The Most Important Education Case of the Decade

On April 23, 2020, the Sixth Circuit Court of Appeals issued Gary B. et al v. Whitmer, a case arising out of a challenge to conditions at some of Detroit’s worst-performing public schools.  Gary B. is not a First Amendment case, but rather a substantive due process case under the Fourteenth Amendment.  I am writing about it on this blog, however, because I believe it has the potential to be one of the most most important education cases in decades. Why? Because for the first time in recent memory, a court of appeals has ruled that students have a constitutionally-protected right to education, something that the Supreme Court has rejected or avoided in decades worth of cases, including cases such as San Antonio Independent School District v. Rodriguez and Plyler v. Doe.
Now, there are limits to the reach of Gary B:  the Court ruled that students have a right to "a…

The Curriculum Conundrum: Trying to Teach About Religion

Last week the United States Supreme Court rejected an appeal in Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019), a case bought by Caleigh Wood challenging two portions of a 5-day unit in her world history class on Islam. Although Wood and her parents admitted that the unit on Islam was overall appropriate, they complained about a statement on a PowerPoint slide that "most Muslim's [sic] faith is stronger than the average Christian", and a fill-in-the-blank exercise that required students to complete certain information (two blanks were at issue) regarding the "Five Pillars" of Islam. Wood contended that these portions of the exercise both endorsed Islam in violation of the Establishment Clause, and required her to engage in compelled speech, which violated her free-speech rights under the First Amendment.

The Fourth Circuit Court of Appeals rejected…

John Tinker

I was honored to introduce John Tinker for his fantastic speech at the summer retreat of the School Law Section of the State Bar of Texas this past weekend. So many people told me they loved hearing the story of his family and their struggles that led to the landmark First Amendment decision in Tinker v. Des Moines Independent Community Public Schools. And look what book he’s reading! (I wasn’t even there when David Hodgins took that picture!)

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Tweeting at Trump

The Second Circuit today issued a major First Amendment decision that should be of interest to all government entities and government officials who use social media:  in Knight First Amendment Institute at Columbia University v. Trump, the Court ruled that President Trump and his staff violated the First Amendment by blocking users from his Twitter account, simply because the users had responded to his tweets by criticizing the President or his policies.  As the Court noted:

We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.

Given the overwhelmingly public nature of the President’s Twitter feed, the Court easily rejected arguments that the President’s tweets were only…

The Scalia Report, Vol. 2

In the second volume of my "Scalia Report," named for the great Justice Scalia and highlighting clever and effective quotes from First Amendment cases, I give you Judge Frank Easterbrook of the Seventh Circuit, and his introduction to a case about the alleged censorship of several articles in a university newspaper attacking the integrity of the  administration after the university decided not to renew the teaching contract of the newspaper's faculty adviser:

"Controversy began to swirl when Jeni Porche became editor in chief of the Innovator, the student newspaper at Governors State University.  None of the articles concerned the apostrophe missing from the University's name.  Instead the students tackled meatier fare...."  Hosty v. Carter, 412 F.3d 731, 732 (7th Cir. 2005) (en banc).

It's good to know that the Seventh Circuit takes proper punctuation seriously.

An Interesting Article…but Not Why You Might Think.

ACLU sues mountain school, claims references to gender and sexuality should not have been eliminated from yearbook
Thanks to Cate Smith at the Education Law Association, for posting the link to this interesting article.  Apparently the ACLU has filed suit against a small school district in California, who (according to the lawsuit) rejected two quotes for senior yearbook pages because they were “politically divisive.”  Both were pro-LGBTQ quotes, with one student claiming that Harry Potter had taught her “no one deserves to live in a closet. What they don’t know can’t hurt them” (those who know me know I love a good Harry Potter reference!)
Now, this will be an interesting lawsuit to follow, in part to see if the court uses the Hazelwood test (the test for school-sponsored speech, which is often applied to school publications like newspapers and yearbooks), or the Tinker material…