Analysis - Authentic and Engaging
Transcription
Analysis - Authentic and Engaging
Inquiry& Analysis January 2008 Employee Use, Misuse, and Abuse of Social Network Sites ..........................................................1 Accomodating Religion in School: Duties to Students and Employees ..........................5 Recognizing Council Members....................................8 Nominations for Board Service ..................................8 Employee Use, Misuse, and Abuse of Social Network Sites By: Michelle A. Todd, John L. DiJohn, and Shayne L. Aldridge, Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights and Springfield, Illinois n January 2007, John Bush, a Florida middle school teacher, was fired after his superintendent discovered "inappropriate" material on Bush's personal MySpace webpage.1 While the content posted to his social networking webpage was not pornographic, school district officials determined that the webpage contained personal information about Bush that "parents would not want their children to know about their teacher." The school district did not restrict its teachers from maintaining personal webpages, but it did inform all district staff not to post inappropriate material on the Internet. I Who's Blogging Now? National School Boards Association’s Council of School Attorneys 1680 Duke Street Alexandria, VA 22314-3493 (703) 838-6722 Fax: (703) 548-5613 E-mail: [email protected] Web site: http://www.nsba.org/cosa In today's technological climate, John Bush is not alone. In 2006, the Employment Law Alliance surveyed over 1,000 American employees and found that up to five percent maintained personal blogs. Of them, 16 percent admitted to posting unfavorable comments about their employers, co-workers, supervisors, or customers. Technocrati.com, a blog tracking website, listed nearly 850 blogs written by teachers in 2006, many of which receive thousands of hits each week. At the touch of a button, Internet users can publicly chronicle personal details concerning their lives through an array of Internet blogs or social networking websites. As the popularity of blogs and social networking sites continues to rise, so does the risk that teachers and other school employees will post inappropriate information online. Many school districts have begun to discipline and even terminate teachers for uncensored images depicting bad behavior and caustic comments concerning the workplace, colleagues, and school administrators. While some blog content may be protected speech, at some point, such content may cross the line. When it does, school districts may want to discipline the teacher. Should a school district concern itself with what a teacher is posting to his or her blog or to a social networking site on a Saturday night? Perhaps, if these postings affect the district. For instance, a teacher's posting may: disclose confidential student records or confidential personnel records; be defamatory; result in a disruption to the school environment; or impair the teacher's ability to perform his or her duties. How much January 2008 Inquiry& AnalysiS Jay Worona, Chair freedom does a school district have to discipline teachers for their off-duty, online conduct? How much freedom does a public school teacher have in his or her speech on the Internet? School districts will need to confront these questions and others in order to identify potential liability when disciplining teachers for their off-duty, online behavior. Below are some of the issues and practical solutions for school attorneys to discuss with districts in an effort to reduce exposure to such liability. Sam S. Harben, Jr., Chair-elect Social Networking Sites, Blogs, and Bloggers A Membership Service of the NSBA Council of School Attorneys Lisa E. Soronen, Editor and Senior Staff Attorney NSBA Council of School Attorneys 2007-2008 Officers A. Dean Pickett, Vice-chair Thomas E. Wheeler, II, Secretary NSBA Officers and Staff Norm D. Wooten, NSBA President Anne L. Bryant, NSBA Executive Director Joseph S. Villani, NSBA Deputy Executive Director Francisco M. Negrón, Jr., NSBA Associate Executive Director and General Counsel Susan R. Butler, Director, Legal Services & Council of School Attorneys Naomi E. Gittins, Deputy General Counsel Thomas Hutton, Senior Staff Attorney Lyndsay Andrews, Manager, Council of School Attorneys Thomas Burns, Legal Assistant About the NSBA Council Of School Attorneys Formed in 1967, the NSBA Council of School Attorneys provides information and practical assistance to attorneys who represent public school districts. It offers legal education, specialized publications, and a forum for exchange of information, and it supports the legal advocacy efforts of the National School Boards Association. Inquiry & Analysis is a membership service of the Council, or can be purchased by subscription for $120 per year. Published electronically ten times a year, Inquiry & Analysis does not appear in March or September. Copyright © 2008 by the National School Boards Association. All Rights Reserved. ISSN: 1069-0190 Currently, tens of millions of Americans maintain blogs, or online diaries, with thousands of new journals being created everyday.2 These Internet-based journals cover a wide variety of topics and are used as a forum to express personal views on everything from politics, to the entertainment industry, to local crime reporting, to the allure of tasty blue crayons.3 Blogs generally are formatted to allow readers to post comments, which are then also available for other readers to view. Because of online journaling's popularity, many bloggers utilize different websites to post, update, and publicly circulate their entries. Internet users frequently compose their journals on social networking websites. Social networking sites allow individuals to: (1) construct a public or semi-public profile or webpage within a bounded system; (2) articulate and maintain a list of other users with whom they share a connection; and (3) view their list of connections and connections made by others within the system.4 Users can easily build online profiles, communicate with other site subscribers via e-mail and comment sections, and share personal information, including photographs, text entries, or music and video clips. MySpace.com, Xanga.com, Friendster.com, Blogger.com, and Facebook.com are all examples of social networking websites that are immensely popular with teenagers and young adults.5 More that 8 million people use Facebook.com every month, and MySpace.com boasts 55 million current members.6 Teachers as Bloggers Teachers utilize blogs and social networking sites for varying purposes. Some educators have embraced blogs as a way to engage colleagues, administrators, students, and parents in thoughtful educational discourse. Others have used their blogs as a forum to rant about colleagues, administrators, students, and parents. Still others use social networking sites to interact with others on topics of mutual inter- est that are wholly unrelated to their employment as teachers. Authority to Discipline for Blogging Clearly, public school teachers have some freedom to express themselves on blogs and social networking sites. But, unlike private sector employees, teachers are role models for the children they educate. Parents entrust educators with the duty to impart basic societal values and qualities of good citizenship to their children.7 The ability and authority of a school district to discipline a teacher for his or her offduty, online conduct depends upon: (1) whether the teacher has tenure; (2) the nature of the offending conduct, which in many cases is statutorily defined; (3) the nexus between the conduct and job performance; (4) the terms and conditions of a collective bargaining agreement; and (5) first amendment considerations. Probationary teachers are generally employed "at-will" and are not protected by statutory tenure or just cause pursuant to a collective agreement. Accordingly, school officials have more flexibility in disciplining or terminating probationary teachers for off-duty, online misconduct. When disciplining tenured teachers for offduty, online conduct, school officials must first determine that the conduct violates some statutory authority or school board policy. In most states, tenured teachers may only be removed from employment for "cause." "Cause" typically includes "unprofessional" or "immoral" conduct, among other factors. In North Carolina, for example, school districts may discipline or dismiss teachers for several types of misconduct including: inadequate performance, immorality, insubordination, neglect of duty, moral turpitude, advocating the overthrow of the government, and failure to fulfill teaching duties.8 Similarly, Illinois' teacher dismissal statute provides school districts with the authority "to dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause . . . and to dismiss any teacher whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it." 9 Offensive teacher blogs or inappropriate online materials arguably constitute "immoral" behavior. In Illinois, if the school administrator determines that the off-duty, online conduct is immoral, the administrator must then determine whether the conduct is "irremediable" or "remediable." A tenured teacher commits irremediable misconduct when: (1) the conduct Inquiry & Analysis January 2008 causes significant damage to students, faculty, or the school; and (2) the teacher would not have corrected his or her conduct, even if the teacher had been issued a written warning and afforded a period of time for remediation.10 "Remediable" conduct constitutes misconduct in the ordinary course of duties which, if advised of, could ordinarily be remedied.11 Irremediable conduct is subject to termination, while remediable conduct is subject to discipline short of termination. In most states, "immoral conduct" is irremediable and, depending on the conduct's severity, can lead to discipline and termination.12 In determining that off-duty, online conduct is irremediable, school officials should consider the dissemination of the online material and the residual effect the posting or image has had on the student body and the community. Specifically, school officials should determine if the misconduct has a significant connection to the teacher's professional responsibilities. How can school officials determine if offduty, online conduct bears a significant connection to the teacher's role as an educator? In terms of general off-duty misconduct, criminal conduct has been held to be irremediable per se and to constitute appropriate grounds for teacher discipline and dismissal.13 Specifically, the possession of a controlled substance, driving under the influence, and assault and battery charges have been held to constitute irremediable conduct, even without criminal conviction. Accordingly, any illegal misuse of alcohol or drugs or other criminal behavior documented on social networking sites most likely amounts to irremediable conduct justifying a school district's decision to discipline or terminate a teacher.14 In contrast, a teacher's general misuse of social networking sites will not typically include an illegal component. For example, teachers may post personal pictures of "unbecoming" conduct, including pictures of social drinking, inappropriate recreational activities, or even legal adult pornography, or describe unprofessional behavior in a blog or live journal. If the teacher's online conduct is disruptive to the teaching environment, school boards and administrators should apply a nexus analysis to determine whether the outof-workplace misconduct significantly and negatively affects the teacher's ability to perform his or her job.15 The school district must balance the competing interests of the teacher |3 and the district while taking into consideration the community's relevant standards.16 School districts have broad discretion in determining whether a teacher is capable of being an effective teacher and role model for impressionable students.17 An example of inappropriate online conduct that negatively affects a teacher's performance and justifies discipline or termination is the disclosure of confidential student information in a blog. Such a disclosure violates FERPA and state student records laws. The issues are many and the stakes are high. School districts should undertake an educational approach to this issue before it happens and inform staff of the consequences for such misconduct. First Amendment Limits on Disciplining for Blogs Public school districts, like private sector employers, may discipline teachers for the content of their speech. Unlike private employers, the public school district's right to discipline is limited by the First Amendment, which protects a public school teacher's right to speak as a citizen about matters of public concern under most circumstances.18 If a teacher's speech was made as a citizen and not pursuant to his or her official duties and is about a matter of public concern, then his or her speech may be constitutionally protected. To determine whether a teacher's speech is constitutionally protected, courts will apply the balancing test first announced in Pickering v. Board of Education19 and later clarified in Connick v. Myers.20 Under the ConnickPickering test, a teacher may establish that his or her speech is constitutionally protected if: (1) the teacher spoke as a citizen on matters of public concern; and (2) the teacher's interest as a citizen in commenting upon matters of public concern outweighs the interest of the school district in promoting the efficiency of its public services. The Supreme Court has provided further guidance as to when a public employee speaks "as a citizen." In Garcetti v. Ceballos, the Court held, "[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."21 After Garcetti, courts will only engage in the balancing of public and private interests under the Connick-Pickering test when the government penalizes speech that a public employee utters as a citizen. To date, discipline for off-duty, online blogging in the public sector has not resulted in substantial litigation. However, the Supreme Court appears to have identified two lines of cases under which a public employer's limitations of its employees' speech can violate the First Amendment.22 The first line "involves instances where a public employee speaks out about the functioning of the branch of government for which he or she works, a matter on which he or she is uniquely qualified to comment by virtue of their job status."23 The second line "involves government regulation of statements that are unrelated to the employee's job."24 After Garcetti, it appears that under either line of cases, courts will utilize the Garcetti-Connick-Pickering test to determine whether a teacher's speech posted to an Internet blog is protected by the First Amendment. Where the off-duty, online speech is related to the teacher's position, and the teacher has addressed the same issues with the school district, the Garcetti analysis will likely apply. However, it remains to be seen whether Garcetti is applicable in a situation where the teacher posts text or pictures related to his or her employment to a blog without first raising the issue with his or her employer. If Garcetti is applicable, the teacher must demonstrate that he or she did not make the 4 | Inquiry & Analysis January 2008 posting pursuant to his or her official duties. If this is established, then the courts will apply the Connick-Pickering balancing test. If not, the speech will not be entitled to First Amendment protection, and the school district is free to discipline the teacher. the speech is protected. However, where the speech touches on a matter of public concern, but is potentially disruptive to the school environment or the teacher's ability to perform his or her duties, then the speech is not protected and discipline may be imposed. However, where the off-duty, online speech is unrelated to the teacher's position,25 even if applied, the Garcetti analysis will likely be disposed of easily. The courts will then proceed to the Connick-Pickering balancing test to determine if the speech is about a matter of public concern26 and whether the teacher's interest as a citizen in commenting upon matters of public concern outweighs the interest of the school district in promoting the efficiency of its public services.27 In such cases, where courts find that the speech is not about a matter of public concern, the speech is unprotected and discipline may be imposed. Where the speech touches upon a matter of public concern and results in no potential disruption to the school environment or the teacher's ability to perform his or her duties, In summary, where a teacher's speech posted on his or her blog, or another's blog, is arguably related to the teacher's job, to successfully discipline the teacher a school district must initially demonstrate that the teacher made these statements pursuant to his or her official duties.28 Where the speech is arguably not related to the teacher's job, to impose discipline, the district must demonstrate that the teacher's speech was not a matter of public concern or that school district's interest in prohibiting the speech outweighs the employee's interest in speaking.29 Additional Potential Limitations on Discipline Public school districts must also be aware of other potential limitations on their ability to discipline teachers for speech on the Internet including: Personal Privacy Statutes: Many states have employee privacy statutes that restrict employers from disciplining employees for their off-duty conduct.30 ■ Union Activity: Some states have labor relations laws that guarantee public employees the right to organize and to bargain collectively with their employers and to engage in other protected concerted activity with or without a union. If a teacher is blogging on issues concerning terms and conditions of employment, collective bargaining issues, or union association or activity, the speech likely will be protected by such labor relations laws.31 ■ Whistleblower Statutes: Most states and the federal government provide protection against the retaliatory discharge of an employee who has evidence that the employer is breaking the law. These protections may apply when comments or pictures are portrayed on a teacher's blog. ■ Investigating Blogs School officials must act carefully and deliberately in investigating the scope and content of alleged online misconduct. When school district officials learn of a teacher's online conduct, school officials must initially review the posting or picture to determine the veracity and accuracy of information received about it. They must next determine whether the online conduct violates any civil or criminal statute or school board policy. Further, school officials should document the effect the online posting has had, or may have, on the educational environment. If the school officials conclude that the information is true and accurate and violates policy or is disruptive to the educational environment, then school officials should take the following steps: Consider whether the conduct has any criminal implications, and, if so, consider contacting law enforcement. ■ Meet with teacher to review the situation (if requested, permit the teacher to have union representation at the investigatory meeting). ■ Share the information with the teacher. If the teacher admits to posting the online content, inform him or her that the administration will continue to investigate and consider recommending disciplinary action. ■ If the teacher denies the allegations, then conduct further investigation to confirm whether: (1) he or she posted the material; (2) if depictions are at issue, determine whether they are unaltered; and (3) investigate all the teacher's claims to determine their validity. It is important to remember that, in the online world, things are not always as they appear. Stories of students creating fabricated MySpace pages or blogs for teachers are becoming increasingly common. For this reason, it may not be easy to verify whether the teacher was the actual poster of the materials in question. ■ Review the dissemination of the posted content and the posting's effect on the teacher's ability to perform his or her duties. ■ Determine whether the posting disrupted the educational environment. ■ Determine whether conduct is irremediable or remediable, and impose the appropriate level of discipline. ■ Practical Blogging Considerations School boards and administrators should decide how to address teacher blogs prior to discovering disparaging comments about building staff, the administration, or the school board on the Internet. To address these concerns, school districts should follow the swath cut by private businesses and develop a policy that reflects their desired positions regarding blogs.32 For over a decade, school districts have adopted technology use policies for their students and staff. Most policies indicate that the school district will discipline a user for inap- Inquiry & Analysis January 2008 ■ Do not blog on the job. 23 24 Use your own equipment, not the school district's equipment. ■ The truth is always better than the opposite, so think before you blog. ■ 25 26 If your blog is public, do not use personally identifiable information when discussing colleagues, parents, and especially students. ■ propriate conduct on the computer system. Blogging, however, may not fall within the policy as written. Moreover, the school district may decide that teacher blogging for educational purposes is an appropriate activity. School districts have two options. The first is to develop a policy that specifically addresses blogging by school personnel. The second is to amend the current technology use policy to include blogging by staff and students. No matter the choice, school district should consider several issues when developing a blogging policy. School districts that want to be proactive should consider developing the policy in cooperation with staff members who currently blog. Getting first-hand insight will help districts identify potential trouble areas. Blog policies that are not a part of the district's technology use policy and/or user agreements should refer back to those documents to encompass the discipline provisions they include. The policy should make users aware that they have no expectation of privacy when using district equipment to create, maintain, or post comments on their blogs or those of others, and that their blogging may be subject to review by school administration. The policy also should set reasonable expectations regarding the offduty, online activities of staff. While the ability to discipline for off-duty blogging is limited, by developing a set of mutual expectations, the school district may alleviate the need for confrontation in the future. The box below discusses some considerations teachers should make when blogging and some considerations school districts should make when adopting policies related to blogging. Considerations for Blogging Teachers Public v. anonymous: are you willing to sign your name to the comments you post? ■ Considerations for District Blog Policies Encourage bloggers to take responsibility for their postings. ■ Prohibit the use of school mascots, symbols, logos, or other district trademarks on employee blogs. ■ ■ Prohibit the use of school district property for personal blogs. ■ Require the use of a disclaimer regarding the statements posted on blogs. ■ Develop the policy with staff bloggers' input, make sure all staff are aware of the policy, and give notice that administrators may visit the blogs at any time. I&A ■ End Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 A blog has the potential to be read by thousands of people, including those you are writing about. ■ Prohibit blogging during the school day. 18 19 20 21 22 Local6.com, Fla. Teacher Fired over MySpace Page, Jan. 25, 2007, http://www.local6.com/education/10838194/detail.html. See LEE RAINIE, PEW INTERNET AND AMERICAN LIFE PROJECT DATA MEMO, THE STATE OF BLOGGING (Jan. 2005), http://www.pewinternet.org/ pdfs/PIP_blogging_data.pdf. See TastyBlueCrayons, http://www.tastybluecrayons.com/ (last visited Dec. 3, 2007). Danah M. Boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, JOURNAL OF COMPUTER-MEDIATED COMMUNICATION (Oct. 2007), http://jcmc.indiana.edu/vol13/issue1/ boyd.ellison.html. Business Software Alliance, Online CyberSafety, Cyber Safety Glossary, http://www.bsacybersafety.com/threat/social_ networking.cfm (last visited Dec. 12, 2007). Ball State University, Security and Policy, Safe Practices for Online Social Networking, http://www.bsu.edu/security/article/ 0,1384,86675-5031-40336,00.html (last visited Dec. 12, 2007). Younge v. Bd. of Educ. of City of Chicago, 788 N.E.2d 1153, 1162 (Ill. App. Ct. 2003). N.C. GEN. STAT. § 115C-325. 105 ILL. COMP. STAT. § 5/10-22.4. 105 ILL. COMP. STAT. § 5/10–22.4. 105 ILL. COMP. STAT. § 5/10–22.4; Ahmad v. Bd. of Educ. of City of Chicago, 847 N.E.2d 810 (Ill. App. Ct. 2006). Id. See McBroom v. Bd. of Educ., Dist. No. 205, 494 N.E.2d 1191 (Ill. App. Ct. 1986). Id. Younge v. Bd. of Educ. of City of Chicago, 788 N.E.2d 1153 (Ill. App. Ct. 2003). Id. Id. See Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). 391 U.S. 563 (1968) 461 U.S. 138 (1983). Id. See Roberts v. Ward, 468 F.3d 963, 968 (6th Cir. 2006) (citing City 27 28 29 30 31 32 |5 of San Diego, Cal. v. Roe, 543 U.S. 77 (2004)). Id. Id. For a discussion of "related" and "unrelated" speech see Dible v. City of Chandler, 502 F.3d 1040 (9th Cir. 2007) and City of San Diego, Cal. v. Roe, 543 U.S. 77 (2004). See City of San Diego, Cal. v. Roe, 543 U.S. 77 (2004) (termination of police officer for offering explicit videos for sale on online auctions site did not violate First Amendment right to free speech because officer's speech did not qualify as a matter of "public concern" under Pickering/Connick and speech was detrimental to the mission and function of police department); Dible v. City of Chandler, 502 F.3d 1040 (9th Cir. 2007)(termination of police officer for maintaining sexually explicit website featuring himself and his wife was not speech on a matter of "public concern"); Melzer v. Bd. of Educ. of City Sch. Dist. of City of New York, 336 F.3d 185 (2d Cir. 2003) (teacher was member of North American Man/Boy Love Association and wrote articles for organizational newsletter; school district terminated employee and court held that despite finding that teacher's speech touched upon a matter of "public concern," termination should be upheld because school board's interest in orderly operation of school outweighed teacher's interest in commenting on matters of "public concern"); Pappas v. Giuliani, 290 F.3d 143, 146-48 (2d Cir. 2002) (assuming that a police officer's off-duty, anonymous mailings of racist materials were of public concern, court held under Pickering balancing that the police department was justified in firing the officer); Eberhardt v. O'Malley, 17 F.3d 1023, 1026-28 (7th Cir.1994) (holding that even if an assistant state's attorney's novel about the criminal justice system did not touch on a matter of public concern, his employer had to show legitimate interests that out weighed the social interest in the attorney's speech); Flanagan v. Munger, 890 F.2d 1557, 1562-67 (10th Cir. 1989) (holding that the public concern test did not apply to the sale of sexually explicit, non-obscene videos by police officers because the expressive conduct did not occur at work and was not about work, and that Pickering balancing tipped in the officers' favor). However, in such cases, it is not clear whether there is a need to apply the public concern test prior to applying the Pickering balancing test. But see Scarbrough v. Morgan County Board of Education, 470 F.3d 250 (6th Cir. 2006) (superintendent's intended speech to pray or speak before congregation concerning religion and homosexuality, which took place away from school, while off-duty, touched on a matter of public concern). Courts have also employed the Connick-Pickering analysis in cases where public employees speak or write on their own time on topics unrelated to their employment. See City of San Diego, Cal. v. Roe, 543 U.S. 77 (2004) (termination of police officer for offering explicit videos for sale on online auctions site did not violate First Amendment right to free speech because officer's speech did not qualify as a matter of "public concern" and was detrimental to the mission and function of police department); Dible v. City of Chandler, 502 F.3d 1040 (9th Cir. 2007) (termination of police officer for maintaining sexually explicit website featuring himself and his wife was not speech on a matter of "public concern"). See Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689 (5th Cir. 2007) (high school athletic director's memoranda to office manager and principal inquiring about athletic account balance were written in course of performing his job as athletic director); Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323 (10th Cir. 2007) (superintendent spoke as a school district employee rather than as a private citizen when she raised concerns to the board about lawful and proper conduct of school business). See Roberts v. Ward, 468 F.3d 963, 968 (6th Cir. 2006) (postGarcetti decision finding employee's speech unrelated to position; therefore, no analysis of whether speech was required pursuant to employee's official duties). California, New York, Massachusetts, Connecticut, Delaware, North Dakota, Florida, Michigan, Illinois, and Colorado have enacted such laws. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002). Computer giants Microsoft, Sun Microsystems, and Hewlett Packard, Internet search engine Google, social network site Friendster, and other companies such as Delta Air Lines, Disney, and Boston University all have created blogging policies defining their positions regarding the on- and off-duty blogging conduct of their employees. Moreover, many of these companies have also fired employees for engaging in blogging that the company has found detrimental. 6 | Inquiry & Analysis January 2008 ACCOMODATING RELIGION IN SCHOOL: DUTIES TO STUDENTS AND EMPLOYEES By: Robert A. Lusk and André F. Mayes, Clark Hill, PLC, Birmingham, Michigan he founders were indisputably brilliant on the subject of religion. They prohibited the government from establishing religion and, by doing so, guaranteed religious freedom. The resulting separation of church and state has contributed to our nation's religious diversity and, likely, to the sincerity with which its people hold their religious beliefs. While Americans prize both religious diversity and sincerity, these attributes of our national character inevitably come into conflict. T We see the conflict played out in our schools and reflected in newspaper articles and court decisions. Groups or individuals of one religion attempt to impose their ideas or make room for their practices. Other religious groups and individuals resist. School boards and administrators react with understandable, but unnecessary, rigidity or flexibility, and the aggrieved resort to the media and the courts. School attorneys, caught in the middle, write unpopular legal opinions and sometimes stake out questionable legal ground. The persistence of controversies involving schools and religion suggests human nature changes little over time, if at all. Thus, this short article is not likely to deter zealots or thicken skins. Its objective is far more modest: to set out the basic parameters1 of the duty of public schools to accommodate the religious beliefs of students and employees. The result, surprisingly enough, is a relatively coherent body of law in which school boards, school employees, and school attorneys may make legally viable decisions. Applicable Constitutional and Statutory Provisions The First Amendment is the fundamental statement of our civic religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." In the context of religious accommodation, Congress has supplemented the First Amendment with the Equal Access Act (EAA)2 and Title VII of the Civil Rights Act of 1964.3 The EAA prohibits most secondary schools from discriminating against students who wish to hold religious meetings during non-instructional time.4 Title VII prohibits employers from discrimi- nating on the basis of religion5 and, in addition, requires employers to accommodate employees' religious practices.6 Together, these laws, and the cases interpreting them, define the degree to which public schools must accommodate the religious beliefs and practices of students and employees. Accommodating Students' Religious Beliefs and Practices The basic rule is straightforward: public schools must accommodate students' religious beliefs and practices. Exceptions exist where accommodation would violate the Establishment Clause or where accommodation would cause a substantial disruption or materially interfere with the rights of others. In other words, public schools may not interfere with students' religious beliefs and practices. Conversely, students' religious beliefs and practices may not interfere with school or the religious beliefs and practices of others. These basic rules have been applied, fairly consistently, for almost fifty years. For example, in the absence of an exception, public schools may not prohibit students from wearing religious clothing and symbols.7 The same rule applies to assignments and other classroom activities. Schools may not prohibit students from expressing religious views in assignments. On the other hand, teachers are free to evaluate student assignments using ordinary academic standards.8 Moreover, the school's duty to accommodate a student's desire to interject religion into classroom assignments ends at the point the student has effectively turned the assignment into an opportunity to proselytize his or her classmates.9 Similarly, public schools must accommodate students' religious holidays.10 This obligation does not, however, require or prohibit schools from closing on religious holidays, provided closing is supported by a secular purpose, such as minimizing absenteeism.11 Likewise, schools are not prohibited from releasing students for religious indoctrination (release time), provided the indoctrination takes place off school premises.12 Well-established rules concerning school prayer are another example of religious accommodation. As educators know, and as frequently noted, "as long as there are exams, there will be prayer in schools." However, for over half a century, it has been the law that the state, through the school system, may not impose prayer on the unwilling.13 The persistence of prayer-related litigation, in light of these precedents, is a stark reminder of the wisdom of separating church and state. Further confirmation, if any is needed, of the noted general rule may be drawn from cases where parents unsuccessfully objected, on religious grounds, to teaching materials and lessons.14 Parents have even challenged a school mascot.15 The paradigm derived from these many situations and precedents may be tested by the recent influx of Muslim immigrants. Most Americans have little knowledge of Islam. What is known may be colored by political conflicts in the Middle East. Thus, we may fairly expect requests to accommodate Muslim students that seem unusual and exotic.16 In this respect, school boards and school administrators should be served well by lessons derived from the existing body of case law. For example, we may predict that requests to wear religiously prescribed clothing ordinarily should be granted. Similarly, requests for time or a place to pray during the school day ordinarily should be granted. Districts with large Muslim populations may choose to close on Muslim holy days to avoid high absenteeism. The general rule of accommodation should extend up to, but not past, the point that accommodation presents legitimate Establishment Clause issues or materially interferes or substantially disrupts school programs. We may expect the judiciary to strive to make room for Muslim immigrants to comfortably integrate into American society and culture, to the extent they wish. Certainly, an accommodating approach is consistent with our best traditions, as well as established precedent. Accommodating Employees' Religious Beliefs and Practices The duty to accommodate public school employees' religious beliefs and practices is not as generous. For example, school employees must be circumspect about expressing their religious views, particularly in the presence of students. The courts have little patience for school employees who attempt to promote their religious views to students, directly or indirectly.17 Numerous cases support the proposition a teacher may be discharged for proselytizing students.18 Taking the principle a step further, several cases support the proposition a district may prohibit a school employee from wearing religious attire in states with statutes on point.19 Inquiry & Analysis January 2008 has been on federal law; however, school boards and school lawyers should carefully research and consider the effect of state law on any particular set of facts and circumstances. In particular, attention should be paid to states that have enacted versions of the Religious Freedom Restoration Act.28 The Act, passed in response to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990), was held inapplicable to the states in City of Boerne v. Flores, 521 U.S. 507 (1997). Since then, several states have passed their own versions of the Act which, generally speaking, prohibit schools from imposing burdens on the practice of religion that are not supported by compelling governmental interests. These statutes, where they exist, tend to expand the extent of required religious accommodation.29 The law is more generous when employees are speaking among themselves. Clearly, school districts have no business prohibiting employeeto-employee communications on religious topics outside of the classroom.20 At the same time, the duty to accommodate religious belief does not extend to tolerating disruptive, overbearing, or coercive religious discussions, particularly by supervisors.21 Similarly, school districts are not required to open their facilities for voluntary religious activities by employees, at least in the absence of proof of viewpoint discrimination.22 Holiday leave requests have generated a number of reported cases. Again, the school district's duty to accommodate is minimal. The leading Supreme Court decision, Trans World Airlines v. Hardison, 432 U.S. 63 (1977), characterized the employer's duty as "de minimus."23 School districts are not required to hire substitutes to replace teachers who require a day off for religious observance.24 Time off for religious observance, if permitted, may be unpaid.25 On the other hand, it would not be permissible to allow paid leaves of absence for all purposes except religious purposes.26 In a similar vein, school districts are not required to modify essential job duties because employees find them objectionable on religious grounds.27 Conclusion This article has summarized the state of the law as it pertains to the duty of public schools to accommodate the religious beliefs and practices of students and staff. The focus Setting state law issues aside, it may be fairly said that different standards apply to accommodation requests by students and employees. Generally speaking, school districts are required to accommodate the religious beliefs and practices of students unless those beliefs and practices create legitimate Establishment Clause issues or substantially disrupt or interfere with education. The rule for employees is more limited. Naturally, schools, like other employers, may not discriminate on the basis of religion. However, when it comes to accommodating employees, schools' obligations are minimal. These divergent standards may be reconciled by considering the First Amendment's fundamental purpose: the separation of church and state. The state, and hence the schools, have no warrant to interfere with the religious practices of students who, by and large, are compelled to attend school by law. It would be ironic, indeed, if the government required school attendance and, then, imposed restrictions on the religious practices of those so compelled. School employees are not similarly situated. They have chosen to work for the government. Having done so, they are not in a position to force people and, most particularly their students, to work around their personal religious practices. We may expect religion to remain a hot button issue that, from time to time, results in litigation. Such friction is almost inevitable in a religiously diverse society where different, and sometimes conflicting, religious beliefs are sincerely held. This natural friction has been exacerbated in recent decades by politicians intent on using religion and religious values as campaign fodder. In the midst of the conflicts that will occasionally arise, we may take some measure of comfort in a relatively settled body of case law that provides a fairly clear paradigm for resolving novel factual issues as they arise. I&A |7 End Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 This article will focus on federal law, given the difficulty of attempting to catalogue state-by-state nuances. However, school boards and school attorneys faced with religious controversies and challenges must also consider the applicability of state law. 20 U.S.C. §§ 4071 et seq. 42 U.S.C. §§ 2000e et seq. 42 U.S.C. § 4071(a). 42 U.S.C. § 2000e-2. 42 U.S.C. § 2000j. See, e.g., Menora v. Illinois High School Association, 683 F.2d 1030 (7th Cir. 1982), cert. denied, 459 U.S. 1156 (1983) (enjoining athletic association rule prohibiting Jewish students from wearing head coverings where associations interest in student safety could be accomplished by other means); Alabama & Coushatta Tribes v. Trustees of the Big Sandy Independent School District, 817 F. Supp. 1319 (E.D. Tex. 1993), remanded, 20 F.3d 469 (5th Cir. 1994) (district preliminarily enjoined from enforcing hair length rule against tribe members for whom long hair was an expression of religious views); Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (S.D. Tex. 1997) (district enjoined from enforcing ban on rosaries worn outside clothing pursuant to rule prohibiting gang-related apparel); Nixon v. Northern Local School District Board of Education, 383 F. Supp. 2d 965 (S.D. Ohio 2005) (district enjoined from disciplining student who refused to remove a shirt, purchased at a religious camp, that denigrated homosexuality, Islam, and abortion); cf. Zamecnik v. Indian Prairie School District, No. 07-C-1586, 2007 WL 1141597 (N.D. Ill. Apr. 17, 2007) (denying motion for preliminary injunction to prohibit district from preventing student from wearing "Be Happy, Not Gay" t-shirt consistent with student's religious beliefs concerning homosexuality). See, e.g., Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995), cert. denied, 516 U.S. 989 (1995) (affirming dismissal of student's claim that teacher violated First Amendment by refusing to accept a research paper on the life of Jesus Christ where the topic was not consistent with the teacher's assignment); Peck v. Baldwinsville Central School District, 426 F.3d 617 (2d Cir. 2005), cert. denied, 547 U.S. 1097 (2006) (reversing, in part, and vacating district court's grant of summary judgment where evidence created a triable issue whether student's religiously-themed project was rejected based on impermissible viewpoint discrimination). See, e.g., Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), cert. denied, 520 U.S. 1156 (1997); Waltz v. Egg Harbor Township Board of Education, 342 F.3d 271 (3d Cir. 2003), cert. denied, 541 U.S. 936 (2004) (affirming summary judgment in district's favor where elementary student was prohibited from sharing holiday gifts with proselytizing religious message); DeNooyer v. Livonia Public Schools, 799 F. Supp. 744 (E.D. Mich. 1992), aff'd, 12 F.3d 211 (1993), cert. denied, 511 U.S. 1031 (1994) (dismissing claim of elementary student who wished to show a proselytizing videotape at show and tell assignment); Curry v. School District of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006); Morgan v. Plano Independent School District, No. 404CV447, 2007 WL 906453 (E.D. Tex. Mar. 22, 2007); Pounds v. Katy Independent School District, No. H-06-0527, 2007 WL 2787693 (S.D. Tex. Sept. 24, 2007). Church of God v. Amarillo Independent School District, 511 F. Supp. 613 (N.D. Tex. 1981), aff'd, 670 F.2d 46 (5th Cir. 1982) (striking down district policy of awarding zeros to students who missed school due to religious holidays). Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999) (permitting closing on Good Friday, provided stated purposes was not overtly religious); Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999), cert. denied, 528 U.S. 1118 (2000) (rejecting Establishment Clause challenge to statute providing for school closure around Easter weekend); cf. Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995) (striking down a law requiring school closing on Good Friday where state did not submit proof supporting its secular rationale that closing would save resources on a day most students would not be in attendance). Zorach v. Clauson, 343 U.S. 306 (1952). School District of Abington v. Schempp, 374 U.S. 203 (1963); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). See, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968) and Edwards v. Aguillard, 482 U.S. 578 (1987) for the general principle. Specific examples include, Fleischfresser v. Directors of School District 200, 15 F.3d 680 (7th Cir. 1994) and Brown v. Woodland Joint Unified School District, 27 F.3d 1373 (9th Cir 1994) (rejecting challenge to lessons and activities parents claimed promoted Wicca religion). Kunselman v. Western Reserve Local School District, 70 F.3d 931 (6th Cir. 1995) (rejecting challenge to the "Blue Devil"). Inquiry & Analysis January 2008 |8 Recognizing Council Members Nominations for COSA Board Service due January 9 NSBA’s Council of School Attorneys (COSA) thanks the following members for their contributions to NSBA and COSA. Holly Claghorn of the Texas Association of School Boards and Ken Childs of Childs and Halligan in Columbia, South Carolina for contributing articles about superintendent hiring in the November 2007 issue of Leadership Insider, the school law and policy newsletter for NSBA National Affiliate school districts. Click on the link under “Council Updates” on the home page of COSA’s website at www.nsba.org/cosa and download the nomination questionnaire. Leslie Stellman and Edmund O’Meally of Hodes, Pessin & Katz in Towson, Maryland wrote NSBA’s brief pro bono in Alexandria City Schools v. A.K., supporting the school district’s request to the U.S. Supreme Court to review a Fourth Circuit decision that found the district had failed to provide a student with a free appropriate public education because it had not named in the child’s Individualized Education Program a specific private day school at which the child would receive services. Completed questionnaires must be received by David Farmelo, Chair of the Nominating Committee by January 9, 2008. Happy Holidays From your colleagues at NSBA’s Office of General Counsel and Council of School Attorneys Back row (l to r): Tom Hutton, Lyndsay Andrews, Naomi Gittins, Lisa Soronen, Tom Burns, Lenora Johnson, Laura Baird, and Andrew Paulson. Front row: Francisco Negrón and Susan Butler. 16 17 18 19 See Lisa Soronen, The Next Wave of Religious Accommodation: Responding to Requests by Muslim Students INQUIRY & ANALYSIS (Feb. 2007). See, e.g., Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992) (principal did not violate teacher's First Amendment rights by requiring him to keep religious books out of sight in the classroom); Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995) (affirming dismissal of teacher who refused to teach evolution on religious grounds); Downing v. West Haven Board of Education, 162 F. Supp. 2d 19 (D. Conn. 2001) (district properly directed teacher to cover proselytizing t-shirt). See, e.g., La Rocca v. Board of Education, 406 N.Y.S.2d 348 (App. Div. 1978); Fink v. Board of Education, 442 A.2d 837 (Pa. Commw. Ct. 1982); Helland v. South Bend Community School Corporation, 93 F.3d 327 (7th Cir. 1996), cert. denied, 519 U.S. 1092 (1997) (affirming dismissal of substitute teacher for interjecting religious beliefs into classroom); Grossman v. South Shore Public School District, No. 06-4294, 2007 WL 3377167 (7th Cir. 2007). Cooper v. Eugene School District No. 4J, 723 P.2d 298 (Or. 1986), overruled on other grounds, Kellas v. Department of Corrections, 145 P.3d 139 (Or. 2006) (affirming termination of teacher, and revocation of teaching license, for wearing Sikh religious garb); 20 21 22 United States v. Board of Education for the School District of Philadelphia, 911 F.2d 882 (3d Cir. 1990) (district's refusal to accommodate substitute teacher's Muslim religious attire, prohibited by state statute, did not violate Title VII); McGlothin v. Jackson Municipal Separate School District, 829 F. Supp. 853 (S.D. Miss. 1992). Readers should note the possibility of contrary decisions in states with statutes that affirmatively permit religious garb and states without statutes on point. See, e.g., Rawlings v. Butler, 290 S.W.2d 801 (Ky. 1956) and Moore v. Board of Education, 212 N.E.2d 833 (Ohio 1965). See Tucker v. State of California Department of Education, 97 F.3d 1204 (9th Cir. 1996); see generally Texas State Teachers Association v. Garland Independent School District, 777 F.2d 1046 (5th Cir. 1985), rehearing denied, 784 F.2d 1113 (5th Cir. 1986), aff’d, 479 U.S. 801 (1986). See, e.g., Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997); EEOC v. Preferred Management Corp., 216 F. Supp. 2d 763 (S.D. Ind. 2002); Milwaukee Deputy Sheriffs Association v. Clarke, 513 F. Supp. 2d 1014 (E.D. Wis. 2007). May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105 (7th Cir. 1986) (district not required to permit teachers to use school facilities for prayer before school opens to students). Cf. Daugherty v. Vanguard Charter School Academy, 116 F. Supp. 2d 897 (W.D. 23 24 25 26 27 28 29 Mich. 2000) (public charter school not constitutionally required to prohibit teachers and parents from using school facilities for prayer outside of classroom). Id. at 84. Favero v. Huntsville Independent School District, 939 F. Supp. 1281 (S.D. Tex. 1996). Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986); Pinsker v. Joint School District No. 28J, 735 F.2d 388 (10th Cir. 1984) Ansonia, 479 U.S. at 71. Sedalia #200 School District v. Missouri Commission on Human Rights, 843 S.W.2d 928 (Mo. Ct. App. 1992) (interpreter who refused to translate "bad" words based on religious beliefs); cf. Sidelinger v. Harbor Creek School District, No. CIV 02-62 ERIE, 2006 WL 3455073 (W.D. Penn. Nov. 29, 2006) (holding asserted religious belief not "truly" held); see also Shelton v. University of Medicine & Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000) (nurse terminated for refusing to participate in abortions on religious grounds after refusing offered transfer). 42 U.S.C. §§ 2000bb, et seq. See, e.g., Ariz. Rev. Stat. §§ 41-1493 et seq; 51 Okl. Stat. §§ 253 et seq; S.C. Code Ann. §§ 1-32-10 et seq.