased on Jewish holidays, so the Koenick court was willing to assume that such disruptions would be worse around Easter, considering that Maryland’s Christian population was ten times its Jewish population.  It also helped Maryland’s argument that it excluded the Jewish holidays of Yom Kippur and Rosh Hashanah from the school calendar if they fell on a weekday, for the same reasons.^[17]

In the absence of any real evidence of potential absenteeism, this argument will probably not be too terribly successful in future litigation.  There are simply too many strikes against it.  None of the major Christian sects require their adherents to take a full day of rest on Good Friday, and Good Friday services are usually offered early in the morning and in the evening after school hours.  It does not appear that government bodies that are in session on Good Friday have absenteeism problems.  The Metzl court also questioned the statewide approach to this issue.  Reasoning that church attendance on Good Friday was likely to vary throughout the state, it suggested that allowing school districts to decide on a local basis whether attendance required a holiday for budgetary/waste reasons was a more reasonable approach than dictating that all school districts throughout the state take the day off.^[18]

• The school desires to give its students and teachers a three-day weekend during March/April, and Good Friday is the logical day to take off because at least some people would be taking it off anyway

Interesting enough, Illinois did not make any serious effort to argue that the purpose of the Good Friday holiday was to give students a three-day weekend in the spring, and that Good Friday was chosen simply because it was likely that some students and teachers would already be taking it off.  This is surprising, because the only other federal Court of Appeals to uphold a Good Friday holiday for government employees did so on the basis of this justification.  In Cammack v. Waihee,^[19] the Ninth Circuit upheld a Hawaiian statute that gave its employees the Friday before Easter off.  The 1941 legislature that passed the law had made it clear that its purpose was to provide another paid holiday for its employees.  It seemed that there was a gap between Lincoln’s Birthday in February and Memorial Day in May, and when the legislature looked at the calendar, Good Friday fell right in the middle of that gap.  According to the court, the governor’s reasons for vetoing a similar act in an earlier bill was proof of that secular reason:  he claimed that “the holidays were getting a bit thick about that time of year.”^[20]  The fact that Good Friday was undoubtedly a Christian holiday and that the legislature was candid in admitting that putting the proposed holiday on Good Friday was convenient because employees were already taking the day off did not bother the court.  It relied on Justice Douglas’ comment in Zorach v. Clauson^[21] that a legitimate, secular act is not made unconstitutional simply because it accommodates the religious practices of some citizens.

It appears that Illinois made a half-hearted attempt to argue such a rationale for its statute.^[22]  The court rejected the argument for lack of any evidence, but it noted that had the state forthrightly made such a pronouncement regarding Good Friday, “we might have a different case.”^[23]  In fact, the Court all but invited Illinois to pass a new statute with the official purpose of adopting a “spring weekend.”^[24]

Maryland apparently did make such an argument.  Maryland’s argument was aided by the fact that the Maryland statute did not mention Good Friday by name; instead, it gave students both the Friday before and the Monday after Easter off.  The Koenick court noted Metzl’s comment that Illinois’ case would have been much different had it advanced evidence of a “three-day spring weekend” purpose, and noted that this was the “most significant” difference between Maryland’s and Illinois’ statutes.^[25] The Koenick court therefore ruled that Maryland’s statute was constitutional.

Does it matter that Maryland may have originally passed its 130 year-old Good Friday statute for religious purposes?  Not necessarily, so long as the purpose of the holiday has evolved into a secular purpose.  In 1961, the Supreme Court decided McGowan v. Maryland,^[26] a challenge to Sunday Closing Laws on the basis that Sunday is predominately a religious day of worship for Christians.  The problem faced by the Supreme Court was the origin of the Closing Laws:  “There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces.”^[27]  The Court went on, however, to trace the evolution of the Sunday Closing Laws.  What had once been a religious practice, according to Chief Justice Warren, had evolved into a secular day of rest.  The most telling piece of evidence of this secular shift was that the chief supporters of the Closing Laws were now the unions, not the churches.^[28]  The fact that a practice had once been motivated by religious reasons would not condemn it if the court could find newer, secular reasons for continuing it.  In other words:

To say that the States cannot prescribe Sunday as a day of rest for these [secular] purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.^[29]

The Koenick court also held that under Lemon, the Easter statute did not have the primary effect of advancing or inhibiting religion, because it gave everyone the weekend off and did not require or even encourage students to attend religious services on Good Friday.  The court also determined that there was not excessive entanglement, holding that consulting a calendar to determine the date of Easter was not “excessive.”  To be on the safe side, the court then applied the hodge podge of “tests” derived from recent Supreme Court decisions, finding i) that under Justice O’Connor’s test from County of Allegheny, the holiday did not grant an added benefit to any one religion that it did not give everyone else; ii) that under Lee v. Weisman it did not coerce anyone to participate in any religious practices; and iii) that under Kiryas Joel, it satisfied the neutrality test.

Can a principled distinction be drawn between Metzl and Koenick?  Although differences between the language and the history of the two statutes exist, they are more cosmetic than real.  The fact that the Maryland statute did not mention “Good Friday” by name made it easier for the court to find a secular purpose, but this does not hide the fact that Maryland’s “four-day spring weekend” is specifically defined by its relationship to Easter, rather than by a specific weekend in March or April.  The obvious effect of the statute, bottom line, is to give students Good Friday off.

 

^[1]See Cammack v. Waihee, 932 F.2d 765, 782 (9th Cir. 1991) (J. Nelson, dissenting) (comparing Good Friday to Christmas: “The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not.”).

^[2]Metzl v. Leininger, 850 F. Supp. 740 (N.D. Ill. 1994), aff’d, 57 F.3d 618 (7th Cir. 1995).

^[3]Koenick v. Felton, 973 F. Supp. 522 (D. Md. 1997), aff’d, 190 F.3d 259 (4^th Cir. 1999).

^[4]57 F.3d at 620.

^[5]Koenick, 973 F. Supp. at 525.

^[6]Metzl, 57 F.3d at 620.

^[7]Cammack v. Waihee, 932 F.2d 765, 775-79 (9th Cir. 1991).

^[8]Id. at 782 (J. Nelson, dissenting).

^[9] Metzl, 57 F.3d at 622.

^[10]Id.

^[11]Metzl, 57 F.3d at 620-21.

^[12]The court reserved the question of whether the practice of allowing individual districts to choose whether to close on religious holidays also violated the Constitution.  See id. at 749 n.12.

^[13]850 F. Supp. at 747-49.  See also 57 F.3d at 621 (“The state law closing all public schools on Good Friday makes the burden of religious observance lighter on Christians than on the votaries of other religions.”).

^[14]57 F.3d at 622.

^[15]57 F.3d at 621-22.

^[16]Id.  See also 850 F. Supp. at 747.

^[17]Koenick, 973 F. Supp. at 526.

^[18]57 F.3d at 623-24.

^[19]Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991).

^[20]Cammack, 932 F.2d at 775.

^[21]Zorach v. Clauson, 343 U.S. 306, 313-14, 72 S. Ct. 679, 684 (1952).

^[22]See 57 F.3d at 623 (“The argument is no more than hinted at in the state’s brief (“students, parents and teachers have grown accustom [sic] to this day as a three-day weekend in the spring.”).)”

^[23]57 F.3d at 623.

^[24]57 F.3d at 624.

^[25]Koenick, 973 F. Supp. at 529.

^[26]366 U.S. 420, 81 S. Ct. 1101 (1961).

^[27]Id. at 1109.

^[28]Id. at 1110.

^[29]Id. at 1115.

So I was going back and looking at some older cases, and I thought this one was worth mentioning:  displaying giant inflatable rats is in fact protected by the First Amendment.  In a labor dispute between New York-based Microtech Contracting and the “Mason Tenders District Council of Greater New York and the Asbestos, Lead, and Hazardous Waste Laborers’ Local 78” (which must look great on t-shirts), Microtech went to court over the display of “Scabby the Rat,” which it claimed was a violation of the “no-strike” provision of the collective bargaining agreement.  District Judge Joseph Bianco disagreed and sided with the Rat:  “[T]he defendants’ peaceful use of a stationary, inflatable rat to publicize a labor protest is protected by the First Amendment.”

Apparently Scabby had been used by unions since 1990 as a symbol of protest around the country, and has won a number of legal battles.  Who knew?

The Supreme Court declined to hear the appeal today in Bell v. Itawamba County Sch. Bd., the Fifth Circuit case involving a student who recorded a rap song that accused two coaches at his school of engaging in sexual misconduct with female classmates and posted it on YouTube.  The Fifth Circuit had found that the school district “reasonably could find Bell’s rap recording threatened, harassed, and intimidated the two teachers.”  The Supreme Court has yet to hear a case involving the discipline of students for true off-campus speech – and it looks like it won’t be this one, either.

The Freedom from Religion Foundation has sued Texas Governor Greg Abbott over his removal of a display from the public areas of the Texas State Capitol building.  The display showed Benjamin Franklin, Thomas Jefferson, George Washington and the Statue of Liberty standing around a manger that held the Bill of Rights.  Abbott called it a “juvenile parody” that used “tasteless sarcasm” to mock Christianity.  The lawsuit is Freedom from Religion Foundation v. Governor Greg Abbott,  Civil Action No. 1-16: CV-00233; In the United States District Court for the Western District of Texas, Austin Division.  Should be an interesting case – we will keep you updated.

I am speaking today in Austin at the UT School Law Conference on “The Other Tinker Test:  Analyzing the Conflict Between Student Free Speech Rights and a School’s Obligation to Maintain a Safe and Secure Environment.”  I will post my paper next week.

In August 2015, the Fifth Circuit issued its long-awaited en banc decision in Bell, the You-Tube rap video case in which the Fifth Circuit panel had issued a decision that seriously impacted a school’s ability to discipline students for off campus speech.  Taylor Bell, a high-school senior and aspiring rap artist, recorded a rap song that accused two coaches at his school of engaging in sexual misconduct with female classmates.  The language of the song, which went through a couple iterations as it was posted first on Facebook and then on YouTube, is pretty rough, and contains at least the following “threats”:

• “betta watch your back / I’m a serve this nigga, like I serve the junkies with some crack”;
• “Run up on T–Bizzle / I’m going to hit you with my rueger”;
• “you fucking with the wrong one / going to get a pistol down your mouth / Boww”; and
• “middle fingers up if you want to cap that nigga / middle fingers up / he get no mercy nigga”.

Bell was suspended and later sent to an alternative school.  He admitted that he had not reported the alleged misconduct to any school officials, because he thought they would ignore his complaints, but claimed that he made the rap recording because he knew that people were “gonna listen to it, somebody’s gonna listen to it.”    Id. at 385.  Bell claimed that he did not mean that he was going to shoot anyone, but that he was only “foreshadowing that something might happen.” Id. at 386.

The district court concluded that the rap song constituted “harassment and intimidation of teachers and possible threats against teachers and threatened, harassed, intimidated school employees.” Bell, 859 F.Supp.2d at 840.  The court found that the off-campus student speech was reasonably likely to cause a material and substantial disruption of school activity, and therefore satisfied the Tinker test.

On appeal, a divided panel of the Fifth Circuit found that the discipline violated the student’s free speech rights, because this song did not cause “substantial disruption” at school.  If you read both of the lower opinions, it seems as if the judges were reading two completely different songs. The panel almost seemed to view Bell as some kind of noble hero, blowing the whistle on the inappropriate activities of the coaches at issue. With regard to the language of the song, the panel held that:

[T]he song amounts only to a rhetorical threat—not a genuine one—and does not come close to the catastrophic facts threatened in Ponce, which Judge Jolly emphasized were evocative of a “Columbine” or “Jonesboro”-style school attack. Indeed, Bell testified that he did not intend to threaten the two coaches with his rap song; rather, the song was meant to be an artistic expression that reflected Bell’s real-life experiences and to raise awareness of an important issue of concern that he felt would be ignored by school officials.”

774 F.3d at 299.

The en banc Fifth Circuit saw the song in a whole different light:

A reasonable understanding of Bell’s statements satisfies these definitions; they: threatened violence against the two coaches, describing the injury to be inflicted (putting the pistol down their mouths and pulling the trigger, and “capping” them), described the specific weapon (a “rueger” [sic], which, as discussed supra, is a type of firearm), and encouraged others to engage in this action; and harassed and intimidated the coaches by forecasting the aforementioned violence, warning them to “watch [their] back[s]” and that they would “get no mercy” when such actions were taken. Accordingly, as further discussed infra, there is no genuine dispute of material fact that Bell threatened, harassed, and intimidated the coaches by intentionally directing his rap recording at the school community, thereby subjecting his speech to Tinker.

799 F.3d at 396-97.  The court noted that while students do retain some right to freedom of speech, that right must be tempered in light of a school’s duty to “teach [] students the boundaries of socially appropriate behavior.” Id. at 390 (quoting Fraser, 478 U.S. 675, 681 (1986)).

Although the court began by noting that all four of the Supreme Court’s student speech cases were limited to “speech inside the ‘schoolhouse gate’,” id. at 392, the court recognized that a school district’s duties and responsibilities have changed in the Internet era:

Over 45 years ago, when Tinker was decided, the Internet, cellphones, smartphones, and digital social media did not exist. The advent of these technologies and their sweeping adoption by students present new and evolving challenges for school administrators, confounding previously delineated boundaries of permissible regulations.

Id. at 392.  The court acknowledged that students now have the ability to communicate instantaneously and from virtually any location via the Internet, and that such speech can be accessed anywhere, by anyone, at any time. The court agreed that “off-campus threats, harassment, and intimidation directed at teachers create a tension between the student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community.”  Id.

The court also agreed that this issue has been greatly affected by the recent rise of incidents of violence against school communities. As the court noted, “[s]chool administrators must be vigilant and take seriously any statements by students resembling threats of violence, as well as harassment and intimidation posted online and made away from campus.”  Id. at 393 (internal citations omitted). All of these issues, concluded the court, “have drawn into question the scope of school officials’ authority.”  Id.

The court readily rejected Bell’s position that Tinker did not apply to speech which originated and was disseminated off-campus, without the use of school resources:

Bell’s position is untenable; it fails to account for evolving technological developments, and conflicts not only with our circuit’s precedent, but with that of every other circuit to have decided this issue.

Id. at 393.  The court reviewed the decisions in cases like Wynar, Kowalksi, and Doninger, and concluded that “based on our court’s precedent and guided by that of our sister circuits, Tinker applies to off-campus speech in certain situations.” Id.

However – – and unfortunately for us – – the court did not feel that it needed to adopt any of the specific rules used by other circuits , because Bell’s admittedly intentionally directing at the school community his rap song containing threats to and harassment of two teachers permitted Tinker to be applied in this instance.  The court felt that under its previous decision in Porter:

 [A] speaker’s intent matters when determining whether the off-campus speech being addressed is subject to Tinker. A speaker’s intention that his speech reach the school community, buttressed by his actions in bringing about that consequence, supports applying Tinker’s school-speech standard to that speech.

Id. at 395 (citing Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 618, 620 (5th Cir.2004).

The court then held:

The pervasive and omnipresent nature of the Internet has obfuscated the on-campus/off-campus distinction advocated by Bell, making any effort to trace First Amendment boundaries along the physical boundaries of the school campus a recipe for serious problems in our public schools. Accordingly, in light of our court’s precedent, we hold Tinker governs our analysis, as in this instance, when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was disseminated, off-campus without the use of school resources.

Id. at 394 (internal citations omitted). The court had little trouble determining that Bell met this standard, since he admitted that he had produced and disseminated the rap song knowing that students, and hoping that administrators, would listen to it.

Turning to the issue of whether Bell’s song satisfied Tinker, the court came very close to adopting a rule that “a student’s threatening, harassing, and intimidating a teacher inherently portends a substantial disruption, making feasible a per se rule in that regard,” id. at 397, but decided that the facts were such that the court did not need to determine whether a per se rule was necessary. The court held that it was not a difficult burden for school officials to justify forecasting a substantial or material disruption, and derived from the cases the following factors that school officials should take into consideration:

• the nature and content of the speech, the objective and subjective seriousness of the speech, and the severity of the possible consequences should the speaker take action[1];
• the relationship of the speech to the school, the intent of the speaker to disseminate, or keep private, the speech, and the nature, and severity, of the school’s response in disciplining the student[2];
• whether the speaker expressly identified in educator or student by name or reference, and past incidents arising out of similar speech[3];
• the manner in which the speech reached the school community[4];
• the intent of the school in disciplining the student[5];
• the occurrence of other in-school disturbances, including administrative disturbances involving the speaker, such as “school officials having to spend considerable time dealing with these concerns and ensuring that appropriate safety measures were in place.”[6]

Based on the facts at issue, the court found that “the manner in which [Bell] voiced his concern – – with threatening, intimidating, and harassing language – – must be taken seriously by school officials, and reasonably could be forecast by them because a substantial disruption.”  Id. at 398.

The Court the offered the following thoughts in conclusion:

In determining objective reasonableness vel non for forecasting a substantial disruption, the summary-judgment record and numerous related factors must be considered against the backdrop of the mission of schools: to educate. It goes without saying that a teacher, which includes a coach, is the cornerstone of education. Without teaching, there can be little, if any, learning. Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.

It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist—to educate.

If there is to be education, such conduct cannot be permitted. In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined.

Put succinctly, “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment”.

Id. at 399-400.  So that’s right:  Bell’s rap song threatened civilization itself.

 

[1] from Wynar, 728 F.3d at 1070-71.

[2] from Doninger, 527 F.3d at 50-52.

[3] from Kowalski, 652 F.3d at 574.

[4] from Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 985 (11th Cir.2007)

[5] from J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 926, 929 (3d Cir.2011).

[6] from D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766 (8th Cir.2011).

Breaking news:  the Fifth Circuit panel decision in Bell v. Itawamba County School Board, which had ruled for the student, was just reversed by the Fifth Circuit en banc, reinstating the grant of summary judgment to the school district.  From the decision:

Primarily at issue is whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50-year-old standard for restricting student speech, based on a reasonable forecast of a substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities”). Because that standard is satisfied in this instance, the summary judgment is AFFIRMED.

More about this important decision later (once I have a chance to read all 101 pages of it….)

Walker v. Sons of Confederate Veterans, Inc., 2015 WL 2473375 (2015), is an interesting decision, although it remains to be seen if it will be a major game-changer in the area of forum analysis, or a fact-specific blip-on-the-radar limited to license plate programs.  Walker involved a challenge to the Texas specialty license plate program, which allowed groups to propose and design specialty license plates, which would then be available to the general public.  According to the opinion, Texas now offers around 350 different designs, including those from the Boy and Girl Scouts, out-of-state universities (such as the University of Florida and Notre Dame), and even private companies (such as ReMax and Dr. Pepper).  Texas rejected, however, a proposed design from the Sons of Confederate Veterans (“SCV”), which would have featured a Confederate battle flag, on the grounds that “public comments had shown that many members of the general public find the design offensive, and because such comments are reasonable.”  The State of Texas argued that the license plates were government speech which it was entitled to control, whereas the SCV countered that by opening up the license plate program to a wide variety of groups, the State had created a limited public forum, and that the messages on the license plates were the private messages of the individual groups, such that the rejected of the SCV proposed plate constituted viewpoint discrimination.

The Court split 5-4, with the liberal side of the Court – surprisingly joined by Justice Clarence Thomas to form an unlikely majority – holding that “Texas’s specialty license plate designs constitute government speech.”  There was actually quite a bit that all nine Justices agreed on:  both sides agreed that “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”  They all agreed on the contours of forum analysis, and although the majority does not come out and say so, I suspect that they would have agreed that had the license plates been private speech subject to the forum analysis, the rejection of the SCV plate would have constituted viewpoint discrimination.

The only question that split the Justices, then, was whether the license plates constituted government speech, as the State claimed, or whether the different messages on the plates were the private speech of the sponsoring groups (or the individual vehicle owners), as SCV argued.  To decide that question, both groups turned to a case called Pleasant Grove City v. Summum, 555 U.S. 460 (2009), where the Court had held that a city did not violate the First Amendment when it refused to accept a religious monument that a private group wanted to donate to be located in a city park, when the city had previously accepted a number of other monuments from other private groups for the park, including a Ten Commandments monument. The Court rejected the argument that the city had created a forum for private speech in the park, finding instead that the monuments represented government speech, even though the majority of them had been donated by private groups.

The Walker Court found that three factors governed the Summum decision:  first, that “history shows that governments have long used monuments to speak to the public.”  Second, that it “is not common for property owners to open up their property for the installation of permanent monuments that convert a message with which they do not wish to be associated,” such that a reasonable observer would view the monument as conveying some message on behalf of the property owner.  Third, it was relevant that the city maintained control over the selection of the monuments.  Applying these factors to the Texas specialty license plate program, the majority concluded that they tilted in favor of finding that the license plates were government speech.

Justice Alito, writing for the dissent (unsurprisingly – Justice Alito is a big “private speech” theory proponent), disagreed on every factor, concluding that the majority’s analysis “takes a large and painful bite out of the First Amendment.”  In particular, he pointed out that the program was created to make money, not to convey messages with which the State agreed, and scoffed at the notion that Texas supported all of the 350 plus messages that its license plates were now conveying:

If you did your viewing [of license plates] at the start of the college football season and you saw Texas plates with the names of the University of Texas’ out-of-state competitors in upcoming games–Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State–would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?

Justice Alito agreed that while historically Texas plates had conveyed state-approved messages, “when, at some point within the last 20 years or so, the State began to allow private entities to secure plates conveying their own messages, Texas crossed the line.”  In his opinion, Texas opened a limited public forum when it created the specialty license plate program, and rejecting the SCV plate was therefore unconstitutional viewpoint discrimination.

As someone who until recently had official Texas “University of Michigan” plates (which were stolen off my car 2 weeks ago, undoubtedly by some nefarious Ohio State fan), I get Justice Alito’s point — but he ended up in the minority, so we need to decide whether and how Walker will impact other governmental entities. It is entirely possible that future courts will see Walker as being limited to license plate programs (and Summum as limited to public monument case), since the majority went to some lengths to trace the history of license plates, and noted that whatever the individual message being conveyed, it was located on a plate that bore the “TEXAS” legend and that was essentially a government ID for a car.

However, there are some analogous school situations to which Walker may apply:  most notably, the school paver cases. Numerous schools around the country have raised funds by selling pavers (or bricks, or tiles), letting students put their names on them, and then putting them out on the front walkway around the flag pole.  But for even more money, some schools have allowed students to put little symbols on their bricks.  And when schools starting telling students that they couldn’t choose religious symbols, that’s when the lawsuits started.

I originally thought this was an easy issue:  the bricks are a permanent part of the school, and as such would be seen as government speech.  But three different district courts disagreed with me:  Kiesinger v. Mexico Academy and Central School, 427 F.Supp.2d 182 (N.D. N.Y. 2006), Seidman v. Paradise Valley Unified School District No. 69, 327 F.Supp.2d 1098 (D. Ariz. 2004), and Demmon v. Loudoun County Public Schools, 342 F.Supp.2d 474 (E.D. Va. 2004).  All three courts found that the schools had engaged in viewpoint discrimination by rejecting the religious bricks but allowing the non-religious bricks, and that the Establishment Clause did not require removal of the bricks.

So after Walker, I may have been right in the first place:  like license plates, permanent bricks built into the school certainly look like official school speech, and schools may be able to tell students that they can’t pick religious symbols without violating the First Amendment.  But as I said at the beginning, we will have to see if Walker ends up being any more significant to forum analysis cases.

The United States Supreme Court ruled today that Texas did not violate the First Amendment by rejecting a proposed license plate design that featured a Confederate battle flag.  In Walker v. Sons of Confederate Veterans, a 5-4 decision authored by Justice Stephen Breyer, the Court held that “Texas’s specialty license plate designs constitute government speech,” and concluded that “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”

More on this case later….