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: cosainfo@nsba.org
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
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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.