University of New Hampshire Education Department Wiki

Morrill Hall
Education Department Faculty and Staff

The University of New Hampshire Education Department
provides this wiki for the purpose of providing current information
on the debates surrounding educational reform and educational
practice. We will also provide policy briefs and research
by our faculty.

Below are some categories for current debates:

1. Creating Leaders through Global Citizenship & Local Community Engagement:

  • Policy Brief #13-01 Teaching Interns, Professionalism, and the challenges of Social Media

March 2013
Teaching Interns, Professionalism, and the Challenges of Social Media
Todd A. DeMitchellProfessor, Department of EducationLamberton Professor, Justice Studies Program
Thomas H. SchramAssociate Professor, Department of EducationDirector, Teacher Education Program

Who teaches matters. [1a]Susan Moore Johnson
The phone rang early one morning and an angry principal was on the line. A graduate education student was scheduled to “shadow” a professional educator that day but the principal called to inform the department chair that the graduate education student was declared persona non grata at the school. As the facts emerged, the student who was preparing to go to the school posted on a social media site that he/she was going to the school, naming the school, and stated, trying to inject levity in the post, that he/she hoped they would not be stuck with the dirty needles of the kindergarten students—an obvious allusion to alleged drug use at the school. A student at the school found the post, the child told her/his parent who called the superintendent, who then called the principal, who in turn called the department chair. This was a serious matter and the chair immediately contacted the student informing the student what had happened and that the student was required to report to the chair before going to any school as a student of the program. The future of the student hung in the balance with the upcoming meeting.

This real situation underscores the challenges that our education interns[1] face in an electronic, more closely connected, and online social world. It raises the issue of what responsibilities does the educational preparation program owe its students to properly instruct them on the challenges of balancing their private life and the requirements of being a public, professional educator, especially in the ubiquitous electronic environment that pervades our lives? This Policy Brief will discuss this challenge. The Brief is organized into four parts: first, what is the issue associated with social media and the preparation of educators; second, what is a professional; third, what does it mean to be an exemplar; and last, how do we respond as educational preparation programs to meet this challenge. This discussion of the intersection of law and the preparation of professional teachers is important as Perry Zirkel, a noted school law scholar, wrote with his co-author, “the professional literature neglects legal issues for student teachers[/interns].”[2]

I. The Challenge of Social Media

Social media or social networking “is a broad concept referring to the use of the Internet to furnish information that can be accessed by others.”[3] Terri Day writes, “Twenty-first century technology has transformed human relations.”[4] Teachers are not immune to the changes and challenges wrought by the technology created electronic communication and social media world.[5] One legal commentator notes that some school boards scrutiny of a teacher’s use of social media may implicate the United States Supreme Court finding in Bethel v. Fraser, a student free speech case, that teachers must teach “tolerance and the ‘fundamental values of habits and manners of civility.[6] For example, a Connecticut teacher’s contract was nonrenewed on the basis of his use of MySpace.[7] The teacher placed pictures of his students near the pictures of naked men, and his email communications with his students were characterized as crossing the line of professional association with his students.[8] Another teacher was fired for briefly watching pornography on the school’s computer, which was checked out to him.[9] And, a 26-year-old female teacher was dismissed for texting a 14-year-old male student that she wanted him to be her boyfriend and invited him to her apartment where the kissed and petted. Sexually suggestive text messages followed, though there was no further physical contact.[10]
If there are challenges to professional boundaries created by technology for teachers, there clearly are challenges to the boundaries of appropriate behavior on the part of interns who seek to become professionals. Consequently, as Mikulec argues, “it is important that pre-service teachers begin to think critically about their own personal use of Facebook, what they post, and what it means for them as they exchange student life for that of a professional.”[11] The freedom granted by social media interns enjoyed as undergraduates conflicts with the requirements of appropriate professional behavior. The privacy of their actions as undergraduate undergoes a different and heightened scrutiny as they become professional educators. “[W]hile teachers may argue that MySpace or Facebook comments are not intended for public view, the reality is that social networking sites are very much public domains, despite the tools to restrict access and protect privacy.”[12]
Examples of teacher interns who learned the hard way that to enjoy a private life, a teacher must endeavor to keep it private; and social media emphasizes the social and not the private aspects of one’s life. A twenty-five year-old secondary intern, Stacy Snyder, was barred from her internship site (twelfth grade English), failed her internship, and did not graduate with her B.S. in Education degree in secondary education with a teaching credential, however she did receive a B.A. in English.[13] The University requirements stipulated that interns are required to “‘maintain the same professional standards expected of the teaching employees of the cooperating school’ and to ‘fulfill as effectively as possible every role of the classroom teacher . . ..’”[14] The university supervisor discussed his concern at the mid-placement evaluation with Snyder with her classroom management in addition to problems with basic grammar, lesson preparation, and her understanding of the subject matter. The mid-placement evaluation also indicated, that although progress was “good” or “reasonable”, Snyder needed to work on “establishing “‘proper student-teacher boundaries.’”[15]

The teaching interns, at their orientation prior to starting their internship, were cautioned about referring to any students on their personal webpages. Contrary to the directive, Snyder communicated with her students about her MySpace webpage. She was warned by her cooperating teacher not to “discuss her MySpace account with the students and, urged the [Snyder] not to allow students to become involved in her personal life.”[16] At one point Snyder posted a picture of her herself wearing a pirate hat and holding a plastic cup “with a caption that read “‘drunken pirate.’”[17] In addition she posted a statement that was reasonably construed as being negative towards her cooperating teacher. Soon after the postings the University was notified that the school had concerns about Snyder’s professionalism and would not be allowed to return to her internship “‘under any circumstances.’”[18] She failed her internship.
The court upheld the decision of the university finding that it did not violate Snyder’s First Amendment rights.[19] Snyder was considered by the court to act more as a teacher and not as a student, thus she was held to the same standard as a teacher in which her speech via social media was analyzed as to whether it was a matter of public concern, which it was not. Therefore, her postings on social media were not protected speech.

University programs prepare individuals for service as a professional. The ethics in which universities infuse their preparation programs is important to the life of a profession. The working definition of a professional is dependent upon the preparation that its novices receive in their university preparation programs. As the First Circuit of Appeals asserted, a University’s practicum “closely resembles an employer-employee relationship” because the supervised student teaching activity reflects “the rudiments of a profession.”[20] How the professional is trained influences how she or he will practice.

II. Professionalism

Professionals hold a special place in our society. William J. Goode in his study of professions asserts that there are two generating qualities that define professions. They are “(1) a basic body of abstract knowledge, and (2) the ideal of service.”[21] He asserts that professionals fashion solutions based on the needs of the client, “not necessarily [on] the best material interest or needs of the professional himself.”[22] To be a professional means the professional must act in the best interests of the person receiving her/his services. Therefore, the predicate of a profession is the best interests of the client, not the needs, interests, and desires of the professional.

The further distinction between being professional and being a professional is instructive within the context of teaching and preparing teachers. As initially set forth by Goodson and Hargreaves in their study of teachers’ professional lives, being professional is about what one does, how one behaves.[23] It is about quality and character and the upholding of high standards of conduct and performance—for example, not getting too personally involved with children, or, in the issue at hand, not discussing a MySpace account with one’s students. Being a professional has more to do with “how other people regard you and how this affects the regard you have for yourself.”[24] This refers to questions such as the rigor of training and whether members of the profession have “collective autonomy over their own actions, and freedom from excessive outside scrutiny.”[25]

An exemplary standard of professionalism would encompass both dimensions—being professional and being a professional—joining status and autonomy with the trust and ability to make informed discretionary judgments. This points toward the need for an agreed-upon knowledge base and an understanding of professionalism as built around expert knowledge, usually gained through extensive education and training.[26]

In this regard, a profession is distinguished from an occupation. Professional work is complex and non-routine. It involves a standard of practice recognized and adhered to by the practitioners and a code of ethics supported by the profession.[27] Noted educational policy researcher Darling-Hammond writes, “Professionals are obligated to do whatever is best for the client, not what is easiest, most expedient, or even what the client himself or herself might want.”[28] Similarly, Goode asserted that one of the two core principles of professionalism is a “service orientation.”[29] The second pillar of professional is the acquisition of a specialized body of knowledge. Simply put, professionals exercise the standard of accepted practice acknowledged by the profession within the structure of a recognized code of ethics that is developed in the best interests of the client/patient/student. Professional practice is not exercised for the benefit of the practitioner; it is exercised for the benefit of the recipient of the service.

Consequently, how do we prepare our students to understand that the requirements of being a professional requires a shift from self interest to the interests of their students? All professions are dependent upon the post-secondary/graduate programs that prepare individuals for service in the profession. We carry an important responsibility to instruct our interns to understand, accept, and implement the requirements of the profession to act in the best interests of their students. Preparing interns for our profession involves more than acquiring technical competence; it is a casting aside of “self-serving status enhancement” and focusing on the development of “caring communities” that place the welfare and best interests of students at the center of service.[30] This, in part, requires that educator preparation program develop ways to assist students to find the proper balance between their private lives and their professional lives. The next section explores the intersection of the private and professional aspects of the intern’s life.

III. Exemplar: Teacher as a Mandatory Role Model

How private is a teacher’s private life away from school? Can a teacher’s private legal acts unrelated to teaching form the basis for discipline? An Illinois court in 1885 wrote about a teacher’s private life, “If suspicion of vice or immorality be once entertained against a teacher, his[/her] influence for good is gone. The parents become distrustful, the pupils contemptuous and the school discipline essential to success are at an end.”[31] Similarly, a half a century later the Pennsylvania Supreme Court asserted that teachers are deprived of the same freedom of action enjoyed by other members of the community because “[i]t has always been the recognized duty of the teacher to conduct himself in such a way as to command the respect and good will of the community . . ..”[32] Teachers have been held to the status of exemplar to which it is ascribed that they are and must act as mandatory role models. The United States Supreme Court summarized this position writing, “a teacher serves as a role model for [his/her] students, exerting a subtle but important influence over their values and perceptions.”[33] Yale Philosopher Robert George has argued, public institutions, including public schools, have a special responsibility to young people to protect the “moral ecology” of their communities from degradation.[34]

It is clear that teachers are held to the standard of exemplar, a mandatory role model for their students.[35] As an Illinois court stated: “We are aware of the special position occupied by a teacher in our society. As a consequence of that elevated stature, a teacher’s actions are subject to much greater scrutiny than that given to the activities of the average person.”[36] In other words, public school teachers are role models at all times--not just when they stand in a classroom in front of their students. But is this good law and reflective of our time of electronic connectedness where everyone is electronically close but, possibly, emotionally and physically distant?

The answer appears to be yes. For example, Frank Lampedusa, a tenured teacher, taught middle school (grades six through eight) literacy for five years before being promoted to Dean of Students. His principal characterized Lampedusa’s doing a “good job” and acting “professional.”[37] On June 22, 2008, a school district police dispatcher received an anonymous tip from a parent that Lampedusa had a listing on Craigslist section “men seeking men” titled “Horned up all weekend and need release.”[38] The section had disclaimers regarding age to enter (18 years old) and a notice that the site contained adult content. In order to enter the site the viewer had to click the disclaimer. The ad did not contain Lampedusa’s name or occupation. The ad had four pictures of Lampedusa: two pictures were of his face and upper torso, the third was of his anus, and the fourth was of his genitalia.[39]

A tip about the ad was relayed to the Area Three Superintendent of the San Diego Unified School District, Rich Cansdale, who met with Lampedusa at his school. Cansdale suggested that Lampedusa remove the listing. Lampedusa agreed and immediately left school to remove the listing and all known links to it. The ad had been up two days before it was discovered. Lampedusa had posted five or six previous ads on Craigslist soliciting sex.[40]

On July 17, 2008 Lampedusa was placed on paid administrative leave. He served during the initial tip to the administrative leave without incident. On November 10, 2008, he was served with a notice of suspension and with dismissal charges for evident unfitness for service and immoral conduct under the California Education Code.[41] The three-member panel of Commission on Professional Competence overturned his dismissal. The Commission found Lampedusa’s conduct of placing the ad as “vulgar and inappropriate and demonstrating a serious lapse of judgment.”[42] However, in spite of strongly condemning Lampedusa’s behavior, the Commission concluded that the school district had failed to establish a nexus between the placing the ad and his employment. In other words, the school district had not shown that his conduct resulted in harm to the school nor had it affected his ability to teach. Specifically, the Commission noted that “had any student, parent, or teacher viewed respondent’s ad, it surely would have washed over into his professional life and interfered with his ability to serve as a role model at school. However that simply never happened in this case.”[43] Thus, while acknowledging that Lampedusa was a mandatory role model, the Commission held that there school district did not establish a nexus, a connection, between Lampedusa’s online activity and a resulting harm to the education of the students of the school.

The school district appealed with the trail court adopting the finding and conclusion of the Commission. The school district appealed again. The Court of Appeals reversed the decision. Lampedusa’s conduct did “wash over into his professional life.”[44] The Appellate Court held that his ability to serve as a role model was compromised by the “pornographic nature of the ad” and by the impairment of his relationship with his principal established an adverse affect.[45]
Teachers, as exemplars, are held to a higher standard for the conduct of their private lives than the average citizen “because of their relationships to students. Their actions away from school are judged as if their conduct would set an example for how students should act.”[46] This points to the challenge of how we, as professors of education and cooperating teachers, tasked with preparing our interns to assume the role of teacher, address the challenge of balancing their social media world with the dictates of the profession to act as an exemplar as part of their ethical practice. Nidiffer’s advice for teachers may well be good advice for interns: “educators can avoid unwanted embarrassment and loss of employment by simply erring on the side of caution.”[47] If a teacher, or an intern, seeks to enjoy a private life she/he are well advised to keep it private or to keep it appropriate.

IV. Social Media and the Preparation of Teachers

As educator preparation programs confront the first Internet-raised generations of novice teachers, they must address the unintended consequences that heightened immediacy of access to information and social media outlets has brought to the educational arena. In particular, long-held distinctions between the worlds inside and outside of school are being redefined. This blurring of boundaries—and, in particular, the reconfigured contours of professional educators’ private lives—demands the “rethinking of professional education for teachers”[48] so as to incorporate ethical decision making into their practice. Warnick and Silverman note the distinctive characteristic of teaching, which “must focus specifically on the well-being of students” paying “attention to the moral dimensions particular to schooling.”[49] Professor of school law, Ann Hassepflug, advises, “Student teachers need to accept the workplace culture of their schools. They need also to consider how their conduct at their assigned schools as well as off-campus may impact their current success and future employment.”[50]
Because teachers have power over students and their students may emulate their actions, teachers have long been held to the status of exemplar. Given the ubiquity of social media, how can preparatory programs incorporate the inculcation of the ethics of the profession (the status exemplar) into the preparation and internship of its novitiates? We offer a few recommendations below as a beginning point.[51]

Reinforce Professional Requirements and Expectations

  • Distribute and discuss with preservice teachers the National Education Association (NEA) Code of Conduct[52] as a basis for their actions as interns as well as a basis for their actions once they become professional educators. Include the NEA Code of Conduct in the intern policy handbook. Mikulec writes, In order to be taken seriously as an authority figure, new teachers must make every effort to distinguish themselves as the adult in the room. To accomplish this, preservice teachers must have a clear definition of professionalism and the expectations that come with their job title.[53]
  • Be clear with interns that they are held to the status of exemplar even in their private life. Readings and discussions about what this means is a viable means of communicating their professional responsibility.[54] Make this part of your syllabus and add a policy statement to your intern policy handbook regarding their position as a role model. Invite principals and superintendents from area schools to preparation program classes and seminars to “drive this point home” to interns through real-life examples and actions they have taken in response to novice and experienced teachers’ missteps and mistakes relative to their professional responsibility (e.g., posting inappropriate, unprofessional content on their personal websites that may harm their effectiveness).

Intern Policy Handbook and Course Requirements
  • Provide any policies, procedures, or guidelines of the preparation program that concern personal behavior of the intern. This is especially important if violations of professional conduct can lead to dismissal from the program. The procedures—ideally outlined in a written “Field Placement Policy” developed with input from partnering schools—should be clear about the consequences for violation.
  • Prohibit interns from “friending” students and from joining student social media sites as “friends.” Professional distance must be maintained.

Coordinate with the Cooperating School District

  • Ensure that the school board policies of the cooperating school district regarding electronic communication and social media are distributed to the interns.
  • Establish clear expectations and lines of communication between the educator preparation program and the partnering schools to ensure that it is clear whose responsibility it is to distribute such policies.
  • Ask the principal or the cooperating teacher to discus how the policy is enforced at the school, ideally as part of teacher workshops and meetings that precede the start of the school year.

Education is a people intensive, critical public service. We must attract, prepare, and retain the best and the brightest to populate our classrooms. Society holds educators to a higher standard of behavior. We best serve our interns, the schools where they will work, and their communities by clearly articulating the professional responsibilities required for the profession. This includes responding to the challenges of establishing the boundaries of appropriate and inappropriate behavior for the next generation of teachers.


[1] For purposes of consistency and ease of reading, the term “intern” will be used to denote an education student, graduate or undergraduate, who spends an extended supervised period of time in a school as part of their professional preparation program.
[2] Perry A. Zirkel & Zora Karanxha, STUDENT TEACHINGAND THE LAW 1 (2009)
[3] Ralph D. Mawdsley & Allan Osborne, Teachers as Role Models: Limitations on Their Use of Social Networking, 276 Ed.Law Rep. 570 (2012).
[4] Terri Day, The New Digital Dating Behavior – Sexting: Teens’ Explicit Love Letters: Criminal Justice or Civil Liability, 33 Hastings Comm. & Ent. L.J. 69 (2010).
[5] See Charles J. Russo, Joan Squelch, & Sally Varnham, Teachers and Social Networking Sites: Think Before You Post, 5 PUBLIC SPACE: THE JOURNALOF LAWAND SOCIAL JUSTICE 1 (2010) asserting that social networking sites “have profoundly changed the way people, including teachers, communicate and interact” at 1.
[6] Patricia M. Nidiffer, Tinkering with Restrictions on Educator Speech: Can School Boards Restrict What Educators Say on Social Networking Sites? 36 U. DAYTON L. REV. 115, 117 (2010) (citing Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986).
[7] Spanierman v. Hughes, 576 F.Supp2d 292 (D. Conn. 2008).
[8] Id. at 312-13.
[9] Zellner v. Herrick, No. 10-2729, 2011 U.S. App. LEXIS 8891 (7th Cir. April 29, 2011).
[10] Doe v. St. Francis School Dist., 694 F.3d 869, 871 (7th Cir. 2012). The teacher was fired, prosecuted, and plead guilty to fourth-degree sexual assault, id. The student sued the school district under Title IX but lost, failing to demonstrate that the school district had actual notice of the misconduct and failed to reasonably investigate the allegation, at 871-2.
[11] Erin A. Mikulec, Professional Faces: Pre-service Secondary Teachers’ Awareness of Issues of Self-Disclosure on Social-networking Sites, 15 CURRENT ISSUESIN EDUC. 1 (Sept. 21, 2012).
[12] Russo, Squelch, & Varnham, supra note 6 at 11.
[13] Snyder v. Millersville University, 2008 WL 5093140 (E.D. Pa. 2008).
[14] Id. at *5.
[15] Id. at * 7.
[16] Id. at *9.
[17] Id. at *10.
[18] Id. at 11-12.
[19] Id. at 27.
[20] Hennessy v. City of Melrose, 194 F.3d 237, 245 (1st Cir. 1999). See, also
[21] William J. Goode, The Theoretical Limits of the Profession. In AMITAI ETZIONI (ed.), THE SEMI-PROFESSIONSAND THEIR ORGANIZATIONS: TEACHERS, NURSES, SOCIAL WORKERS 277 (1969).
[22] Id. at 278.
[24] Hargreaves & Fullan, id. at 80.
[25] Id.
[27] See, e.g., National Education Association available at; Association of American Educators available at; American Association of School Administrators available at
[28] Linda Darling-Hammond, Accountability for Professional Practice, 91 TEACHERS COLLEGE RECORD 59, 67 (1989).
[29] William J. Goode, Encroachment, Charlatanism, and the Emerging Profession: Psychology, Medicine, and Sociology, 25 AMER. SOC. REV. 902, 903 (1960).
[30] Andy Hargreaves & Igor Goodson, Teachers’ Professional Lives: Aspirations and Actualities, in IVOR F. GOODSON & ANDY HARGREAVES (eds.), TEACHERS’ PROFESSIONAL LIVES 1, 20 (1996).
[31] Tingley v. Vaughn (1885), 17 Ill. App. 347, 351.
[32] Horosko v. Sch. Dist. of Mount Pleasant Township, 6 A.2d 866, 868 (Pa. 1939).
[33] Ambach v. Norwick, 441 U.S. 68, 78 (1979).
[35] See, e.g., Mawdsley & Osborne, supra note 4 at 571(“[t]here are certain professions which impose upon persons attracted to them, responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policeman and schoolteachers fall into such a category[,]” citing Board of Trustees v. Stubblefield, 94 Cal. Rptr. 318, 321 (1974); Todd A. DeMitchell & Richard Fossey, THE LIMITSOF LAW-BASED SCHOOL REFORM: VAIN HOPESAND FALSE PROMISES 52 (1997) (“Traditionally, educators have been compelled to adhere more strictly to the community’s moral codes than most other professions or occupations. Teachers have been considered holders of a special position of trust and responsibility because of their relationship with the community’s children.”
[36] Chicago Board of Education v. Payne, 102 Ill. App. 3d 741, 748 (1981).
[37] San Diego Unified School District v. Commission on Professional Competence, 124 Cal.Rptr.3d 320, 323 (Cal.App. 4 Dist. 2011).
[38] Id.
[39] Id.
[40] Id. at 324.
[41] Id. at 323-4.
[42] Id. at 324.
[43] Id.
[44] Id. at 327
[45] Id.
[46] Todd A. DeMitchell, Richard Fossey, Suzanne Eckes, Sexual Orientation and the Public School Teacher, 19 B. U. PUBLIC INTEREST L.J. 65 (2010).
[47] Nidiffer, supra note 7 at 142.
[48] Bryan R. Warnick & Sarah K. Silverman, A Framework for Professional Ethics Courses in Teacher Education, 62 J. TEACHER EDUC. 273, 274 ((2011).
[49] Id. at 283.
[50] Ann Hassenpflug, Student Teachers and First Amendment Speech, 243 Ed.Law Rep. 1, 10 (2009).
[51] Mawdsley & Osborne, supra note 4 provide an excellent list of recommendations for school districts regarding social media. Their recommendations for school districts informed the selection of our recommendations.
[52] See supra, note 28 for other codes of ethics.
[53] Supra note 12 at 10.
[54] The New Hampshire State Department of Education identified “Professional Responsibility” as a foundation for effective teaching “Effective teachers: Uphold professional and ethical standards.” NEW HAMPSHIRE DEPARTMENTOF EDUCATION, NEW HAMPSHIRE TASK FORCEON EFFECTIVE TEACHING: PHASE 1 REPORT 8 (2011). Available at

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2. Learning, Literacies & Culture:

  • Policy Brief # 12-01 HB 542 and Parental Control: "Shredding" the Public School Curriculum

    On January 4, 2012, the New Hampshire House of Representatives on a vote of 255-112 and the Senate on a vote of 17-5 were successful in overriding Governor John Lynch’s (D) veto of HB 5423 . This veto override took effect immediately and (a) allows parents to file an objection to any course material, (b) requires a school district to devise an alternative acceptable to the parent, and (c) the alternative must enable the child to still meet state requirements for education in the particular subject area of the objection.

    Below is a Policy Brief by Professors Todd DeMitchell and Joseph Onosko analyzing the legislation. It offers a legal and policy critique as well a providing some recommendations for implementing the new law. We hope that this policy brief is helpful in the discussion about the implementation and response to the law. The policy brief only reflects the views of Professors Todd Demitchell and Joe Onosko.

    Administration & Supervision Program
    Department of Education
    University of New Hampshire

    Policy Brief #12-01
    January 2012

    HB 542 and Parental Control: “Shredding” the Public School

    Todd A. DeMitchell
    Professor of Education Law & Policy, Department of Education
    Lamberton Professor, Justice Studies Program
    University of New Hampshire

    Joseph Onosko
    Associate Professor of Social Studies Education
    Director of Field Experiences
    University of New Hampshire

    HB 542 and Parental Control: “Shredding” the Public School

    If we are to eliminate everything that is objectionable to any [person] or is
    inconsistent with any of their doctrines, we will leave the public schools in shreds.
    Nothing but educational confusion and a discrediting of the public school system can
    result from subjecting it to constant law suits.”

    McCollum v. Board of Education (Jackson, J., concurring)2

    (United States Supreme Court)

    On January 4, 2012, the New Hampshire House of Representatives on a vote of 255-112 and the Senate on a vote of 17-5 were successful in overriding Governor John Lynch’s (D) veto of HB 5423 (full text of the bill is appended below). This veto override took effect immediately and (a) allows parents to file an objection to any course material, (b) requires a school district to devise an alternative acceptable to the parent, and (c) the alternative must enable the child to still meet state requirements for education in the particular subject area of the objection.

    The parental objection to course materials can be based on religious, philosophical, pedagogical or other reasons (or, possibly, no reasons at all) since there is no definition as to what constitutes the basis for an objection. In other words, the objection does not have to be grounded in a deeply held belief or the unique developmental needs of the child: any objection will do and, possibly without having to justify it. In addition, the legislation does not specify how any disagreement between the parent and the school is to be resolved. Similarly, there is no specification as to what curriculum or what instructional practice is to be used with the child between the time of the objection and the time at which the parent and school reach agreement. There is no provision informing districts what to do during the agreement process; are students to be removed from the curriculum and associated instruction or is the teacher to continue to deliver the community’s agreed upon curriculum? Furthermore, can other parents object to the alternative plan if it has any impact on their child, thus perpetuating a cycle of objections following objections? The legislation further requires parents to pay for the costs of the alternative educational experience. And finally, parents are shielded from any public disclosure of their names.

    We believe that Governor Lynch got it right
    4 in vetoing state Representative J.R. Hoell’s (R-Dunbarton) HB 542 and that the House of Representatives and the Senate got it terribly wrong.

    This policy brief is organized into three sections. First, it will explore the tension between parents’ requirements for the education of their child and the need for public schools to provide an education for all student-citizens in the school district.

    Representative Hoell wrote in a blog for
    NH Parents First, “A parent’s right to control the education of his/her child is guaranteed by the Constitution and the NH Republican Party platform as well.”5 This section will analyze Representative Hoell’s claim about the parents’ right to direct the education of their children, the asserted legal underpinning for HB 542. Second, the challenges of implementing this legislation are explored. Third, we will close with additional thoughts on why the Governor’s veto should have been
    sustained and we will offer suggestions to the hundreds of New Hampshire schools now scrambling to develop policies that satisfy all of the mandates of HB 542.

    “While parents may have a fundamental right to decide whether to send their child
    to a public school, they do not have a fundamental right generally to direct how a
    public school teaches their child.”

    Derry v. Marion Community Schools6

    (Federal District Court)

    I. The Conflict Between Parents and Public Schools: Curriculum on Demand

    Educating youth is of prime importance to both parents and the state. There is a tension between the parental right to make decisions about their child’s life and the public school’s responsibility to serve the interests of all the children and the community at large. For the state, education is perhaps its most important function.7 Given this tension it is of no surprise that our nation’s state and federal courts have offered clarification.

    A federal district court in New York summed the tension in the following way, “our nation has enjoyed a long history of encouraging families to take responsibility for the instruction of their own children, while at the same time, making school attendance compulsory and granting control of the curriculum to state and local officials.”
    8 Parents’ interests represent the private benefit of education and the state’s interests represent the public good of education. Both have legitimate spheres of influence over the education of a child: education confers both a private benefit and it is a public good. How have the courts balanced these sometimes-competing interests?

    Pierce v. Society of Sisters9 is the case most often cited by advocates for expanding the right of parents to compel the public school to educate their child in the manner they believe is best. In Pierce, the United States Supreme Court struck down the Compulsory Education Act of 1922, which required all of Oregon’s children to only attend public schools starting in 1926. The referendum campaign was organized and
    promoted primarily by the Ku Klux Klan and the Oregon Scottish Rite Masons.
    10 The strategy was to “Americanize” the schools in response to a wave of immigration. One Klansman succinctly stated the underlying rationale for the referendum: “Somehow these mongrel hordes must be Americanized; failing that, deportation is the only remedy.”11 The referendum narrowly carried. Thus, private education in Oregon would cease to exist as an alternative for parents with the implementation of the referendum.

    The High Court acknowledged the broad authority of the state to reasonably “regulate all schools”.
    12 Although the Supreme Court afforded the state extensive teaching powers in the role of educator, that right to educate youth is not without limits. Writing for the Supreme Court, Justice McReynolds enunciated an often quoted statement: “The child is not the mere creature of the State; those who nurture him and
    direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
    13 The Supreme Court found that the Compulsory Education Act of 1922 “unreasonably interferes with the liberty of parents and guardians to direct the upbringing of their children under their control,”14 however the Court did not hold that the parental right prevails over the power of the state to establish and direct its public schools. The issue in Pierce had nothing to do with parental rights to modify or direct the public school curriculum, rather the issue was whether Oregon could take away the right of parents to choose between educating their children in a private school or in a public school. The Supreme Court ruled that parents could choose between educating their children in private or public schools.

    The Supreme Court did not give parents the right or authority to control the curriculum that their child would receive in a public school, nor did it allow parents to decide not to educate their child. In short, compulsory education and the authority to determine the curriculum were clearly left to the state. The United States Supreme Court merely resolved the issue of whether it is reasonable for the state to compel a student to only attend a public school. The High Court found that parents have the liberty to choose whether to educate their child at a public school or a private school--such as ones maintained by the Society of Sisters and the Hill Military Academy (the plaintiffs). The decision did not exempt parents from reasonable regulations that communities might develop for the public schools.

    The position that parents have no constitutional right to dictate the curriculum in public schools has been supported by court decisions in New Hampshire, the First Circuit Court of Appeals, and in state and federal courts throughout the nation.
    15 For example, in Davis v. Page16 the federal district court for New Hampshire resolved a case arising in the Jaffrey-Rindge School District holding that the plaintiff parents could not compel the school to excuse their children from participating in lessons in which audio-visual aids were used in the instruction even though the parents objected to their use on religious grounds. The parents also wanted their children exempted from participating in music and health classes. The District Court stated that the State has an interest in maintaining and sustaining a coherent curriculum and that the “responsibility for the adoption of the school curriculum is statutorily vested in the School Board.”17 Parents can voice objections to their school board but final decisions about the curriculum and related instructional strategies reside with the school board, the court held. “Despite parental objections, courts have been unwilling to make patchwork exceptions to the School Board's curriculum.”18

    The ability of parents to direct the upbringing of their children by controlling the public school curriculum and related instruction was addressed in a First Circuit Court of Appeals decision. Because of the doctrine of stare decisis New Hampshire is bound by decisions made by the First Circuit Court of Appeals. The case involved parents’ allegation that their right to direct the upbringing of their child was abridged because the school mandated attendance at a school-wide AIDS awareness program. The court
    concluded in the section on parental rights:

    If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents as described in Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.19

    In other words, parents do not have a constitutionally based right to direct the elements of the curriculum and related instructional activities to suit their individual needs, desires, or interests.

    The foregoing analysis demonstrates that the courts have consistently ruled that the power to determine the curriculum of the public school rests with the community’s elected school board. Parents who bring lawsuits to the courts claiming they have the right to dictate the content of the curriculum and/or the instruction typically lose. Representative Hoell’s assertion that parents have a constitutional right to control the curriculum of the public school for the benefit of their child is not supported by the weight of court decisions. The parental right and duty discussed in
    Pierce is not an expansive right; it is restricted to the choice of where to have their child educated and is not a right to dictate what shall be taught and in what manner it will be taught. This does not leave parents out of the equation. They can and should work with the educators in their public schools. They just cannot dictate the outcome of the collaboration.

    “To allow students and parents to pick and choose which courses they want to attend would create a stratified school structure, where division and derision would flourish.”

    Davis v. Page20

    (Federal District Court)


    Beyond the major legal obstacle discussed above, implementation of HB 542 is another problematic hurdle. While the statute may appeal to the value of choice21 in education, the devil is in the details of how to make it work. Until the law is struck down by the courts (or amended by the New Hampshire Legislature), New Hampshire schools must implement HB 542 immediately and face the challenges of its mandates.

    The following short discussion raises some additional concerns about whether HB 542 is a sound public policy or is just “good” politics. Is it clear or is it vague? Is it workable in schools with hundreds of parents who now can demand an alternative to any or all parts of the curriculum, resource materials, and the lessons their children receive on a daily basis? Does it comport with existing laws and court cases? (For example, a parent cannot compel a school to violate the Establishment Clause by insisting on an alternative that would have a religious purpose, have an effect of advancing or inhibiting religion, or excessively entangle religion in school practices.

    Questions about the implementation of HB 542 are divided into four parts; the objection, the resolution, the cost, and parental anonymity. This not an exhaustive analysis of the problems associated with HB 542, rather it is a formative attempt to respond to its requirements.

    1. The Objection—“specific course material based on a parent’s or legal guardian’s
    determination that the material is objectionable.”

    • • The reach of a parental objection is without limit in this legislation. In a response to a Huffington Post query, Representative Hoell, the author of HB 542, stated,

    the new law could allow parents to address both moral and academic objections to parts of the curriculum. The lawmaker said he could imagine the provision being utilized by parents who disagree with the "whole language" approach to reading education or the Everyday Math program.

    "What if a school chooses to use whole language and the parent likes phonics, which is a better long-term way to teach kids to read?" Hoell said to HuffPost.

    Governor Lynch in his veto message writes, “This legislation in essence gives every individual parent of every student in a classroom a veto over every single lesson plan developed by a teacher.”24 Speaking to the general proposition of parental control over the curriculum and echoing Governor Lynch, Davis noted in the Harvard Journal of Law & Public Policy, “Were parental rights to dominate school interests, public
    education would become untenable, as each parent would effectively hold veto power over the school’s curriculum
    .25 HB 542 is unworkable and the Governor’s veto should have been sustained.

    • • How does a teacher or a school provide an alternative to a whole language approach to reading instruction? How many different approaches must a teacher provide in a class of 25 students? How can a teacher possibly organize and teach multiple and, at times, conflicting approaches to reading instruction? With every new objection that results in an alternative plan, the school’s curriculum becomes increasingly balkanized, contradictory and undeliverable.

    • • Can a school be compelled to not teach evolution in a science class to a student and instead be required to teach creationism or intelligent design to that student--not all students, just the child of the objecting parent--because her/his parents object to evolution as nothing more than a theory and want alternative views taught to their child?26 Is the child of the objecting parent to leave the classroom when other students learn about evolution? Where will the student go and who provides supervision? Or, are teachers to include faith-based theories in science classes even though the courts have consistently struck down such actions as violating the Establishment Clause?27 This last example reveals a double-bind for our New Hampshire schools; they can violate HB 542 by refusing a parent’s request to alter or eliminate the teaching evolution or they can violate a long history of federal court rulings that prohibit the teaching of creationism and intelligent design in public school science classes. Remarkably, the new law provides no guidance for school boards and school officials.

    2. The Resolution—“a provision requiring an alternative agreed upon by the school
    district and the parent.”

    • Does instruction for the student whose parents file an objection stop immediately upon receipt of the written objection? What happens to the student at the time the objection is filed; must he or she leave the classroom until an alternative can be agreed upon as mentioned above? These are important questions that HB 542 does not address, instead allowing each incident to be approached in an ad hoc manner by all of the school districts in New Hampshire.

    • There is no specified timeline for finding an alternative. There is no provision, such as due process in special education, for a timely resolution. The search for a mutually agreeable alternative could be without time limit for resolution leaving all in limbo. While the rest of the class receives partial or whole units on the objectionable material, is the child of the objecting parent to be left behind? Clearly, the legislation
    cannot stand for the proposition that a parent of one child can place a hold on the education of all students whose parents do not object to the materials. Since there is no administrative remedy stated or contemplated in the statute, parents can presumably head straight to court to enforce their “alternative” if they feel thwarted by the school. This would add costs to the school district and would clog the courts.
    28 In addition, courts typically are loath to intervene in educational decisions centering on what instruction or what curriculum is best.29

    • The school board has the statutory authority and responsibility to adopt the curriculum for the school district and all of its students. This authority has been ceded to parents who object and demand that their alternative be implemented. This statute transforms the legitimate authority of the school board from a requirement to a suggestion for parents to accept or reject. How does HB 542 comport with current state
    law, which reads, II. Elected school boards shall be responsible for establishing the structure, accountability, advocacy, and delivery of instruction in each school operated and governed in its district. To accomplish this end, and to support flexibility in implementing diverse educational approaches, school boards shall establish, in each school operated and governed in its district, instructional policies that
    establish instructional goals based upon available information about the knowledge and skills pupils will need in the future.

    HB 542 contradicts and effectively eviscerates this long-standing legal responsibility of elected school boards.

    3. The Expense of the Alternative—“a provision requiring an alternative agreed upon by the school district and the parent, at the parent’s expense, sufficient to enable the child to meet state requirements for education in the particular subject area.”

    • • What can the school district charge the parents for the requested curriculum revisions? Despite the language of the new law, the answer appears to be “nothing” given current New Hampshire law which reads,

    I. It shall be the duty of the school board to provide, at district expense, elementary and secondary education to all pupils who reside in the district until such time as the pupil has acquired a high school diploma or has reached age 21, whichever occurs first; provided, that the board may exclude specific pupils for gross misconduct or for neglect or refusal to conform to the reasonable rules of the school, and further provided that this section shall not apply to pupils who have been exempted from school attendance in accordance with RSA 193:5.31

    • • If a school district bills the objecting parents does the invoice violate the right of parents to receive a free education for their children as required in the above statute? If yes, another potential cause of action arising from this legislation is created.
    • • Conversely, if the alternative demanded by parents ends up costing the school district extra money (because of the right to receive a free education), is the community being forced to fund a parent’s personal wishes for their child’s education? 31 RSA 189:1-a(I) Duty to Provide Education

    4. Anonymity—“The name of the parent or legal guardian and any specific reasons disclosed to school officials for the objection to the material shall not be public information and shall be excluded from access under RSA 91-A.

    • • This part of the law shields parents from public scrutiny and recrimination.

    When applied in other contexts, this mandate may well facilitate parents’ willingness to discuss curriculum concerns with school officials.

    Parents simply do not have a constitutional right to control each and every aspect of their children’s educatin and oust the state’s authority over that subject.”

    Swanson by and through Swanson, v. Guthrie Independent School District No. 1-L32

    (Federal Court of Appeals)


    The override of the Governor’s veto made HB 542 effective immediately (as of January 1, 2012). School districts must develop policies right away. There is no run-up period that allows superintendents and their boards to develop a thoughtful and reasonable policy. The right of the parent or legal guardian to an alternative plan is in place now and can be accessed immediately. We offer two suggestions below as school boards work with educators to develop the required policy.

    First, citizens, educators, parent groups, school boards, and school administrators should work together to challenge the law in court as well as lobbying the legislature to amend the law in ways that address the multiple legal and practical problems raised by this policy.

    Second, and most immediate, a policy must be drafted and implemented. We recommend the following:

    1. Involve teachers and principals when formulating the district’s policy, as they are the ones who will have to make it work.

    2. Adopt the position that any change to the curriculum/materials/lessons is a district change and, therefore, requires district involvement. Why? Because in spite of the provision for the objecting parent to pay for the alternative, it is entirely possible that the courts will find that there is a superseding right to a free education and therefore any alternative would involve a cost to the district. Second, the curriculum is a district responsibility. Consequently, it should retain authority over changes to it precipitated by state law; cohesiveness, alignment, and consistency in the instructional program must be maintained in spite of HB 542.

    3. We recommend that the implicated teacher(s), the principal, and a district office administrator be part of the team that meets with the parents.

    4. The written form for objections must require parents/guardians to clearly state what materials are objectionable and what alternative is requested. While an inquiry into the reasons for the objection are not required in the law, it is reasonable and prudent to have the parent be specific as to what is their objection.
    A generalized dissatisfaction does not facilitate the search for an acceptable alternative. A requirement to state a suggested alternative may help the district find a suitable resolution.

    5. Notes from the meetings should be part of the record. Any resolution must be reduced to writing and signed by all parties. Because the objection impacts the education of the student a copy of the objection and the alternative educational experience must be placed in the student’s cumulative file and a copy retained in the appropriate administrators’ files (site and district).

    6. The alternative must be grounded in what is necessary for “the child to meet state requirements for education in the particular subject area.” Focusing on this HB 542 requirement can provide an educational basis for denying alternatives that are patently dismissed by the scholarly and educational community. This requirement cannot be compromised even though it may result in an impasse. Surely the law does not require educators to seek an alternative for an unreasonable objection.

    We believe that this law is wrong and that it has great potential for mischief, if not bgreat harm.34 Parental input is vital to keeping the public in our public schools. Parents must be active participants in their child’s education, but that participation cannot turn the public school into a private tutor for hundreds of parents. Their concerns must be carefully listened to and considered, however, sometimes the school must say no to a parent’s request. HB 542 cannot legislate away the fact that there will be tension between what parents want and what the school community believes is in the best interests of the students and the community. It is necessary that parents speak for their children, it is also imperative and necessary that the school speaks for all children and the public that supports the school. Shredding the curriculum and its
    resulting confusion in response to every objection is not in the best interests of students nor of the community. New Hampshire’s support for local control of its public schools should not give way to individual control of our schools. HB 542 is the wrong answer for meaningful parental involvement in the public schools of New Hampshire.

    1The views expressed in this policy brief are solely those of the authors and do not necessarily reflect the views of the Administration & Supervision Program, the Department of Education, or the University of New Hampshire.

    2333 U.S. 203, 235 (1948).

    3The legislative history of HB 542 is available at

    4Press Release, Governor Lynch’s Veto Message Regarding HB 542, OFFICE OF THE GOVERNOR (July 13, 2011) (writing “I am vetoing this legislation because it does not clearly define what material would be objectionable; it would be disruptive to classrooms and other students; and it would be difficult for school districts to administer.) Id. at 1.
    Available at

    5Rep. J R Hoell (Dunbarton), HB 542 Ends Discrimination in Public Schools, NH PARENTS FIRST (Wednesday, Apr. 13, 2011).

    6790 F.Supp.2d 839, 850 (N.D. Ind. 2008).

    7See Brown v. Board of Education, 347 U.S. 484, 491 (1954) (“Today, education is perhaps the most important function of state and local governments . . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.”).

    8Immediato by Immediato v. Rye Neck School District, 873 F.Supp. 846, 849 (S.D.N.Y. 1995).

    9 268 U.S. 510 (1925).


    11 Id. at 13.

    12 Pierce, 268 U.S. at 534.

    13 Id. at 535.

    14 Id. at 534-5.

    15 See, e.g., Swanson v. Guthrie Independent School District, No. I-L, 942 F.Supp. 511, 515 (W.D. Okl. 1996) (“Plaintiffs right to direct Annie’s education is not absolute, nothing in the Constitution, federal or state, grants [parents] the right to control public education on an individual basis.”); Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir. 2005) (“While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to
    how a public school teaches their child.”) (emphasis in original); Leebaert v. Harrington, 332 F.3d 134, 142 (2d Cir. 2003) (The right of parents to control the upbringing and education of one’s child does not include “the right to tell the public schools what to teach or what not to teach him or her.”); Byars v. City of Waterbury, 795 A.2d 630, 645 (Conn. Super. 2001) (writing parents have never been entitled to “suspend all rules imposed by social institutions if those rules are at odds with the parents’ preferences.”).

    16 385 F.Supp. 395 (D.N.H. 1974).

    17 Id. at 405.

    18 Id.

    19 Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 534 (1st Cir. 1995) (citations omitted) cert. denied, 516 U.S. 1159 (1996).

    20 Davis, 385 F.Supp. at 405.

    21 For a discussion of the educational policy values of choice, excellence, equity, efficiency, and security, see Todd A. DeMitchell & Casey D. Cobb, Policy Responses to Violence in Our Schools: An Exploration of Security as a Fundamental Value, 2003 BYU EDUC and L. J. 459 (2003).

    22 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

    23 John Celock, New Hampshire Lawmakers Pass Law Allowing Parental Objections to Curriculum HUFFINGTON POST (Jan. 4, 2012) available at

    24 Lynch, supra note 4.

    25 Eliott, Davis, Unjustly Usurping the Parental Right: Fields v. Palmdale School District, 27 F.3d 1197 (9th Cir. 2005), 29 HAR. J. L. PUB. POL’CY 1133 (2006).

    26 See Kitzmiller v. Dover Area Sch. Dist., 400 F.Supp. 2d 707 (M.D. Pa. 2005) which held that a school district’s required disclaimer in a high school biology class that evolution is only one of several scientific theories was found to violate the Establishment Clause. The disclaimer included a statement about Intelligent Design as a viable and competing scientific theory. HB 1148, currently under consideration in the NH House will likely suffer the same fate as the Kitzmiller decision if it becomes law. HB 1148 is
    available at

    27 See, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968); Edwards v. Aguilar, 482 U.S. 578 (1987); McLean v. Arkansas Brd. of Educ., 529 F. Supp. 1255 (E.D. Ark. 1982).

    28 See Monteiro v. The Tempe Union High Sch. Dist., 158 F.3d 1022, 1030 (9th Cir. 1998) stating The number of potential lawsuits that could arise from the highly varied educational curricula throughout the nation might well be unlimited and unpredictable. Many school districts would undoubtedly prefer to “steer far” from any controversial book and instead substitute “safe” ones in order to reduce the possibility of civil liability and the expense and time-consuming burdens of a lawsuit—even one having but a slight chance of success.

    29 “The second [consideration] is the broad discretion afforded school boards to establish curricula they believe appropriate to the educational needs of their students.” Id. at 1026 Also, see, KERN ALEXANDER & M. DAVID ALEXANDER, AMERICAN PUBLIC SCHOOL LAW (5th Ed.), 277 (2001) (writing “[m]ost precedents indicate that the courts though sympathetic with the intentions of the parent, generally defer to authorized and trained educational experts on matters of school policy.”)

    30 RSA 189:1-a(I) Duty to Education

    31 RSA 189:1-a(I) Duty to Education

    30 135 F. 3d 694, 699 (10th Cir. 1998).

    33 For example, parents might request instruction sympathetic to Holocaust deniers, Birther claims about President Obama, herbal cancer cures, numerology assertions, again because there is no definition of what qualifies as a material objection nor is there even a requirement for reasonableness of the objection. What are professional educators to do in these situations? And how will their intellectual integrity, self-respect as an educator, and commitment to the profession be sustained under these conditions?

    34 HB 542 appears to be part of a series of recent Republican bills designed to weaken public education. For example, see HB 1148 seeks to interfere with the teaching of evolution as well as the stalking horse HB 1457 “an act relative to scientific inquiry in the public schools.” For a critique of recent bills visit

    15Mar2011… 0726h

    06/01/11 2251s

    22June2011… 2422CofC

    2011 SESSION



    AN ACT relative to exceptions for objectionable material in public school courses.

    SPONSORS: Rep. Hoell, Merr 13

    COMMITTEE: Education


    This bill requires school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable.
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    Explanation: Matter added to current law appears in
    bold italics.

    Matter removed from current law appears [in brackets and struck through.]

    Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

    15Mar2011… 0726h

    06/01/11 2251s

    22June2011… 2422CofC




    In the Year of Our Lord Two Thousand Eleven

    AN ACT relative to exceptions for objectionable material in public school courses.

    Be it Enacted by the Senate and House of Representatives in General Court convened:

    1 New Paragraph; State Board of Education; Duties. Amend RSA 186:11 by inserting
    after paragraph IX-b the following new paragraph:

    IX-c. Require school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable. Such policy shall include a provision requiring the parent or legal guardian to notify the school principal or designee in writing of the specific material to which they object and a provision requiring an alternative agreed upon by the school district and the parent, at the parent’s expense, sufficient to enable the child to meet state requirements for education in the particular subject area. The name of the parent or legal guardian and any specific reasons disclosed to school officials for the objection to the material shall not be public information and shall be excluded from access under RSA 91-A.

    2 Effective Date. This act shall take effect January 1, 2012.



    Amended 06/22/11


    AN ACT relative to exceptions for objectionable material in public school courses.


    ◦ The Department of Education states this bill, as amended by the Senate (Amendment #2011-2251s), will have no fiscal impact on state, county, or local revenues or expenditures.


    The Department states that this bill will have no fiscal impact. The bill requires school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable. School districts may utilize the model policy of the New Hampshire School Boards Association in dealing with parental objection to instructional material, which can be modified at no cost to accommodate the requirements of the bill as amended.

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  • With Blocks, Educators Go back to Basics—New York Times

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3. Responsive Pedagogues to Transform Learning:

  • in Texas, Keeping Kids in School and Out of Court - NPR

  • Why can't kids search? 10 tips to develop better search skills—NovaNews

  • Five Big Changes to the Future of Teacher Education—Mind/Shift

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4. Collaborative Leadership & Policy Studies:

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Policy Brief #11-03 The Deliberate Indifference to the Sexual Abuse of Students

By Todd DeMitchell, Professor - UNH Education Department and Lamberton Professor - Justice Studies Program

Watch the video (below) of Professor DeMitchell delivering this Policy Brief to his EDUC 967 School Law
class at the University of New Hampshire. The pdf file of this policy brief is also available for download

Administration & Supervision Program
Department of Education
University of New Hampshire

Policy Brief #11-03
December 2011

Title IX's Deliberate Indifference Standard and the Sexual Abuse of Students: A Trust Betrayed

Todd A. DeMitchell
Professor, Department of Education
Lamberton Professor, Justice Studies Program
University of New Hampshire

Title IX's Deliberate Indifference Standard and the Sexual Abuse of Students: A Trust Betrayed[1

The worst sin towards our fellow creatures is not to hate them, but to be indifferent to them; that is the essence of inhumanity.

George Bernard Shaw, The Devil’s Disciple

Our discussion is set against a backdrop of the Penn State scandal involving the sexual abuse of children by those to whom they have given their trust only to be violated.[2While what happened at Penn State is probably not a Title IX case, the ethics of Title IX are brought to mind. Did the Penn State coaches and administrators act with deliberate indifference to the abuse of a child, or to phrase it differently, did they act vigorously to make a difference? This Policy Brief explores the standard of protection afforded to students under Title IX for their sexual abuse perpetrated by an educator and offers a few suggestions for what educators can do to protect the trust that has been given to them. We will begin by putting a human face on the issue.


Jane Doe was 14 years old. She had a reputation as a good student. Jane Doe also played soccer for her high school where Jeremy Green was an assistant coach. A couple of months into the school year Jane told her health teacher that Green made her feel uncomfortable because of the way he looked at her and his question about whether she had a boy friend who could be his competition. In addition, Green called her at home.[3

The teacher reported the conversation to the principal who called Jane Doe into his office to discuss the concern. Jane admitted that Green had called her at home and had paged the numbers “69” into her beeper. In addition, Green told Jane that he had had a relationship with a former student. She further told the principal that Green had proposed a bet, which would require her to kiss him if she lost the bet.

At a meeting with Green, the principal and the assistant principal, Green admitted to behaving inappropriately. Green was told to remain professional with Jane Doe and the other students and to not talk about his private life. Green acknowledged the directive.

Soon after, Jane Doe’s parents complained to the principal following an incident in which Green invited Jane Doe to get a soft drink. Once in his car he brushed his hand against her bare knee and thigh. A memo was developed defining the appropriate boundaries for relationships with students. No reprimand was given, no attempts to monitor Green’s behavior toward Doe on campus were formulated, and no follow-up was initiated with Jane Doe. Neither the principal nor the assistant principal “referred the matter to officials, child and family services, or any police or sheriff’s department.”[4 Up to this point Jane Doe, confiding to her head soccer coach that she still considered Green to be a friend even though she acknowledged that she felt that Green was pursing her sexually and that she was afraid that Green would “make her do something that she did not want to do.”[5

In December, at a potluck held off campus at the head soccer coach’s home Green and Doe kissed for the first time. They started meeting before school, after school, between classes, and Green would have the campus monitor pull Doe out of class where they would meet behind Green’s closed and locked classroom door. Once behind the locked door, Green and Doe would kiss and fondle.[6 Doealso started sneaking out of her house at night to meet Green. Soon their relationship turned from kissing and fondling to a sexual relationship.

In February, the campus monitor reported to the school authorities that Green and Doe were having sex. The police were called. In May, Green pled guilty to sexual seduction and to open and gross lewdness. Green was order by the court to have no contact with Jane Doe. However, Doe and Green continued their relationship for two months until the police caught them together in Green’s car. Green was sent to jail[7 and Jane Doe brought suit against the school district under Title IX.

The federal District Court of Nevada on the defendants’ Motion for Summary Judgment found that a reasonable jury could conclude that Doe’s teachers and her father’s reports are “sufficient to establish acts of harassment of which school officials had actual notice.”[8 Similarly,Judge Hicks held that the reasonable jury could find that the school officials acted with deliberate indifference to the notice of harassment/abuse.[9 Consequently,the defendants’ Motion for Summary Judgment dismissing the Title IX claim was denied. Jane Doe would have her day in court.

Jane Doe’s experience is not the norm for student-teacher relations. The great majority of our educators keep their trust with their students. Education is one of the great helping professions. “It is founded on a trust given by society and parents that the well being of children will be primary and the best interests of students shall be served by the actions of those in the profession.”[10 However,that trust is too often broken and we cannot allow that to stand.


Reform efforts that target student test scores, value-added modeling for teacher effectiveness and provide for merit pay but do not make the classroom a more secure place for children make a false promise of improvement. Efforts that focus on improving the workplace for adults but neglect student safety and well-being offer a vain hope of improving our schools in any meaningful way.[11 Asafe school for children is not a desired goal it is a mandatory condition forlearning.[12

In 2007, the Associate Press conducted a seven-month investigation into allegations of sexual abuse of students perpetrated by educators.[13 Overa five-year period (2001-2005) across the fifty states, they found 1,440 cases in which students suffered abuse at the hands of educators.[14 Thereport found that the abusers were “often popular and recognized for their excellence and, in nearly nine of 10 cases, they’re male.”[15The report summed their findings writing, “[s]tudents in America’s schools are groped. They’re raped. They’re pursued, seduced, and they think they’re inlove.”[16


Congress passed Title IX as part of the Education Amendments of 1972. It was enacted after extensive hearings by the House Special Subcommittee on Education in 1970 revealed pervasive discrimination against women with respect to educational opportunities.[17Title IX seeks to avoid the use of federal funds to support discriminatory practices; it seeks to “rid educational institutions of sexdiscrimination.”[18 Second, “it wanted to provide individual citizens effective protection against those [discriminatory] practices.”[19 TheSupreme Court held that Title IX contains an implied, enforceable private right of action.[20The law provides that “[n]o person in the United states shall, on the basis of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activities receiving Federal financial assistance.”[21Thus, the law applies to virtually every school district and college in the United States because of the pervasiveness of federal support.

Prior to 1992, there had been few court cases involving sexual harassment of students under Title IX. However, the landscape of Title IX changed in 1992. In the seminal Title IX case, Franklin v. Gwinnett County Public Schools, the Supreme Court clarified the range of damages available under Title IX. In this case a female student sued a Georgia school district for sexual harassment. According to the student, the teacher had;

engaged her in sexually-oriented conversation. . . forcibly kissed her on the mouth in the school parking lot . . .
telephoned at home and asked if she would meet him socially . . . and . . . on three occasions . . . interrupted a
class, requested that the teacher excuse [her] and took her to a private office where he subjected her to coercive intercourse.[22

The Supreme Court argued that Title IX placed on the Gwinnett County Schools a duty not to discriminate on the basis of sex and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex that supervisor discriminates on the basis of sex.”[23Following this line of reasoning, in a strongly worded statement about the protection of Title IX in our schools, the Justices, in which there was no dissenting opinions, stated: “We believe the same rule should apply when a teacher sexually harasses and abuses a student.”[24A federal district court in Texas captured this position writing, “Without question, one of the core objectives of Title IX is to provide relief to young girls sexually abused by their male teachers receiving federal funds.”[25While the authorizing language of the Title IX statute did not specifically grant that money damages were an available remedy, the High Court concluded that a monetary damage award was possible underTitle IX.[26

The Gwinnett case was followed six years later when the Supreme Court handed down the ruling in Gebser v. Lago Vista Independent School District on June 22, 1998.[27The facts of Gebser are surprisingly close to the facts discussed above in Jane Doe; a female student was pursued by an educator who had groomed her for seduction and abuse. The educator used the power of his position to gain and then betray the trust of the student. The Court in a five to four decision held: “damages may not be recovered for teacher-student sexual harassment in an implied private action under Title IX unless a school district official who, at a minimum, has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’smisconduct”.[28

The Court concluded that the express remedial scheme under Title IX is predicated upon notice to an “appropriate person.” An appropriate person, the Court defined, was one who “has authority to address the alleged discrimination and to institute corrective action on the recipient’s behalf.”[29In addition, after an appropriate school official has received actual knowledge of the sexual abuse, the response to the complaint must amount to deliberate indifference in order for the plaintiff student to prevail. In other words, the school official after receiving notice of the abuse “refuses to take action to bring the recipient into compliance” is, therefore, deliberatelyindifferent.[30

The twin triggers of protection of actual knowledge and deliberate indifference are high standards to meet as the dissent noted writing, “the Court ranks protection of the school district's purse above the protection of immature high school students.”[31Similarly, the Eighth Circuit Court of Appeals in Schrum v. Kluck characterized deliberate indifference as a “stringent standard of fault.”[32


In a study of federal court of appeals decisions related to the sexual abuse of student perpetrated by educators, the authors found that school districts won the cases at an overwhelming level.[33Of the 28 reported cases, school districts won 24 of the cases. The stereotypical case from this research of sexual abuse by a school employee generally involves a male high-school teacher or coach who has an exploitive sexual relationship with a female high school student. However, of the 28 cases reviewed, only 14 involved male educators and female students. Ten involved allegations of sexual misconduct by a male teacher against male students.[34In three cases, plaintiffs alleged that a female educator sexually harassed or abused a female student, and one case involved a male student and a female teacher. In other words, 13 cases involved allegations of same-sex abuse, while 15 cases dealt with allegations of heterosexual abuse. Three of the four cases in which the student prevailed the sex of the student was female and her perpetrator was male. The one same sex case was male and male.

Most cases concerned allegations of abuse in a high school (17), while seven cases were set in elementary schools, and three cases involved charges of sexual misconduct in a middle school or junior high school. Of the four cases in which the student plaintiff prevailed, three occurred in high schools and one occurred in an elementary school.

Research literature has determined that teachers in coaching positions, band directors, and other teachers in extracurricular activities figure prominently in sexual abuse cases against students. Their findings are in harmony with the literature. Nine of the cases involved educators in coaching, band director, music teacher, or other extracurricular job. Nevertheless, a majority of the cases dealt with sexual abuse allegations by classroom teachers.

The cases reflect the challenge that administrators face when investigating allegations of sexual abuse. Generally both the perpetrator and the victim conspire separately to keep the truth out of the investigation. For example, in Sauls v. Pierce County School District the administration interviewed both the teacher and the student several times, discussed the allegations of potential sexual abuse with the police, continually monitored the teacher, contacted the parents of the alleged victim, and warned the teacher about appropriate behavior with her students.[35 Even after a substitute teacher found a note from the male student admitting the relationship and extorting $100, the return of his cell phone, and sex at a specific time, the teacher continued to deny the sexual abuse.[36The court found that the appropriate officials did not act with deliberate indifference once receiving actual notice of the abuse.

What can we do so as to act deliberately to make a difference?

1. Abusive educators often ‘groom” their students by treating them in a special manner: starting slowly and building their trust and increasing their attachment and vulnerability. Signs of grooming may include inordinate amounts of attention being paid to a student, sexual comments and innuendos directed at students, pulling the student from classes for private meetings, giving gifts, inappropriate touching (sitting on the teacher’s lap, hugging, stroking, etc.). Not all individual acts that may constitute grooming in the aggregate are grooming acts. However,
• We must look for the pattern of behavior and be willing to ask the
educator about his/herbehavior.[37
• We must engage our faculty about defining, establishing, and
enforcing professional boundaries.
• Consider adding a professional relations with students section to your
faculty handbook.
2. Both the student and the educator are motivated by a desire to keep their sexual relationship a secret. Therefore, they are often not honest or forthcoming in interviews. For example in Baynard v. Malone[38the abused student did not finally come forward until the student had graduated and gone on to college that he brought a Title IX suit.

School officials cannot just rely on the bald statement that nothing is going on. As seen in the Sauls case above the school authorities did not just wrap up their investigation at the first insistence that nothing was going on. They kept monitoring the situation. This did not happen in the Jane Doe case. However, the school administration in Frye v, Board of Education of County of Ohio responded appropriately once officials received notice of abuse.[39The school district investigated the allegations, met with the district’s counsel, removed the student from the classroom, and placed the teacher on a behavior modification program.[40A thorough investigation protects the student from further abuse and it protects the educator from wrongful accusations.

3. Too often a school is more concerned with the reputation of the school than the abuse of a student. The “blind eye” approach to reports of suspected sexual abuse by educators is sometimes the first response. These schools fail the question of “whom do we protect, the student or the school?” For example in Gonzalez v. Yselta Independent School District[41a school district instead of reporting a teacher’s suspected child abuse merely moved the teacher to another school or in Daly v. Derrick[42 in which the faculty of an alternative school negotiated with three female students who were sexually abused by one of their teachers at the school to move the teacher in exchange for the students’ silence on the sexual abuse. The educators considered the school more important than their students. In the long run, as the Penn State scandal is demonstrating, the institution is best protected by a thorough and prompt investigation. It is hard to reclaim a damaged reputation.

It bears stating that even when a school official has acted appropriately in response to notice of alleged abuse, the standard is not that the abuse has been stopped; as with negligence, we do not insure the safety of students.[43For example the Fifth Circuit Court of Appeals held that a principal investigated and erroneously concluded that the student was lying about the abuse.[44The principal did not respond with deliberate indifference to the notice “Officials may avoid liability under a deliberate indifference standard by responding reasonably to a risk of harm, ‘even if the harm ultimately was not averted.’"[45

Children must not be treated with indifference by the adults in their lives. This should be an uncontested truth. There is an “immense trust placed in school employees to keep students safe and to maintain an environment and relationship conducive to learning.”[46A loathsome of act of an educator is to act with indifference to the welfare of a student when harm is deliberately visited upon the student through sexual abuse—the educator could have acted but chose not to. Laws, rules, and regulations are necessary but they are not sufficient. Creating a school culture that protects students first is critical. Communicating and enforcing clear, unambiguous statements about maintaining a professional relationship with students is necessary. Preventing harm and responding to early signs such as grooming is a challenge we must meet. Our goal must be zero indifference to our students, and zero tolerance for the sexual abuse of our students.

[1]The term “ A Trust of Betrayed” is borrowed from the title of a three-part Series Special Report published by EDUCATION WEEK (Dec. 2, 1998, Dec. 9, 1998, Dec. 16, 1998) that explores when educators cross the line of professionalism and sexual abuse their students.
[2]See, e.g., Bill Chappell, Penn State Abuse Scandal: A Guide and Timeline, NPR (Nov. 17, 2011) available at; Huffington Post, Penn State Scandal (Nov. 19, 2011) available at
[3]Jane Doe A. v. Green, 298 F.Supp. 2d 1025 (D. Nev. 2004).
[4]Id. at 1029.
[5]//Id//. at 1028-9.
[6]Id. at 1030.
[7]Green was sentenced to a maximum of sixty months to a minimum of 24 months. Id.
[8]Id. at 1034.
[9]Id. at 1036.
[10]Todd A. DeMitchell, The Duty to Protect: Blackstone’s Doctrine of In Loco Parentis: A Lens for Viewing the Sexual Abuse of Students, 2002 B.Y.U. EDUC. AND L. J. 17, 49 (2002).
[11]TODD A. DEMITCHELL & RICHARD FOSSEY, THE LIMITSOF LAW-BASED SCHOOL REFORM: VAIN HOPESAND FALSE PROMISES 100-104 (1997). See, also Todd A. DeMitchell, Student to Student Sexual Harassment and Title IX: A Conflict in the Federal Courts, 5 INT’L. J. OF EDUC. REFORM 496, 504 (1996) (“No student should have to run a gauntlet of abuse in order to attend school. . . . If we do not value our students and their well-being at school, nothing else is of sustainable value in our schools.”).
[12]See Cary Silverman, School Violence: Is It Time to Hold School Districts Liable for Inadequate Safety Measures? 145 Ed. Law Rep. 535, 553 (2000) (“The public expects schools to provide a safe haven that takes the place of parents during school hours, protect their children, and provide their children with a proper learning environment.”).
[13]Martha Irvine & Robert Tanner, Sex Abuse a Shadow Over U.S. Schools, EDUC. WEEK (Oct. 21, 2007) For other studies of the sexual abuse of students, see U.S. Department of Education, Office of the Under Secretary (prepared by Charol Shakeshaft), EDUCATOR SEXUAL MISCONDUCT: A SYNTHESISOF EXISTING LITERATURE (2004); American Association of University Women, HOSTILE HALLWAYS (2001).
[15]Id. However, the sexual abuse of students is not just perpetrated by male teachers. A number of high profile female teacher sexual abuse cases were reported on early in the last decade. For example, the following are high profile cases involving female teachers, sexually abusing their students: Stacy Shuler (Kevin Dolak, Ohio Gym Teacher Jailed for Sex With Students, GOOD MORNING AMERICA (Oct. 28, 2011); Pamela Turner (Colin Fly, Teacher’s Image Shattered by Teen Sex Allegations, HERALD SUNDAY (Portsmouth, NH) C2 (Feb, 13, 2005); Debra Lafave (Mitch Stacy, Teacher Pleads Guilty in Student Sex Case, THE BOSTON GLOBE A19 (Nov. 23. 2005); and Mary Kay Letourneau (Erin Van Bronkhorst, Teacher: Baby Born of Love for Pupil, 13, THE BOSTON GLOBE A12 (Aug. 15, 1997));. See, also Joe Stennis, Jr., Equal Protection Dilemma: Why Male Adolescent Students Need Federal Protection from Adult Female Teachers who Prey on Them, 35 J. L. & EDUC. 395 (2006).
[17]118 CONG. REC. 5804 (1972) (remarks by Sen. Bayh). According to Senator Bayh, Title IX’s sponsor, the statute was intended to:
provide for the women of America something that is rightfully theirs--an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work
[19]Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
[20]Id. at 709.
[21]20 U.S.C. §1681(a) (2000).
[22]Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 63 (1992).
[23]Id. at 75.
[25]Leija v. Canutillo Indep. Sch. Dist., 887 F.Supp. 947, 951-52 (W.D. Tex. 1995).
[26]This holding was consistent with a prior decision in Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) which upheld the theory that Title IX, in addition to being enforceable through administrative regulations, is also enforceable through an implied private right of action.
[27]524 U.S. 274(1998).
[28]//Id//. at 277.
[29]//Id//. at 290.
[31]Gebser, 524 U.S. at 306 (Stevens, Souter, Ginsburg, & Breyer, JJ., dissenting).
[32]249 F.3d 773, 780 (8th Cir. 2001).
[33]Richard Fossey & Todd A. DeMitchell, Title IX’s ‘Deliberate Indifference’ Standard for Determining School Liability Under Title IX When Students Are Sexually Abused by School Employees: How Effective Is it in Encouraging Vigilance by School Officials? Education Law Association, Chicago, Illinois November 2011.
[34]The Supreme Court has found same-sex harassment claims actionable under Title VII. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).
[35]399 F.3d 1279, 1282-83.
[36]//Id.// at 1284.
[37]In J.M. v Hilldale Indep. Sch. Dist. No 1-29, 397 Fed. Appx. 445 (10th Cir. 2010) the Tenth Circuit Court of Appeals upheld the judgment for a student stating, evidence showed that student reported to assistant principal that instructor was in hotel room with student behind a closed door and that assistant principal reported this to principal. No investigation was undertaken. Such a lack of response, a reasonable jury could conclude, “was not reasonable.” At 24-5.
[38]268 F.3d 228 (4th Cir. 2001).
[39]1999 U.S. App. LEXIS 759 (4th Cir. 1999)
[40]Id. at *5
[41]996 F.2d 745 (5th Cir. 1993).
[42]230 Cal. App. 3d 1349 (1991).
[44]Doe v. Dallas Indep. Sch. Dist. 220 F.3d 380 (5th Cir. 2000).
[45]Id. at 384.
[46]//Jane Doe A. v. Green//, 298 F.Supp. 2d at 1038 (asserting that engaging in sexual relations with students is an “extreme” violation of this trust.). Id.

Professor Todd DeMitchell delivers his Policy Brief 11-03 to his EDUC 967 class at the University of New Hampshire.

A Trust Betrayed from Barbara Locke on Vimeo.

Professor Todd DeMitchell delivers his Policy Brief 11-03 "Deliberate Indifference to the Sexual Abuse of Students" to his EDUC 967 School Law class at the University of New Hampshire.

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Policy Brief #12-02 Amending the New Hampshire Constitution (CACR 12): Education Will No Longer Be Fundamental To The Citizens Of New Hampshire

By: Todd A. DeMitchell, Ed.D. - Professor, Department of Education and Lamberton Professor, Justice Studies Program, University of New Hampshire

Joseph Onosko, Ph.D. - Associate Professor of Social Studies Education, Director of Field Experiences, University of New Hampshire
Mark Paige, J.D., Ph.D. - Assistant Professor, School of Education, Public Policy, and Civic Engagement and Adjunct Professor, School of Law, University of Massachusetts-Dartmouth
Administration & Supervision ProgramDepartment of EducationUniversity of New Hampshire

Policy Brief #12-02March 2012

This Policy Brief asserts that the Concurrent Resolution Proposing Constitutional Amendment relating to education (CACR 12)[1] is inimical to the educational interests of the citizens of New Hampshire. The proposed constitutional amendment would remove education as a fundamental right and reduce education to a legitimate interest of the state, similar to most activities undertaken by government. Walking back the constitutional importance of education in order to overturn the Claremont decisions ill serves the interests of the State and the needs of its citizens.

I. Claremont I & II
In December of 1993, the New Hampshire Supreme Court handed down its decision in Claremont School District v. Governor[2] declaring the system of funding public education to be unconstitutional. The Supreme Court held that the New Hampshire Constitution (New Hampshire Constitution, Part II, Article 83 (1784) see appendix for text) imposes a duty on the State to “provide a constitutionally adequate education to every educable child in the public school in New Hampshire and to guarantee adequate funding.”[3] The Court continued, “The right to an adequate education mandated by the constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State’s duty.”[4] The Supreme Court remanded the case, expressing confidence in the Governor and the legislature to fulfill their constitutional obligation to define an adequate education and to appropriately fund that adequate public education[5] “essential to the preservation of a free government.”[6] Governor Merrill, perhaps expressing less confidence in the judiciary, warned in his State of the State address that the Claremont decision “threatens to shake the social and economic foundations of this state.”[7]

By 1997, the Claremont case had worked its way back to the New Hampshire Supreme Court.[8] The trial court on remand found the education provided by the plaintiff school districts to be adequate and that the New Hampshire system—one dependent upon locally assessed property taxes—does not violate the New Hampshire Constitution.[9] The Supreme Court in Claremont II reversed the lower court’s decision, with only Justice Horton dissenting,[10] holding that the property tax levied to support public education was “a State tax and as such is disproportionate and unreasonable in violation of part II, article 5 of the New Hampshire Constitution.”[11] Essentially, the court ruled that the State has the responsibility for providing elementary and secondary education, which it places on the school districts as a local function. Therefore, the school districts must raise money through the collection of real estate taxes to pay for the schools. The Court gave the legislature and the Governor until the end of 1998 to find a remedy to expeditiously “fulfill the State’s duty to provide a constitutionally adequate public education and to guarantee adequate funding in a manner that does not violate the State Constitution.”[12]

The Supreme Court held, “[e]ducation is a duty of the New Hampshire state government “expressly created by the State’s highest governing document, the State Constitution.”[13] Furthermore, the Supreme Court asserted that public education is not only different from other governmental services, its role is critical “in developing and maintaining a citizenry capable of furthering the economic, political, and social viability of the State.”[14]

This strong statement about the importance of public education echoes the position of the United States Supreme Court in the landmark case Brown v. Board of Education.[15] The High Court wrote:

Today, education is perhaps the most important function of state and local
governments . . . . In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he [or she] is denied the opportunity of an
education. Such an opportunity, where the state has undertaken to provide it,
is a right, which must be made available to all on equal terms.[16]

Similarly, the United States Supreme Court in Plyler v. Doe asserted, “We have recognized the public schools as a most vital civic institution for the preservation of a democratic system of government and as the primary vehicle for transmitting the values on which our society rests.”[17] The New Hampshire Supreme Court’s position on public education and the responsibility of state government to provide for that education squares with the United States Supreme Court pronouncements.

In short, our nation’s highest court and the New Hampshire Supreme Court view education as critically important in providing equality of opportunity for individual economic and social advancement and to preserve the very foundations of our democratic institutions.[18] Because of the importance of education to its citizens and our democratic way of life, the New Hampshire Supreme Court declared education to be a “fundamental right.”[19] This decision is critical because any action taken by government that diminishes a fundamental right of its citizens must be reviewed by the judiciary using a “strict scrutiny” analysis, the most stringent test for government action under the Equal Protection Clause.

The New Hampshire Supreme Court in Claremont I and II held that the children of our state have a constitutional entitlement to receive an adequate education guaranteed by adequate funding, and that the constitutionally protected right to an adequate education is fundamental requiring the most exacting judicial review of governmental actions that may abridge that right.[20] However, before we briefly review education as a fundamental right of citizens, we will briefly look at the response to the Claremont decisions that led to the current proposed constitutional amendment.

II. Response to School Finance Litigation
The Claremont cases are part of a body of cases in which the plaintiff claims that the state legislature has violated the state’s constitutional duty pertaining to financially support public education. Because every state has a state constitutional provision providing for the establishment of a public school system,[21] school finance litigation has the potential to be a nationwide legal issue.[22] Constitutional issues of school finance have “evolved over time, issues of equity in funding, have given way to increased attention to funding adequacy and, more recently, accountability.”[23]

Judicial review of school finance litigation raises a question of whether a state legislature has met its constitutional duty to provide for and support public education.[24] Serrano v. Priest ushered in the modern era of school finance reform litigation and changed the way California funds public education.[25] Since Serrano, forty of the 50 states joined California with school finance litigation challenging their funding structure for public education.[26] Some states such as New Jersey, California, North Carolina, Connecticut, Tennessee, and New Hampshire have had multiple cases brought challenging their state’s school finance system.

A victory for the plaintiffs in school finance cases typically compels the legislature to take some action to remedy the constitutional injury. This is how the separation of powers is supposed to work: a system of checks and balances designed to serve the people and preserve liberty, and is an essential structure of our system of government. Consequently, responses to school finance reform litigation are to be expected, but the importance of maintaining the proper checks and balances between the branches of government is imperative.[27]

Opponents to the Court’s Claremont II ruling cast the judiciary as the branch that needed to be checked and its power balanced. Then Senator and former New Hampshire Governor, Judd Gregg, in his response to Claremont II (1997) stated, “for a court to usurp the legislative prerogative is to flirt with the threat of despotism that led to the Boston Tea Party and a call for independence that began our nation.”[28] Richard Lessner, in an editorial in the state’s influential newspaper, The Union Leader, characterized the Claremont II decision as the “tyranny” of “[t]his monstrous regiment of Judges!”: “Americans—Granite Staters—you no longer live in a free country. You are ruled by monarchs in black robes, arrogant Hapsburgs elected by no one and answerable to no one.”[29]

Two themes emerged from the opponents’ responses to the court’s decision: 1) the New Hampshire Supreme Court violated the traditional separation of powers and 2) the public should adopt a constitutional amendment to sidestep the court’s decision. The implication is that that the judges did not have the authority to find the present system of funding unconstitutional because it called for a tax remedy. The unstated argument was that this is what the people wanted as embodied through legislative action. Lessner, in The Union Leader’s editorial, stated, “What the Legislature can and should do is refer this to the people of New Hampshire in the form of a constitutional question.”[30] The remedy, in other words, was to change the Constitution, not to meet the requirements of the Constitution.
III. Constitutional Amendments
The call for a constitutional amendment to undo the Claremont decisions was first heeded by State Senator Jim Rubens in early 1998.[31] His amendment would have made education a local responsibility instead of a state responsibility. The amendment failed to win legislative approval to take to the voters. Legislative responses to judicial decisions seeking to amend the constitution are rare and not very successful. For example, after Brown v. Board of Education, Alabama in 1956, sought to derail the desegregation decision by passing a constitutional amendment arguing that the will of the people must prevail; however, the constitutional amendment was declared unconstitutional.[32] Similarly, Kansas proposed constitutional amendments limiting the authority of courts in school funding cases[33] and Missouri introduced a bill in its state senate during a school funding challenge that prohibited future judicial intervention in school funding disputes.[34] To date, these legislative restraints on judicial authority have failed.

Unfortunately, in New Hampshire the legislative response to the Claremont decisions seeks to follow the same path of not correcting the constitutional problem, but rather change the constitution to meet the preferred outcome. The latest constitutional amendment once again seeks to rewrite the relationship between the state and its citizens by altering its responsibilities for providing and financing public education. The amendment, as of March 16, 2012, appears below.

Be it Resolved by the House of Representatives, the Senate concurring, that the
Constitution of New Hampshire be amended as follows:
I. That the second part of the constitution be amended by inserting after article 5-b the following new article:
[Art.] 5-c [Public Education.] In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have full power and authority and the responsibility to define reasonable standards for elementary and secondary public education, to establish reasonable standards of accountability, and to mitigate local disparities in educational opportunity and fiscal capacity. Further, the legislature shall have full power and authority to determine the amount of, and the method of raising and distributing, state funding for public education.

This amendment does two things. First, it removes education as a fundamental right of its citizens by the insertion of the word “reasonable.” This reduces the quality of the right to an education moving it from a fundamental right, such as voting, to a legitimate right, such as driving. This diminishment of the right to an education—the real target of this amendment—will limit future court deliberations on state education funding issues to the lesser “rational basis” legal test rather than “strict scrutiny analysis.” This would not remove the courts from considering whether government has violated a right, but it greatly increases the chances of the state prevailing in the suit.[35] Second, it applies the requirement for the State to fund education to only those students where disparity in educational opportunity and fiscal capacity exist. Under this amendment, the state discharges its responsibility to educate all of its youth only through targeted aid to some.

From Strict Scrutiny Analysis to Rational Basis: Tipping the Scales toward Legislative Power

The amendment removes education as a fundamental right. Proponents crafted this language to make it easier for the state to win Claremont style lawsuits. Because the Supreme Court concluded in the Claremont decisions that education is a fundamental right, the court used strict scrutiny analysis to review the actions of the State..[36] This is a stringent test protecting any right that is fundamental for its citizens. To pass this test the State must show that its objective is compelling and the means used to achieve the objective are necessary. This test sets a high bar for government. However, CACR 12 sets a very low bar by (a) reducing the value of education to only a “legitimate” state objective, and, concomitantly, (b) reducing the level of scrutiny the courts apply to state actions regarding education.

This test is called rational basis and is the most permissive or lenient test that the courts apply to the constitutionality of state laws. Unlike strict scrutiny analysis, rational basis places the burden of proof of establishing unreasonableness on the plaintiff who is challenging the state’s action. It is the most deferential test to government requiring only a minimum level of judicial analysis. Under strict scrutiny the governmental objective must be compelling and its actions must be necessary to achieve the objective, whereas rational basis only requires that the objective be legitimate (not compelling) and the means to achieve it are rational (rather than necessary). Which of the two tests is used is important to the outcome of the litigation. Clearly, the sponsors of the amendment want to reduce the level of judicial scrutiny of their school funding legislation.

An example of a court’s use of rational basis is found in a 1982 challenge to New York’s system of funding public education. The challenge failed because the 1894 New York constitution only required that the state provide a “sound basic education.”[37] New York’s highest court used the rational basis test because education was only considered to be a legitimate and not a fundamental right of its citizens. However, the dissent argued that education was fundamental to the future of the State and its citizens. Justice Fuchsberg argued, “without education there is no exit from the ghetto, no solution to unemployment, no cutting down on crime.”[38] It is the “great equalizer.”[39]

In Claremont the New Hampshire Supreme Court found that the State’s constitution, which dates back to 1784, confers upon its citizens a fundamental right to receive an education and a concomitant responsibility upon the state to provide that education. CACR 12 seeks to rescind that fundamental right established 228 years ago. CACR 12 takes decisive and definitive action to eliminate education as a fundamental interest of the citizens of New Hampshire.Diminishing the importance of education is particularly troubling given education is fundamental to a person’s prospects for success. The values that we profess shape the actions that we take. If education is not constitutionally fundamental, it becomes no more important than deciding where to place a traffic light or what requirements are necessary to get a fishing license. Our longstanding commitment to equality of educational opportunity necessitates that education remain a fundamental interest for our great state of New Hampshire.

Uncertainty and New Rounds of School Finance Litigation

Second, CACR 12 transfers the thorny issue of how best to pay for a constitutional adequate education to an equally thorny issue what and how much constitutes a “disparity” in educational opportunity and fiscal capacity. How many missing programs or activities constitute a disparity of educational opportunity? How far must the disparity of fiscal capacity be from the designated non-disparity point? Will one standard deviation from the designated equalized assessed valuation define and trigger disparity? The language in CACR 12 creates great mischief in deciding what disparity means, how is it applied, and whether the definition and application of what constitutes a disparity is even reasonable or rational.

CACR does not solve important problems; it exacerbates them and continues the uncertainty over education funding in New Hampshire. More time and limited resources will be chewed up in future school finance litigation. The importance of education to the citizens and future of the State is diminished by enshrining in the New Hampshire Constitution an espoused value that education is not fundamental. Senator Bradley got it wrong when he stated that “[a]nything is going to be a marked improvement on where we are today.”[40] CACR 12 is not an improvement; education as a fundamental right is reduced and future litigation is forecast by its passage. It is curious and disconcerting that the legislature drafted legislation to increase support for private and home-school education [41] at the same time that it proposes CACR 12, which reduces the fundamental value of education for those who stay.

Education is fundamental to the future of the individual and it is fundamental to the future of our democratic society.[42] We must not reduce its significance through a constitutional amendment. The constitution is crucial in defining what is important to society. The framers of our constitution deliberately made it difficult to alter the values embodied in the document. They were prescient that the head winds of a given time should not require a major tack in the direction of the ship of state. A major change of course must receive the highest level of analysis and sober reflection. After careful consideration, CACR 12 does not serve the best interests of the people of New Hampshire.


Part II, Article 83 of the New Hampshire Constitution
Adopted in 1784

Art. 83 Encouragement of Literature, etc.; Control of Corporations,
Monopolies, etc.

Knowledge and learning generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affectations, and generous sentiments among the people.

The views expressed are those of the authors and do not necessarily reflect the views of the Program, the Department, or the University.
[1 CACR is the acronym for Constitutional Amendment Concurrent Resolution.
[2 138 N.H. 183 (1993).
[3 Id. at 184. “An obvious starting point in interpreting part II, article 83 is to determine what the particular words used meant in 1784” id. at 187. For example, “‘Cherish’ meant ‘to support, to shelter, to nurse up’” id. Thus, the court used a strict constructionist approach to its constitutional review.
[4] Id. at 192.
[5] See Deborah A. Verstegen &Terry Whitney, From the Courthouses to Schoolhouses: Emerging Judicial Theories of Adequacy and Equity, 11 EDUC. POL’Y 330, 349 (1997) (“The high courts have found that today an adequate education is defined by the best system: it is a quality system, it provides excellence in education, and it equips all children with certain competencies that allow them to be citizens and compete in a global marketplace.”).
[6] Claremont, 138 N.H. 183 at 193.
[7] M. Sommerfield, N.H. Governor Comes Out Against Broad Tax for Schools, EDUC. WEEK 12 (Jan. 19, 1994).
[8] Claremont School District v. Governor, 142 N.H. 462 (1997) (hereinafter Claremont II).
[9] Id. at 465-66.
[10] The dissent after characterizing the “current financing matrix for education [as] far from desirable” asserted:
I should not involve myself in social engineering, no matter how worthy the
cause, when the constitution and the decisions of those charged with the
obligation of forming social policy are compatible. This is not to say that I
infer an absence of regard in the decision of the majority for the proper role
of this court.
Id. at 477 (Horton, J. dissenting).
[11] Id. at 466.
[12] Id. at 477.
[13] Id. at 469.
[14] Id.
[15] 347 U.S. 484 (1954).
[16] Id. at 491.
[17] 457 U.S. 202, 211 (1982).
[18] Claremont Sch. Dist. v. Governor, 142 N.H. at 472.
[19] Id. at 474. The Dissent does not disagree with this proposition, but questions its applicability to the case. Justice Horton wrote, “[The Majority] finds the right to be fundamental. I do not quarrel with this characterization, but note that its materiality is based on the plaintiffs' claim of a violation of equal protection.” Id. at 482.
[20] Id. at 472.
[21] See, e.g., Or. Const. art. VIII, § 3; Iowa Const. art. IX, § 3; Tenn. Const. art XI, § 12.
[22] See, e.g., Lobato v. Colorado, 218 P.3d 358 (Colo. 2009); Committee for Educ. Equality v. Missouri, 294 S.W.3d 477 (Mo. 2009) Scott v. Virginia, 443 S.E.2d 138 (Vt. 1997); Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989); McDaniel v. Thomas, 285 S.E.2d 156 (1981); Robinson v. Cahill, 303 A.2d 273 (N.J. 1973).
[23] John Dayton & Anne Dupree, School Funding Litigation: Who’s Winning the War?, 57 VAND. L. REV. 2351, 2354 (2004).
[24] See, e.g., McDuffy v. Secretary of Education, 615 N.E.2d 516, 517-518 (Mass. 1993)(a question before the court was whether the education clause in that constitution imposed a duty on the state, or was merely “hortatory” or “aspirational” The court concluded it was an affirmative duty, and “the only duty imposed on the executive and legislative branches.”).
[25] 487 P.2d 1241 (1971). Commonwealth v. Dedham, 16 Mass. (1 Tyng) 141, 146 (1819) is an example of an early case involving school finance litigation. The issue was one of whether the town of Dedham was adequately financing its public schools.
[26] William E. Thro, School Finance Litigation as Facial Challenges, 272 ED. LAW REP. 687, 687-89 (2011).
[27] Courts play an important role in resolving school finance disputes and ensuring that a state meets its obligations. See, e.g., Mark A. Paige, Book Review: Courts and Kids, 117 American Journal of Educ. 4, 603-606, (2011).
[28] Judd Gregg, Supreme Court Ruling ‘Arrogant,’ ‘Absurd’, THE UNION LEADER A18 (Dec. 19, 1997).
[29] Richard Lessner, NH Can No Longer “Live Free or Die” If Ruled by Black-Robed Monarchs, THE UNION LEADER C1 (December 19, 1997).
[30] Id. (“If the black-robed oligarchs in Concord are offended by the system of taxation the people of New Hampshire have freely chosen as an affront to the constitution--then let us amend the constitution and send the court packing.”) Id.
[31] Jim Rubens, A N.H. Schools Plan Without State Taxes, PORTSMOUTH SUNDAY HERALD D3 (January 4, 1998).
[33]David J. Hoff, Kansas Lawmakers Agree on Spending Plan, EDUC. WEEK 23 (July 13, 2005). See also, Richard E. Levy, Gunfight at the K-12 Corral: Legislative vs. Judicial Power in the Kansas School Finance Litigation, 54 U. KAN. L. REV. 1021 (2006).
[34]Robert C. Johnston, Bar on Finance Cases Sought, EDUC. WEEK 17 (March 2, 2005).
[35] For example, a supporter Senator Jeb Bradley stated, the amendment would “ratchet back without completely dissolving the court’s ability to rule on any legislative outcomes. Joey Cresta, Bradley: Reform School Funding, PORTSMOUTH HERALD A4 (March 1, 2012).
[36] Strict scrutiny analysis is also triggered when a suspect classification is created by state action. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Loving v. Virginia, 388 U.S. 1 (1967).
[37] Brd. of Educ. v. Nyquist, 439 N.E.2d 359, 369 (N.Y. 1982).
[38] Id. at 371 (Fuchsberg, J., dissenting).
[39] Id.
[40] Cresta, supra note 35 at id.
[41] See HB 1607 and SB 372.
[42] It must be noted that the United States Supreme Court in San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) did not find that education was a federal fundamental right, nor was wealth found to be a suspect classification. There is no education clause in the United States Constitution. This case shifted school finance cases to the state courts for resolution because education is commonly considered to be federal interest, a state responsibility, and local function. However, the High Court opined, the “need is apparent for reform in tax systems which may well have relied too long and too heavily on local property tax.” Id. at 58-9.

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Education DepartmentUniversity of New Hampshire

Scholarly Interest Group (SIG)
Collaborative Leadership and Policy Studies

Policy Brief # 14-01
June 2014

The School Uniform and Compelled Speech
Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014)

Todd A. DeMitchell
Professor, Education Department & the Justice Studies Program

engaged scholarship
Professional Graduate Study at a Research University
With Recognized Scholars and Professional Practitioners


The School Uniform and Compelled Speech

Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014)

What to wear to school today? Does a student’s morning ritual of searching through the closet to find clean clothes to wear to school implicate the U.S. Constitution? Is the selection of pants (yoga pants, shorts, jeans, etc.) and tops (with written statements, or crop tops, etc) protected speech? The answer to the first question is typically yes. The answer to the second question has been mixed depending on the clothes selected and the dress code of the school.
The issue of what to wear to school has traveled from the clothes closet to the courtrooms across the United States, including New Hampshire. The twist in the morning ritual is not what clothes can be selected; rather the issue, both political and legal, is that the decision has been taken from students by the public school requiring what must be worn. However, mandating a uniform dress for students may have solved the morning question of what to wear, it has not resolved the issue of student expressive rights. Does a required school uniform abridge the rights of public school students?

An online petition against Pinkerton Academy’s “Unified Dress Code” gathered 285 signatures against the proposed code,[1] which is essentially a school uniform.[2] The petition, initiated by Savana Melanson, stated, “[A school uniform] takes away individuality. Also will not change study habits of students. Too much money for each child, parents do not have that type of money especially in this economy. We have the right to freedom of expression and would like to keep it that way.”[3] The responses supporting the petition to stop the proposed school uniform policy capture much of the broader debate across the nation about adopting mandatory school uniforms. For example, petitioners wrote:
• “I do not want my freedom of expression taken away.”Alinah Domings
• “its [sic] my right to wake up in the morning and have my own unique
individuality.” Jade Catizone
• “The way I dress, act, and speak are how I express my induvality [sic]. At
school, the way I act and speak is already limited and surpressed [sic], but I
can tolerate that! Trying to crush it further with a school uniform?!
Absolutely not!” Tatiana McNeil[4]

The petitioners, many of them students and some of their parents based their argument against school uniforms on three pillars—freedom of speech/expression, the cost of the uniforms[5], and the belief that the school uniforms will not solve school issues (behavior/student achievement) at the school.[6] The Academy’s final decision was to maintain the current “business casual” dress code rather than implement the proposed Unified Dress Code.[7]
School districts across the nation as well as in New Hampshire, struggle with which policy options for student dress are best.[8] There is no clear decision about whether school uniforms are best for education, let alone whether they are the right policy decision for a specific school, including New Hampshire schools. For example, the Long County Board of Education in Georgia rejected a recommendation from its superintendent to implement a school uniform policy.[9] The faculty and school administrators were in favor of implementing a school uniform policy but the parents were not. Similarly, but with an opposite conclusion, the Bradford County School Board in Florida voted to continue its school uniform policy at the middle school in spite of a parent survey that was nearly two to one against the policy.[10]
This Brief will not review whether adopting a school uniform policy is a good or a bad policy decision.[11] Instead, this Brief will focus on the issue that surfaced in the policy discussion at Pinkerton Academy, what is the relationship between a mandatory school uniform policy and a student’s free speech rights. More specifically, the Brief will review the recent 2014 case from the Ninth Circuit, Frudden v. Pilling[12], which analyzed the issue of whether wearing a school uniform with the logo “Tomorrow’s Leaders” in addition to the school’s name and Gopher logo constitutes compelled speech and whether the exemption to the olicy is content-neutral. We will begin with a brief review of public school students’ right to free speech under the First Amendment.
Students have a constitutional right to free speech under the First Amendment, a right they do not relinquish when they walk through the schoolhouse gate. Commencing with Tinker v. Des Moines Community Independent School District in 1969,[13] the United States Supreme Court has issued four opinions articulating the constitutional rights of students in the schools.[14] Although students are considered "persons" and are therefore entitled to constitutional protections, their protected rights of speech and expression are limited. However, Chief Justice Burger asserted "that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”[15] Forms of expression allowed by adults may be prohibited to children in a public school.
A school is generally considered a nonpublic forum for purposes of the First Amendment; therefore, the state can exercise a greater degree of control than it could if schools were an open forum.[16] The courts have somewhat curtailed student First Amendment rights by giving deference to school administrators' judgment as to what speech is appropriate in the context of the public school.[17] For example, in a T-shirt case in Massachusetts, a federal court judge opined, “At least in high school. A political message does not justify a vulgar medium.”[18]
School officials and students do not always share the same opinion of what is appropriate to wear to school. But if a school chooses to adopt a specific policy that restricts what students may wear to school, that policy must comport with established and guaranteed constitutional freedoms.[19]
Of course, students’ constitutional rights are subject to some limitations in the school environment, including their right to freedom of speech and search and seizure.[20] After all, schools have a legal responsibility to provide an environment conducive to learning. “The very nature of public education requires limitations on one’s personal liberty in order for learning process to proceed.”[21] Therefore, a student’s First Amendment right to free speech must be “balanced against the need to foster an educational atmosphere free from undue disruptions to appropriate discipline.”[22] Consequently, “[s]chool administrators have a legitimate and pressing need to gain a broad understand of the rights guaranteed to students by the First Amendment and how these rights are applied in the school setting.[23] Only the Tinker case will be reviewed because it provides the beginning point for the articulation of a public school student’s right to free speech.
A. The Black Armband Case: Tinker v. Des Moines
The Supreme Court first recognized a student’s right to free speech in the school environment more than forty years ago in the landmark decision of Tinker v. Des Moines Independent Community School District.[24] The case involved facts that occurred in 1965, when Des Moines School officials suspended John and Mary Beth Tinker and Chris Eckhart for wearing black-arm bands to school in protest of the Vietnam War.
The school administration had learned about the Tinker children’s planned protest in advance and hastily developed and implemented a policy targeting the protest. The three students brought suit in federal court arguing that the First Amendment gave them the right to express themselves in this quiet and dignified way.
The federal district court dismissed their complaint. On appeal, the Eighth Circuit Court of Appeals heard the case en banc but the court was equally divided. The Tinkers then proceeded to the United State Supreme Court to press their case that they had a constitutional right to quietly and passively wear a two-inch wide black armband in protest of the war in Vietnam.
In its 1969 decision, the Supreme Court declared that “[s]tudents in school as well as out of school are ‘persons’ under the Constitution. They are possessed of fundamental rights that the state must respect, just as they themselves must respect their obligations to the State.”[25] Although, school officials possess “the comprehensive authority . . . to prescribe and control conduct in the schools,”[26]they must exercise that authority within the bounds of the Constitution. “In our system”, the Court emphasized, “state-operated schools may not be enclaves of totalitarianism.”[27] Therefore, “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.”[28]
The Supreme Court found that school authorities could not justify the prohibition of student expression unless the conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or “collid[e] with the rights of others.”[29] The Court asserted that “undifferentiated fear or apprehension of disturbance” couldn’t trump this “hazardous freedom” and replace it with rigid regimentation.[30]
Using this line of reasoning, a restriction on student clothing that arguably has some symbolic or explicit expression cannot be suppressed unless school officials can show the clothing might "materially disrupts classwork” or provoke “substantial disorder" in the school environment.[31] In addition, the Court ruled, student speech may be prohibited when it involves a "collision with the rights of other students to be secure and to be let alone."[32]
However in Tinker, the SupremeCourt expressly differentiated between a school’s restrictions on a student’s constitutionally protected speech and a school’s dress code. In fact, the Court emphasized that "[t]he problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing. Our problem involves direct, primary First Amendment rights akin to 'pure speech.'"[33] In spite of this seeming restriction on the applicability of Tinker, it used extensively in dress code cases.[34]
Nevertheless, in spite of the fact that the Supreme Court implicitly differentiated between pure speech from clothing issues, several courts have cited Tinker for the proposition that a student's choice of clothing style carries the protection of the United States Constitution. For example, only a year after the Tinker decision, a New Hampshire sixth grader persuaded a federal court that he had a liberty interest in wearing blue jeans to school, even though he had violated the school's dress code.[35] Although the judge admitted that the constitutional interest was minor, he ruled that the school district had not justified its infringement on a child's right to choose his own pants.[36]
Although lawsuits against school dress codes and school-uniform policies often involve similar legal arguments, a school student-dress code is different from a school uniform policy. A dress code states what cannot be worn while a uniform policy states what must be worn. Dress codes contract clothing options for students, whereas mandatory school uniforms define the clothing options.
Dress codes bring to mind revealing clothing, advertisements for drugs and alcohol; boxers pulled with jeans pulled down, as well as gang colors and symbols. While school uniforms often conjure visions of private,[37] often Catholic,[38] school students where girls wear plaid skirts and boys wear ties and jackets, most public school uniforms require that specific colors such as khaki and blue be worn. In some ways, dress codes are intended to protect the school environment from inappropriate influences, while school uniforms are intended to improve the school environment.[39] School uniform policies are more restrictive of student choices than dress codes.[40] (see below)

[1] Michael Firmin, Suzanne Smith, & Lynsey Perry, School Uniforms: A Qualitative Analysis of Aims and Accomplishments at Two Schools, (Cedar University) (A parent in a study of school uniforms at two Christian schools stated, “When they are out in our society, they’re representing . . .[the school] . . . and we hope that with them being in those uniforms it would be a reminder to them that they are from a Christian school and they are to put forth a Godly appearance as a witness.”). Available at
[2] See Susan McBrayer, “The School Uniform Movement and What It Tells Us about American Education: A Symbolic Crusade”, Catholic Education (Sept. 2007) (“The plaid uniform has been culturally synonymous with Catholic schools. Today, however, uniforms have become less formal, replacing dress shirts for polo shirts emblazoned with the school name or mascot. Sweaters and blazers have given way to sweatshirts in many Catholic schools. Administrators and teachers may have initiated this change in keeping with the more secular phenomenon of ‘business casual.’ Furthermore, rising tuition, declining enrollment, and a change in demographics may have also contributed to new trends in the Catholic school uniform.”);col1.
[3] For example, in the first school uniform case, Phoenix Elem. Sch. Dist. No 1 v. Green, 943 P.2d 836 (Ariz. Ct. App. Div. 2 1997), the school asserted and the court accepted the argument that school uniforms have the following impact:
  1. 1. Promotes a more effective climate for learning;
  2. 2. Creates opportunities for self-expression;
  3. 3. Increases campus safety and security;
  4. 4. Fosters school unity and pride;
  5. 5. Eliminates “label competition”;
  6. 6. Ensures modest dress;
  7. 7. Simplifies dressing; and
  8. 8. Minimizes costs to parents.


Id. at 839. However, for a critique of these assertions, see Todd A. DeMitchell, School Uniforms: There Is No Free Lunch, TEACHERS COLLEGE RECORD (Dec. 18, 2006) ID 12897.
[4] See Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008) (“There are interesting and important questions about the legal difference between dress codes (which limit the universe of clothing options) and mandatory uniform policies (which define the universe of clothing.”) Id. at 444 (Thomas, J., dissenting).



As can be seen from the discussion above, school uniform policies are more restrictive than dress codes. However, school uniform litigation outcomes have been more consistent than dress code litigation. In fact, of the eight school uniform cases that I found, the school district won every time; that is until Frudden v. Pilling’s[41] Ninth Circuit Court of Appeals decision in February of 2014. Aside from the consistency of wins for school districts upholding school uniform policies, the other striking part of these cases, including the Court of Appeals decision in Frudden, none of the four major U.S. Supreme Court’s student free speech cases[42] were used as the central legal precedent. Instead the courts used precedents from a flag burning case, parental rights to direct the upbringing of their children, religion, and substantive due process. The school uniform cases are listed below.

School Uniform Cases
Phoenix Elem. Sch. Dist. No. #1 v. Green, 943 P.2d 836 (Ariz. Ct. App. Div. 2 1997).
Hicks v. Halifax County Brd of Educ., 93 F. Supp. 2d 649 (E.D.N.C. 1999).
Byars v. City of Waterbury, 795 A.2d 630 (Conn. Super. Ct. 2001).
Canady v. Bossier Parish Sch. Dist., 240 F.3d 437 (5th Cir. 2001).
Littlefield v. Forney Independent Sch. Dist., 268 F.3d 275 (5th Cir. 2001).
Lowry v. Watson Chapel Sch. Dist., 508 F. Supp.2d 713 (E.D. Ark. 2007).
Derry v. Marion Community Schools, 790 F. Supp.2d 839 (N.D. Ind. 2008).
Jacob v. Clark County Sch. Dist., 526 F.3d 419 (9th Cir. 2008).

And, along comes Frudden from the Ninth Circuit Court of Appeals to break the streak of unbeaten school uniform cases and to interject a new cause of action, compelled speech. The discussion below will focus on the appellate decision and not on the district court decision, which granted summary judgment in favor of the defendant school district.[43]


A. The Facts
Roy Gomm Elementary School in Reno, Nevada passed a school uniform policy (May 2011) with two-thirds of the families voting to approve the mandatory school uniform policy.[44] Students were required to wear red or navy polo-style shirts and tan or khaki bottoms during school hours. Students were not allowed to alter the uniform. The uniform shirts had the Roy Gomm logo of a gopher with the words “Roy Gomm Elementary School” with the message above it, “Tomorrow’s Leaders.”[45] The school uniform was objected to and the motto, “Tomorrow’s Leaders” became the focus of the ensuing lawsuit. The exemption to the mandatory school policy was wearing a uniform form a nationally recognized youth organization such as the Boy Scouts or the Girl Scouts.
In early fall, soon after the policy was implemented, the Frudden children (a fifth-grade boy and a third-grade girl) did not wear the required uniform; no action was taken by the school. Approximately two weeks later they wore uniforms from the Youth Soccer Organization. The students were asked to change because neither was a meeting of the organization nor was there practice that day. The following day the same thing happened with the same result. On the following day, September 14, 2011, the fifth-grade boy wore their uniform shirts inside out so that the logo was not visible. He was asked to turn it right-side-out and he complied.[46] The Frudden’s brought suit.[47]
Aside from the four student free speech cases, two other Supreme Court cases help to frame the Frudden discussion of the school uniform’s “Tomorrow’s Leaders” logo as compelled student speech. First, the right to speak connotes a complimentary right to refrain from speaking.[48] Second, in a teachers union case, the Supreme Court wrote, “at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.”[49] In other words, concomitant with the right to speak is the right not to be compelled to speak.
B. The Ninth Circuit Court of Appeals
The federal district court, upon the defendant school district’s motion, and dismissed the case finding the school uniform policy to be constitutional. Among other findings,[50] the court found the motto[51] with the picture of a gopher, while slightly complex, was innocuous and that there was no meaningful risk that the students would be conveying a message of conformity. The plaintiffs alleged the school uniform compelled students to wear an expressive statement that is not viewpoint-neutral, “and that the very fact of wearing a uniform compels the expression of support for group affiliation.”[52] The district court disagreed.
There were two issues before the Ninth Circuit. First, is the required logo “Tomorrow’s Leaders” unconstitutionally compelled speech on leadership?[53] Second, does the policy contain a content-based exemption for nationally based student organizations, such as the Boy Scouts and the Girl Scouts.
1. Compelled Speech Analysis
Frudden came on the heels of another Ninth Circuit cases involving a mandatory school uniform. The case arose out of a Nevada, Jacobs v. Clark County School District.[54] The Appellate Court upheld the school’s school uniform policy. Some of the schools displayed the school logo but none of the school uniforms had written communications. Therefore, the defendant schools did not force to students to communicate any message. The policy merely required students to wear solid-colored tops and bottoms.[55] Consequently, the Frudden court distinguished the Jacobs’ court holding.
This analysis starts with the Supreme Court case West Virginia Board of Education v. Barnette.[56] This is the classic flag salute case in which a state law requiring students to stand and recite the Pledge Allegiance to the Flag was found to be unconstitutional. The Supreme Court held that the compelled flag salute violates the Bill of Rights, which protects the individual’s right to speak his own mind and not be compelled by the government “to utter what is not in his mind.”[57] Essentially, the Court that the individual’s right of conscience and intellect is inviolable by government. Government cannot compel individuals to espouse that which the individual does not hold.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

Thirty-four years after the West Virginia case, the Supreme Court in A New Hampshire case heard another case of compelled speech, Wooley v. Maynard.[58] New Hampshire’s license plate, “Live Free or Die”, was the subject of the free speech case. Were the plaintiffs’ compelled by government to express a position by carrying the license plate with a motto they felt was “repugnant to their religious and political beliefs”?[59] The plaintiffs became the instrument, through the license plate motto, to convey government’s normative statement, a statement with which the plaintiffs’ disagreed. This is the essential reasoning of West Virginia.[60]
Similarly, the Fruddens’ argued that the mandated written motto conveys two viewpoints. First, “leadership should be celebrated (or at least valued above being a follower), and second, Roy Gomm Elementary School is likely to produce ‘[t]omorrow’s leaders.’”[61] The Court of Appeals agreed that the motto on the mandatory school uniform conveyed a message to which the Frudden’s disagreed but were compelled to passively advocate. The court held that the motto was not meaningfully distinguishable from the New Hampshire license plate.[62] The school uniform with its mandated motto violated the free speech of the plaintiffs through compelled speech.
2. Content-Neutral Policy?
The plaintiffs next argued that the school uniform policy exemption for nationally recognized youth organizations is not content-neutral. When government favors the content of one speech over another with a different content it comes before the courts with an exacting test it must meet. The classic example of content-neutral restrictions are time, place, and manner restrictions. The burden is placed on the government/school district to meet the burden of its restriction on speech based on the content of the speech.
The court asserted that the exemption favors the speech of some organizations (nationally recognized student organizations but not locally or regionally recognized youth organizations) but not others.[63] Therefore,” the RGES school uniform policy’s exemption indicates a content-specific distinction between favoring certain clothing-related speech.”[64]
3. Reversed and Remanded
The Frudden’s case was dismissed by the district court. They appealed the dismissal. The Ninth Circuit Court of Appeals held for the plaintiff Fruddens’ finding that the motto on the school uniform constituted compelled speech. The court also asserted that the exemptions were not content neutral. When government compels speech or does not treat all speech neutrally by applying restrictions that are based on the content of speech, the courts hold the action of government to the highest level of review––strict scrutiny analysis. This analysis asks whether the goal of the policy serves a compelling state interest and whether the means (a school uniform policy) are narrowly tailored to serve the interest. Therefore, the court reversed the decision of the district court and remanded it back to the lower court to allow the school district the opportunity to justify placing the written motto on the uniforms and the exemption in the policy. Likewise, the Frudden’s must also be given the opportunity to produce “countervailing evidence” in the strict scrutiny analysis if the policy is to survive.[65]

New Hampshire may not have any, or many, school uniform policies and at first blush the case may seem removed from the realities of school life and educational policymaking in the Granite State. However, as we have seen above, the case for school uniforms has been introduced and in the absence of Supreme Court precedent, any litigation will search for persuasive authority in other jurisdictions, such as the Ninth Circuit. The Frudden case is of national interest (the first case in which a mandatory school policy did not prevail), and informed policy makers need a broad understanding of the issues surrounding school uniform policies to balance a local understanding of the circumstance, which gave rise to the proposed policy. Clearly, any school considering adopting a school uniform policy should be aware of this case. The one outcome, at least at this point, that appears to be clear is that a school should refrain, at least in the Ninth Circuit, from having a motto on its uniforms. Another outcome may be a reluctance to assert the school’s position, aspirations, and message through broad-based means for fear of lawsuits. The school district spent over $100,000 in legal fees, not counting the amount of educator time required.[66]
This case is interesting and instructive on several levels.
Compelled Speech
The compelled speech section of the Frudden court’s holding raises issues. If mottos and their use in schools is constructed liberally, the application of compelled speech may proliferate beyond school uniforms. While the students in West Virginia v. Barnette suffered expulsion for their decision to violate the policy on the flag salute, the Frudden’s suffered no such adverse action, and discipline was not central to the case. While the Frudden’s suffered no state sanctioned adverse action as opposed to Barnette (expulsion)[67] and Wooley (imprisonment)[68], the court considered a lack of adverse action to be irrelevant. Therefore, no additional harm other than compelled speech is necessary under Frudden to assert a cause of action.
Frudden introduced at the federal appellate level, compelled speech, which has not surfaced in any meaningful way since West Virginia v. Barnette. Once a cause of action has entered the court system, the tendency is for it to proliferates beyond the original fact pattern. For instance, if a school has students who violate the dress code and is told to wear a T-shirt in place of or over the questionable attire or face suspension, and that T-shirt states something more than the name of the school, is it compelled speech?
• Do all aspirational statements/mottos, such as “Everyone Successful Everyday”, “Where Kids are #1”, and “Scientia, Concordia, Sapientia: Knowledge, Harmony and Wisdom”, or even such descriptions as “Home of the Warriors” or “Home of the Crusaders” constitute speech? And under Frudden, if they are speech it may constitute compulsion to carry the statement on school materials or to recite the non-“ideological speech”?[69] Does a required school identification card with the school’s motto constitute compelled speech?
• It is problematic whether the slogan “Tomorrow’s Leaders”, will survive strict scrutiny analysis. Does it serve a compelling state interest and is it narrowly drawn? Will any motto or slogan reach this exacting and high standard? Will any hortatory statement about the goals of the school reach this standard?
• A statement about the student’s being the leaders of tomorrow is innocuous. Yet, it is considered compelled speech. The unresolved issue that both Frudden and Jacobs dodged, was whether the logo (the gopher in Fridden) constitutes speech and thus can be compelled speech. If the logo is compelled speech, the constitutional protection may reach beyond school uniforms to any other identification with the school that students may encounter in which they wear, carry, or identify their school.

Content-Neutral Exemptions

The requirement for greater specificity for exemptions may involve an attempt to narrow exemptions through a tighter definition or to expand them to include everything. The proper response may be to not allow any restrictions, much like Palmer v. Waxahachie Independent School District [70] , which banned all messages on student clothing. This content-neutral finding may not be specific to just exemptions for school uniforms. Is an exemption for religious beliefs content-neutral or does it favor religious beliefs over other kinds of beliefs?

Frudden restricts the ability of school authorities to make reasoned and rationale decisions regarding student discipline. Another hurdle has been placed in front of educators who must carry with them the constitutional knowledge and application of legal concepts that do not abridge a student’s constitutional rights. For example, what constitutes lewd and vulgar language, what constitutes a matter of public concern, when is the student speaking as a student and not as a citizen who just happens to be at school, what constitutes a prior restraint, and what Internet/ electronic communication off campus requires on campus discipline. And, now educators may have to possibly parse what constitutes compelled speech.
Wearing “Tomorrow’s Leaders” logo on a school uniform is not the same as being forced to stand, under the threat of expulsion to publically state an allegiance to the State’s preferred position. It is also not the same as being required, under penalty of law, to affix a license plate to your vehicle with a slogan that espouses a political viewpoint. The court’s holding on compelled speech is particularly problematic and may raise mischief in the near future. [71] Frudden provides little guidance for school administrators who must almost daily chart a path through the thicket of First Amendment rights and still manage the culture of the school, provide a safe environment, and meet the curricular demands of the curriculum. Today’s leaders are ill served by the ruling on “Tomorrow’s Leaders.”

[1] See, Pinkerton Academy “Unified dress code” (uniforms): Stop the uniform proposal (2013), available at As of June 1, 2014, the 715 needed supporters for the petition was not met.
[2] The school administrators at Pinkerton Academy did not characterize the unified dress code as a school uniform. Hunter McGee, Derry’s Pinkerton Academy looks at narrowing dress code. NEW HAMPSHIRE UNION LEADER (Sept. 22, 2013) available at
[3], supra note 1 at Id.
[4] Id.
[5] See response from Solon Rawson, “One major problem is that the cost is simply unfeasible for just the impoverished students and families, but for the middle class who is still hard-hit by the recession. It is exponentially more viable for families to buy their clothing second-hand, and making everyone wear the same thing would amplify the differences between ‘new’ clothing and ‘used’ clothing.” Id.
[6] See Lauren Finney, “I believe a healthy wholesome lunch would actually increase productivity exponentially more than a unified dress code, we need more broccoli and less mechanically separated chicken”; Michael Szekely, “I neither want uniforms, nor do I think it will solve any problems”; Carla Duarte, “Changing my clothes into something that makes me feel self-conscious and uncomfortable is not going to turn me into a better student.” Id.
[7] Glenn Ahrens, Dean of Students, Pinkerton Academy, Letter to families of students of Pinkerton Academy (April 4, 2014) available at For a copy of the dress code, see PINKERTON ACADEMY 2013-2014 STUDENT PLANNER, at 4
[8] See, e.g., school uniform considerations in New Hampshire (see agenda for Fremont School District, SAU #83 available at Not adopted) and Allentown, School District, Allentown, PA which adopted a policy in September of 2013. See For information on the school uniform policy, see
[9] Mike Riddle, “Log BoE nixes student uniforms.” Coastal Courier (May 29, 2009). Available at
[10] Mark J. Crawford, “Board ignores survey to support uniforms,” Bradford County Telegraph (May 28, 2009). Available at
[11] For a discussion on school uniforms and research supporting or questioning the use of school uniforms, see Todd A. DeMitchell & Mark A. Paige, School Uniforms in the Public Schools: Symbol or Substance? 250 EDUCATION LAW REPORTER 847 (2010);
[12] 742 F.3d 1199 (9th Cir. 2014).
[13] 393 U.S. 503 (1969).
[14] Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969); Bethel School District No. 403 v. Fraser, 478U.S. 675 (1986); Hazelwood School District v. Kuhlmeier,484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007).
[15] Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
[16] See e.g., Lamb’s Chapel v. Center Moriches Free School District, 508 U.S. 384 (1993); Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). For a discussion of fora in public educational settings, see Perry Educational Association v. Perry Local Educator’s Association, 460 U.S. 37 (1983).
[17] Denno v. School Board of Volusia County, 959 F.Supp. 1481 (M.D. Fla. 1997).
[18] Pyle By and Through Pyle v. South Hadley School Committee, 861 F.Supp. 157, 169 (D.Mass 1994).
[20] See New Jersey v. T.L.O., 469 U.S. 325 (1985).
[21] Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970).
[22] Bivens v. Albuquerque Public Schools, 899 F. Supp. 556, 559 (D.N.M. 1995).
[23] DEBORAH A. BEMIS, FREEDOM OF SPEECH AND STUDENT CONDUCT: THREATS, RIGHTS, AND THE STANDARD OF CIVILITY (Unpublished dissertation, University of New Hampshire) 4 2012),
[24] 393 U.S. 503 (1969).
[25] Id. at 511.
[26] Id. at 507.
[27] Id. at 509.
[28] Id. at 511
[29] Tinker, 393 U.S at 513. Justice Black’s dissent lamented that this case is “wholly without constitutional reasons in my judgment subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.” Id. at 525 (J. Black dissenting).
[30] Id. at 508.
[31] Id. at 513.
[32] Id. at 508. The use of the second prong has been spotty. The Third Circuit Court of Appeals wrote, "The precise scope of Tinker's' interference with the rights of others' language is unclear." Saxe v. State College Area School District, 240 F.3d 200, 217 (3d Cir. 2001).
[33] Id. at 513.
[34] The Ninth Circuit Court of Appeals unanimously affirmed the district court’s use of Tinker to establish that the administration had forecast a substantial disruption based on previous incidents of threats, ongoing racial tension, gang violence, and a near-violent altercation over the display of the American flag at the last Cinco de Mayo celebration, Dariano v. Morgan Hill Unified School District, 822 F. Supp. 2d 1037 (N.D. Cal. 2011).
[35] Bannister v. Paradis, 316 F. Supp. 185 (D.N.H. 1970).
[36] For a contrary view on a school restriction against wearing blue jeans, see Fowler v. Williamson, 448 F. Supp. 497 (W.D.N.C. 1978) (school principal's prohibition against wearing blue jeans to graduation ceremony did not violate student's constitutional rights).
[37] Michael Firmin, Suzanne Smith, & Lynsey Perry, School Uniforms: A Qualitative Analysis of Aims and Accomplishments at Two Schools, (Cedar University) (A parent in a study of school uniforms at two Christian schools stated, “When they are out in our society, they’re representing . . .[the school] . . . and we hope that with them being in those uniforms it would be a reminder to them that they are from a Christian school and they are to put forth a Godly appearance as a witness.”). Available at
[38] See Susan McBrayer, “The School Uniform Movement and What It Tells Us about American Education: A Symbolic Crusade”, Catholic Education (Sept. 2007) (“The plaid uniform has been culturally synonymous with Catholic schools. Today, however, uniforms have become less formal, replacing dress shirts for polo shirts emblazoned with the school name or mascot. Sweaters and blazers have given way to sweatshirts in many Catholic schools. Administrators and teachers may have initiated this change in keeping with the more secular phenomenon of ‘business casual.’ Furthermore, rising tuition, declining enrollment, and a change in demographics may have also contributed to new trends in the Catholic school uniform.”);col1.
[39] For example, in the first school uniform case, Phoenix Elem. Sch. Dist. No 1 v. Green, 943 P.2d 836 (Ariz. Ct. App. Div. 2 1997), the school asserted and the court accepted the argument that school uniforms have the following impact:
  1. 1. Promotes a more effective climate for learning;
  2. 2. Creates opportunities for self-expression;
  3. 3. Increases campus safety and security;
  4. 4. Fosters school unity and pride;
  5. 5. Eliminates “label competition”;
  6. 6. Ensures modest dress;
  7. 7. Simplifies dressing; and
  8. 8. Minimizes costs to parents.
Id. at 839. However, for a critique of these assertions, see Todd A. DeMitchell, School Uniforms: There Is No Free Lunch, TEACHERS COLLEGE RECORD (Dec. 18, 2006) ID 12897.
[40] See Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008) (“There are interesting and important questions about the legal difference between dress codes (which limit the universe of clothing options) and mandatory uniform policies (which define the universe of clothing.”) Id. at 444 (Thomas, J., dissenting).
[41] 742 F.3d 1199 (9th Cir. 2014).
[42] See supra note 14.
[43] Frudden v. Pilling, 842 F. Supp.2d 1265 (D.Nev. 1012).
[44] Frudden v. Pilling, 742 F.3d 1199, 1201 (9th Cir. 2014).
[45] Id.
[46] Id. at 1202.
[47] The Frudden’s original brought suit on July 1, 2011, prior to their children’s actions. On October 18, 2011, they amended their complaint alleging 16 complaints. Id.
[48] Riley v. National Federation of the Blind, Inc., 487 U.S. 781, 797 (1988).
[49] Abood v. Detroit Board of Education, 431 U.S. 209, 234-35 (1977).
[50] The Frudden’s alleged violations First Amendment expressive rights, First Amendment associational rights, procedural and substantive due process, equal protection, and viewpoint discrimination. The plaintiff lost on all counts. Id. at 1273-78.
[51] The district court stated that the motto was “one team, one community” Frudden, 842 F. Supp. 2d at 1274. The Ninth Circuit Court of Appeals stated that the logo was “Tomorrow’s Leaders.” Frudden, 742 F.3d at 1201. No explanation for the difference in logos was offered by the Appellate Court. An Internet search showed the use of the “Tomorrow’s Leaders” logo.
[52] Frudden, 842 F. Supp. 2d at 1274.
[53] Frudden, 742 F.3d at 1202.
[54] 526 F.3d 419 (9th Cir. 2008).
[55] Id. at 438.
[56] 319 U.S. 624 (1943). The plaintiff students who refused to stand and salute the flag had been expelled and their parents had been prosecuted for “causing delinquency.” Id. at 629-30.
[57] Id. at 634.
[58] 430 U.S. 705 (1977).
[59] Id. at 707-08.
[60] The Supreme Court in Wooley, reasoned, “[compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially one of degree” Id. 715 (quoted by Frudden, 742 F.3d at 1203.).
[61] Frudden, 742 F.3d at 1204.
[62] “[B]y mandating the written motto on the uniform shirts, the RGES policy compels speech under Wooley” Id at 1205.
[63] Id. at 1206. Furthermore, the court raised the issue of what criteria are used to determine national recognition. Id.
[64] Id. at 1207.
[65] Id. at 1207-08.
[66] Siobhan McAndrew, Proposed Washoe Policy Addresses School Uniforms RENO GAZETTE-JOURNAL (May 12, 2014) available at
[67] See supra note 56.
[68] Id. at 1205.
[69] “Finally, we do not believe the First Amendment analysis turns on an examination of the ideological message (or lack thereof) of ‘Tomorrow’s Leaders.” Id. at 1206.
[70] Palmer v. Waxahachie Independent School District, 579 F.3d 502 (5th Cir. 2009). For a discussion of Palmer, see Richard Fossey, Todd A. DeMitchell, & Suzanne Eckes, The End of the T-Shirt Wars in the Public Schools? Palmer v. Waxahachie Independent School District, TEACHERS COLLEGE RECORD (September 28, 2009) ID Number: 15775.
[71] “If every time a citizen was outraged by the workings of a rather unimaginative bureaucracy he claimed a harm of constitutional dimensions, the courts would not just be crowded—they would be paralyzed.” Swany v. San Ramon Valley Unified School District, 720 F. Supp. 764, 783 (N.D. Calif. 1989).


The Quantum Leap: From a Backpack Search to a Strip Search. The Supreme Court Decides, Safford Unified School District #1 v. Redding

Todd A. DeMitchell Professor, Department of Education & the Justice Studies Program Chair, Department of Education University of New Hampshire
June 2009

Parents, educators, and community members want and expect that their public schools will be safe places for children. Public schools are also places where students carry their constitutional rights with them inside the schoolhouse gate. Therein is the challenge for educators: the school must provide an environment that is conducive to and safe for learning and students have the rights of free speech,1 due process,2 and the right to be free from unreasonable search and seizure.3 Public schools must serve both of these ends.4 On June 25, 2009, the United States Supreme Court handed down a decision in Safford Unified School District #1 v. Redding,5 that helps to define that balance. On one side is the student’s legitimate expectations of privacy and security; on the other side is the substantial interest of teachers and administrators to maintain discipline in the school.

1 Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). 2 Goss v. Lopez, 419 U.S. 565 (1975). 3 New Jersey v. T.L.O., 469 U.S. 325 (1985 4 Public schools “are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes” (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943)).5 557 U.S. _ (2009).

In this case a student reported to the assistant principal that certain students were bringing drugs and weapons to school. A week later the same male student gave the assistant principal a white pill and said that Marissa Glines had given it to him. The white pill was a prescription strength 400mg Ibuprofen used for pain relief. The assistant principal removed Marissa from class. When Marissa’s planner was searched a couple of small knives, a cigarette lighter and a cigarette were found. No pills were found in the planner. A subsequent search of Marissa’s pockets in his office discovered four more white prescription strength Ibuprofen pills and a blue 200mg Naprosyn. The assistant principal asked where she got the blue pill to which Marissa replied “It must have slipped in when she gave me the IBU 400s.” When asked “who she is”, Marissa said Savannah Redding an honors student who was one of her friends. Possession of over-the-counter medication and/or prescriptions medication is banned unless prior permission has been secured.

The assistant principal called Savana to his office. She admitted that the day planner, which was setting on his desk was hers but that the small knives and cigarette lighter and cigarette were not hers. She had lent the planner to Marissa. When asked about the pills Savana denied having them or knowing about them. She agreed to a search. A search of her backpack and her outer clothing turned up empty, no pills. Next Savannah was taken to the nurse’s office where two females directed Savana to disrobe to her bra and underwear. No pills were found. Savana was next directed to pull her bra out at the side, shake it, and to pull out her underwear at the crotch and to shake it. Again, no drugs were found.

The Fourth Amendment and the Public School

Search and seizure, a Fourth Amendment protection, in public schools is governed by the Supreme Court decision New Jersey v. T.L.O.6 The High Court held that students’ have a constitutional right to be free from unreasonable search and seizure but given the special nature of the public school that right was less than for a citizen who was not a student. Rather than probable cause as a basis for a search, school officials need only show that the search of student was based on reasonable suspicion a lower standard than probable cause. The Court fashioned a two-part test to ascertain if reasonable suspicion was established. First, the search must be justified at its inception and second the search will be permissible in its scope when the search measures are related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.7

The Supreme Court in the Safford case followed the precedent of New Jersey v.T.L.O. and did not alter the basic structure of the two-pronged test of inception and scope nor the basic trigger of reasonable suspicion for educators and not the higher probable cause standard required of the police. Justice Stevens joined by Justice Ginsburg, describes the case thusly, “This is, in essence, a case in which clearly established law meets clearly outrageous conduct.”8 The High Court, however, did add depth to the quality of what is necessary as the scope of the search expands, especially when the search expands to the intrusiveness of a strip search.
6 469 U.S. 325 (1985). 7 Id. at 342. 8 Safford Unified School District #1 v. Redding, 557 U.S. _ (2009), slip op. at 1 (Opinion of Stevens, J.)

The Supreme Court had two issues before it. First, was the strip search of Savana Redding constitutional and second whether the school officials who ordered and conducted the strip search were entitled to qualified immunity from liability.

Justice Souter delivered the opinion of the Court joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Breyer, and Alito. The majority found that the search was unconstitutional. Justices Stevens and Ginsburg concurred in the judgment about the unconstitutionality of the search. Justice Thomas dissented characterizing the majority opinion as a “deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis . . . allowing schools and teachers to set and enforce rules and to maintain order.”9

The majority also held that there was enough of a difference in judicial opinions to “require immunity for the school officials in this case.”10 Therefore, the school officials were entitled to qualified immunity because it was not clearly established at the time of the search that the strip search of a 13 year-old female student for prescription strength Ibuprofen was unconstitutional. Justices Stevens and Ginsburg dissented from this part and Justice Thomas concurred in this judgment. In effect, eight Justices found that the strip search of Savana was unconstitutional (Souter, Roberts, Scalia, Kennedy, Breyer, Alito, Stevens, and Ginsburg) and seven held that the educators were entitled to qualified immunity from liability (Souter, Roberts, Scalia, Kennedy, Breyer, Alito, and Thomas).

9 Safford, 557 U.S. slip op. at 1 (Opinion of Thomas, J.) 10Safford Unified School District No 1 v. Redding, 557 U.S. at slip op. at 12 (Opinion of the Court).

The High Court affirmed the Ninth Circuit en banc decision which found the search to be unconstitutional, reversed the Court of Appeal’s holding that the school officials did not have qualified immunity, and remanded the case for a finding of whether the school district was liable for the unconstitutional search.

Majority Opinion—An Unconstitutional Search

The Supreme Court’s opinion provides much for educators to digest, understand, and incorporate into their practice. First, the search must be reasonable at its inception. The Court found that Marissa’s statement that the pills came from Savanna, that Savana and Marissa were on “friendly terms”, that Marissa had Savana’s planner, even though no pills were found in the planner, and that Marissa and Savana had been identified with a “rowdy” group of students gave rise to a reasonable suspicion at the inception of the search. Consequently, the search of Savana’s backpack and outer clothing was justified.

It was the scope of the search where the school officials went afoul of the Constitution. Under T.L.O., the scope of a search must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.”11 It was at this point that the content of the suspicion did not match the expansion of the search. There was sufficient suspicion based on evidence to search the backpack and the outer clothing. But there was no additional evidence that would lead a reasonable educator to conclude that a search of Savana’s underwear and bra would reveal the pills. The assistant principal did not ask Marissa any follow up questions: was there a likelihood that Savana presently had the pills; when did Marissa receive the pills from Savana; and where might Savana be hiding the pills. If Savana gave the pills to Marissa a day ago, a few days, ago, or a week ago, what was the likelihood that Savana would still have the pills secreted in her underwear or bra? A search of Marissa’s bra and underwear did not reveal any pills, therefore, why would a search of Savana’s underwear and bra reveal the pills became an unanswered or even an unasked question.

11 Id. at 9 citing New Jersey v. T.L.O. 469 U.S. at 342.

In essence, the Court asked on what basis did the scope of the search expand. There was no new evidence to make the “quantum leap from outer clothes and backpacks to exposure of intimate parts.”12 Because some students have hidden contraband in their underwear (crotching drugs) is insufficient to form a justification for expanding the search of the scope. The Court wanted more than just “general background possibilities” as a basis for the intrusive search.

A second issue associated with the scope of the search is the degree of danger associated with the contraband. Justice Souter writes, “nondangerous school contraband does not raise the specter of stashes in intimate places” and “what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity.”13 The High Court seems to say that had the contraband been more dangerous than prescription strength Ibuprofen, the scale of necessary evidence of suspicion for a strip search may slide more towards the school authorities’ ability to justify the expanded scope.
12 Id. at 11. 13 Id. at 10.

The strip search of a student is not a trivial matter. The Supreme Court appears to carve out a special place for it in the possibly scope of a search. The Court states, “The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.”14

Implications for Educators

There are three walk-away implications from Safford. First, school officials must be able to articulate specific evidence as to why the strip search for contraband will reveal the suspected drugs/weapons. There must be articulable reasons for why the contraband is hidden in intimate places beyond a generalized notion of that is where they could be found. A strip search is in a category of its own. Second, school officials have been put on notice by the Supreme Court that the strip search of a student can violate the student’s constitutional rights. Therefore, qualified immunity for liability will no longer be available to educators thus increasing the chances of individual liability for their actions. Third, the more dangerous the contraband the greater likelihood of the scope being found to be constitutional. This also means that strip searches for the benefit of a third party, such as missing money will come to the courts with a greater degree of scrutiny.

Clearly, administrators and other school officials must approach strip searches with extreme caution. The Supreme Court has focused strip searches with a critical eye. Has the administrator demonstrated that heightened due diligence was used to reasonably ascertain that suspected contraband will be found hidden in intimate places before students were required to expose those places? In other words, does the content of the suspicion match the degree of the intrusion?15 Has the school official weighted the severity of danger with the expanded scope of the search? The Supreme Court has not necessarily given a red light to all strip searches, but the caution light has been lit.

The Supreme Court found a reasonable place for both liberals and conservatives, with the exception of Justice Thomas who considered the search to be constitutional,16 to protect public school students from strip searches without first finding that there is reasonable and direct suspicion to make the search more intrusive. The school officials were found to not be liable in this case, but all school officials have now been served notice to tread lightly in this area.

14 Id. at 11.
15 Id. at 9. 16 Justice Thomas asserts that “the majority has confirmed that a return to the doctrine of in loco parentis is required to keep the judiciary from essentially seizing control of public schools.” (slip op. at 22 (Opinion of Thomas, J.)).


Policy Brief #15-01

August 2015

Todd A. DeMitchell, Ed.D.
John & H. Irene Peters Professor of Education
Department of Education & the Justice Studies Program
University of New Hampshire

Richard Fossey, J.D., Ed.D.
Paul Burdin Endowed Professor of Education
Chair, Department of Educational Foundations & Leadership
University of Louisiana at Lafayette

Ryan Kaplan, M.A.T., Ed.S.
American School
Milan, Italy

Department of Education
University of New Hampshire

Division of Educational Studies
engaged scholarship

Professional Graduate Study at a Research University
With Recognized Scholars and Professional Practitioners

*This Policy Brief is not intended to offer legal advice. It is intended to be part of a discussion on how educators can confront the legal challenges of leading schools and school districts.


“Since much of the cyberbullying takes place off campus, the question becomes whether the school can regulate student speech at all times and in all places.”**[1]**

Should schools assert disciplinary authority over its students, 365/24/7? Some would argue yes, they should especially when it comes to cyberbullying. But, what does it mean if a school asserts such disciplinary control over its students for off-campus conduct unrelated to the school? For example, a federal district court in Pennsylvania overturned the discipline of a student for trash talking online about another school’s volleyball team and players. The court found that the discipline of students away from school and unrelated to school activities provided “unrestricted power to school officials.”[2] If the school asserts authority over students anywhere, any time, and any place does it assume a concomitant responsibility to those students anywhere, any time, and any place? Furthermore, the school must balance its commitment to respect and protect the constitutional rights of its students while also instituting appropriate discipline and providing a safe environment for all. Achieving the proper balance is not easy, especially when the requirements of New Hampshire state law regarding bullying[3] overlay the decisions of school administrators who must achieve that balance on a public high wire without a safety net.

This Policy Brief will review three well-known Court of Appeals cases involving student off-campus Internet speech and offer advice as to how to respond to the challenge. First, we will lay a foundation of the United States Supreme Court cases on public school student free speech rights.

I. The Supreme Court and Student Free Speech Standards

In Tinker v. Des Moines Independent Community School District[4], the Supreme Court ruled that students have a constitutional right to free speech under the First Amendment, a right which they do not give up “at the schoolhouse gate.” The Supreme Court declared that a public school student’s right to free speech can be curtailed under two circumstances. First, a school may regulate student speech that “impinge[s] on the rights of other students.”[5] Second, schools can prohibit student speech that would result in substantial disruption or material interference with school activities.”[6] School authorities may also act if they can reasonably forecast a material and substantial disruption resulting from the speech.

After deciding Tinker, the Supreme Court addressed the free speech rights of public-school students in three more cases. In Bethel School District No. 403 v. Fraser**[7]**, the Court ruled that schools could ban student speech that is lewd, profane, or indecent. In Hazelwood School District v. Kuhlmeier**[8]**, the Court ruled that schools could censor student speech that is school sponsored. And in Morse v. Frederick**[9]**, the Court held that schools could ban student speech that advocates the use of illegal drugs. All three decisions narrowed the scope of Tinker somewhat, but Tinker’s core principle—that students have a constitutional right to freedom of expression while at school—remains undisturbed.

II. Kowalski v. Berkeley County Schools

Kara Kowalski, a senior at Musselman High School in Berkeley County, West Virginia, was suspended from school for five days. She also received a 90-day “social suspension,” which prevented her from attending school events in which she was not a direct participant. She was also prevented from being crowned the next “Queen of Charm” in the school’s Charm Review, and she was dismissed form the cheerleading squad for the remainder of the school year.[10] The school administrators based their discipline on a violation of school policy against harassment, bullying, and intimidation after concluding that Kowalski had created a “hate website.”[11]

Kowalski had created and posted a webpage called “S.A.S.H.,” which stood for “Students Against Sluts Herpes.”[12] The MySpace site primarily ridiculed, through text and pictures, a fellow student and encouraged students to disparage and even slander that student, a schoolgirl identified by the court only as "Shay N." An invitation was sent to approximately 100 people on Kowalski’s “friends” list, with about two dozen joining the group. As a rationale for her speech, she alleged that she hoped that she would make other students “actively aware” of sexually transmitted diseases, a topic at her school. Kowalski brought suit asserting that her speech was not school-related and was private out-of-school speech. She further asserted that her punishment resulted in her social isolation and “cold treatment” from teachers and administrators.[13]

The federal district court granted summary judgment for the defendant school district. The court found that the school had the authority to discipline Kowalski for her off-campus communication, which was created for the purpose of inviting others to participate in “disruptive and hateful conduct” which caused disruption in the school.[14] Kowalski appealed.

On appeal, the Fourth Circuit Court of Appeals upheld the school’s sanctions, finding that Kowalski’s online discussion board on MySpace had encouraged students to disparage and even slander a fellow student. Such behavior, the Fourth Circuit ruled, violated the school district’s policies against bullying and harassment and interfered with the victim’s ability to learn. Thus, in the Fourth Circuit’s view, the school district had ample authority to discipline the offender, who had previously been recognized as an outstanding student. (She had, after all, been named “Queen of Charm” at her school.)

III. J.S. ex rel. Snyder v. Blue Mountain School District

The target of the off-campus cyber harassment in the Kowalski case was a student. Around the same time, the Third Circuit Court of Appeals heard two cases en banc involving student off-campus speech directed at educators. The first case, Snyder v. Blue Mountain School District,[15] involved the activities of J.S., a middle school student. J.S.’s principal, James McGonigle, disciplined J.S. twice (December 2006 and February 2007)[16] for dress code violations. On Sunday, March 18, 2007, J.S. and her friend K.L. created a fake MySpace profile of McGonigle. The profile was created at home on J.S’s parents’ computer. Principal McGonigle was not named nor was the school. However, McGonigle’s official picture from the school’s website was posted.[17] The profile was limited to about twenty-two of J.S.’s fellow students. The schools in the school district blocked access to MySpace so no Blue Mountain students could access the fake site at school.[18]

The fake site was presented as a “self-portrayal of a bi-sexual Alabama middle school principal named ‘M-Hoe.’”[19] The profile contained vulgar language, profanity, “and shameful personal attacks aimed at the principal and his family.”[20] The principal obtained a copy of the profile and summoned both J.S. and K.L. to his office where J.S. eventually admitted that she created the website. Her parents were summoned to the office. Both J.S. and her mother apologized and wrote letters of apology to the principal and his wife. J.S. was suspended from school for ten days and was prohibited from attending school dances.[21] J.S. and her parents brought suit on March 28, 2007 in federal district court.

The district court ruled in favor of the school district. The court considered J.S.’s fake MySpace profile to be “vulgar, lewd, and potentially illegal speech.” Moreover, in the district court’s view, the profiler had created at least “some disruption” at the school, although perhaps not a “substantial disruption” as defined Tinker. [22] The court granted summary judgment for the defendant school district,[23] and J.S. appealed.

The Third Circuit sitting en banc reversed the district court’s grant of summary judgment. The appellate court applied Tinker’s material and substantial disruption test. As the lower court found, the website had not created a substantial disruption and there was no forecast of a substantial disruption. The “undifferentiated fear or apprehension of disturbance” is not enough to forecast a disruption, the Third Circuit ruled.[24] The court found the website profile to be “so outrageous that no one could have taken it seriously.” Thus no forecast of substantial disruption was possible.[25] In short, the Third Circuit ruled, Tinker could not be relied upon to support the school district’s discipline for the off-campus online.[26]

Next the court turned to the argument that J.S.’s speech was lewd, vulgar and offensive under the Fraser standard. The court asserted that this argument “fails at the outset because Fraser does not apply to off-campus speech.”[27] It is instructive to note, for purposes of this discussion on athletes’ and honor society members’ out-of-school behavior, that the court found that a rule that allows school authorities to punish students for their speech, “that takes place anywhere, at any time, as long as it is about the school” and is deemed offensive by the school authorities, would “vest school authorities with dangerously overbroad censorship discretion.”[28] According to this court, extending control over student’s private lives must have limits, at least when it comes to speech.

IV. Layshock ex real. Layshock v. Hermitage School District[29]

The Third Circuit vacated the decision of the three-judge panel in the Layshock case as it did in J.S. ex rel. Snyder v. Blue Mountain School District. The three-judge panel decisions in both Snyder and Layshock had resulted in a split in the circuit and a rehearing en banc was ordered to resolve the apparent split. The original panel in Layshock affirmed the district court’s decision that the school district had failed to establish a sufficient nexus between the student’s off campus expression and a substantial disruption.[30] The Third Circuit resolved the split between panels by reversing in Blue Mountain, as discussed above, and affirming Layshock, discussed below.

Justin Layshock was a senior at Hickory High School in Hermitage, Pennsylvania. In December of 2005, he used his Grandmother’s computer at her home during non-school hours to develop and upload onto MySpace a “parody profile,” in his words, of his principal, Eric Trosch.[31]

Justin answered "tell me about yourself" profile questions as follows:

Birthday: too drunk to remember

Are you a health freak: big steroid freak

In the past month have you smoked: big blunt

In the past month have you been on pills: big pills

In the past month have you gone Skinny Dipping: big lake, not big dick

In the past month have you Stolen Anything: big keg

Ever been drunk: big number of times

Ever been called a Tease: big whore

Ever been Beaten up: big fag

Ever Shoplifted: big bag of kmart

Number of Drugs I have taken: big[32]

Justin accessed his fake profile on December 15th in his Spanish classroom. He showed it to classmates but did not claim authorship. Six days later the school authorities learned that Justin had created a website. Justin apologized and wrote a letter of apology, which Trosch considered to be respectful and sincere. Nevertheless, Justin was suspended for ten days, placed in the Alternative Education Program, banned from all extracurricular activities, including the Academic Games and tutoring middle school students in French, and was not allowed to participate in his graduation ceremony. The Third Circuit noted the irony that Justin’s website was the least vulgar and that he was the only student to apologize for his actions, and he was the only one to be punished.[33] The Layshocks brought suit alleging that Justin’s free speech rights were violated.

The Third Circuit reviewed the leading student free speech cases. Within this context, the appellate court noted that the district court had found that a sufficient nexus between Justin’s speech and a substantial disruption in the school was not established.[34] The schoolhouse gate, the court asserted, is not without limits, and student speech, which can be sanctioned inside the schoolhouse gate, may be protected if it takes place outside the schoolhouse gate.[35] This distinction is important. The court further wrote:

It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when she/he participates in school sponsored activities.[36]

There was no disruption that resulted from the off-campus behavior of posting a fake profile of the school principal, the court pointed out. Furthermore, the court would not grant school districts unlimited authority to punish students for off-campus behavior that was not related to a school activity and was not substantially disruptive to the school environment. Essentially, the Third Circuit Court of Appeals, sitting en banc, enforced the concept that the schoolhouse gate separates the school environment from the outside environment for purpose of determining a student’s free speech rights. The school’s authority to control students’ off-campus speech, absent some disruption inside the schoolhouse gate or participation in a school-sponsored event, are extremely limited, according to the Third Circuit’s analysis.[37]

V. Finding the Balance

Two things standout in the analysis of these three appellate cases. First, in Kowalski the court was more willing to find harm. The speech in Kowlaski was aimed at a student and not at an educator, the targets of the other two cases. Consequently, the court may have been more willing to protect a student than to protect an adult educator. Second, the courts looked for a nexus, between the off-campus student speech and a corresponding detriment or material and substantial disruption of the school, using the Tinker standard. The Kowalski case found a material and substantial disruption, while J.S. and Layshock did not.

All three used the Tinker test with different conclusions. Clearly, the facts of each situation were critical. In J.S. and Layshock there was anger and embarrassment on the part of the targeted educators, there was no showing that instruction was disrupted or that there was a rash of discipline problems associated with the postings. In Kowalski, mean-spirited, hateful language directed at a student led to harassment and bullying.[38] However, and possibly more in line with J.S. and Layshock, a federal district court judge in J.C. v. Beverly Hills Unified School District, held a YouTube posting described a thirteen-year-old student as a “slut” and a “piece of shit.”[39] Even though the student became hysterical, the court concluded that there was no evidence that the posting substantially disrupted the work of the school.

When confronted with allegations that a post has disrupted the school there a few factors to keep in mind. These suggestions apply to the mean-spirited, vulgar, demeaning attacks and not to true threats that must be dealt with swiftly and effectively to maintain safety of the campus and its members. The following are some issues to address before discipline takes instituted. And, of course, apply your findings to your school board policy.

  1. 1. Was the online material developed and posted online using the schools equipment? If yes, the school has a stronger hand in instituting discipline.
  2. 2. If posted away from school using private equipment, the principal must ascertain whether there was a material and substantial disruption that occurred.
  3. 3. The disruption must be material and substantial, hurt feelings by themselves typically do not meet this high standard.
  4. 4. Questions to ask and evidence to seek regarding the questionable posts include.
    1. A. Were teachers’ lessons disrupted by their students’ unruly behavior in response to the posts, such as being disrespectful, disrupting instruction, and/or altercations? If yes, document these instances of disruption and how they were related to the post. How do the disruptions compare with a normal day? If they exceed the norm, they may point to a substantial disruption as a result of the questionable Internet speech.
    2. B. Were passing periods, recesses, beginning or ending school marred by disruption that can be associated with the posts?
    3. C. Was there an upsurge in parent complaints directly related to the posts?
    4. D. Were teachers negatively affected and how did the posts affect them?
    5. E. Has similar behavior in the past been allowed to occur without a disciplinary response? If yes, how is this situation different?

The principal who receives information about off-campus originated questionable posts will most likely be under pressure to do something about it; to discipline the students for their harmful speech. There will be some who will also expect the principal to protect the free speech of students. The principal must balance both of these competing and legitimate concerns. A well thought out investigation plan that seeks evidence of a material and substantial disruption before disciplinary action is taken achieves balance.

However, as former principals K-8 and 9-12, and as a school law attorney representing school districts, we know how hard these types of situations can be. There is no fast, easy short cut to maintain balance; it is hard work.

[1] Todd A. DeMitchell, Bullying and the Conundrum of Free Speech in the United States, 20 E.L.J.191, 205 (2011) (Canada).
[2] Flaherty v. Keystone Oaks Sch. Dist., 247 F.Supp.2d 698 (W.D. Pa. 2003).
[3] N.H. Rev. Stat. Ann. § 193-F:3(II)(III) (2010).
[4] 393 U.S. 503 (1969).
[5] Id. at 509.
[6] Id.
[7] 478 U.S. 675 (1986).
[8] 484 U.S. 260 (1988).
[9] 551 U.S. 393 (2007).
[10] Kowalski v. Berkeley County Schools, 652 F.3d 565, 568 (4th Cir. 2011).
[11] Id. at 568-69.
[12] Id. at 567. A classmate, Ray Parson, the first to join, stated that the acronym stood for “Students Against Shay’s Herpes” id. at 568. He joined the group using a school computer during an after-hours class at the high school. Id.
[13] Id. at 569.
[14] Id. at 567.
[15] 650 F.3d 915, (3d Cir. 2011).
[16] Id. at 920.
[17] Id. at 921.
[18] Id.
[19] Id. at 920.
[20] Id.
[21] Id. at 922.

[22] Id. at 923. The court found that a connection to the school was made because (1) the website was about the principal; (2) the intended audience was the students at the school; (3) a paper copy of the profile was brought to school; (4) the picture of the principal was appropriate from the school’s website; (5) J.S. created the website because she was angry about school discipline that the principal meted out to her; (6) she lied about her involvement; (7) while no “substantial disruption under occurred “there was some disruption” and (8) the profile was viewed by the principal at school. Id. at 923-24.
[23] Id. at 924.
[24] Id. at 930.
[25] Id.
[26] See, e.g., Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 291 (5th Cir. 2014) in which the Fifth Circuit Court of Appeals held that the Supreme Court’s ‘student-speech’ cases, including Tinker, do not address students’ speech that occurs off campus and not at a school-approved event.”
[27] J.S. v. Blue Mtn. Sch. Dist, 650 F.3d at 932. Writing further, the court stated, “Thus, under the Supreme Court’s precedent, the Fraser exception to Tinker does not apply here. In other words, Fraser’s ‘lewdness’ standard cannot be extended to justify a school’s punishment of J.S. for use of profane language outside the school, during non-school hours.” Id.
[28] Id. at 933.
[29] 650 F.3d 205 (3d Cir. 2011).
[30] 593 F.3d 286 (3d Cir. 2010).
[31] Layshock v. Hermitage Sch. Dist., 650 F.3d at 207-08. The fake web site used a copied picture of Principal Trosch taken from the school district’s website. Id.
[32] Id. at 208. Three other profiles were posted by students in mid-December 2005. “Each of those profiles were more vulgar and more offensive than Justin’s.” Id.
[33] Id. at 210.
[34] Id. at 214.
[35] Id. at 216.
[36] Id.
[37] The concurring opinion emphasized that both the J.S. and Layshock cases affirmed that Tinker was applicable to student off-campus speech, Id. at 220 (Jordan, J. concurring). Judge Jordan, joined by Judge Vanaskie, voiced concern that the two en banc rulings might send an “anything goes signal to students, faculties, and administrators of public schools.” Id. at 222. “In short, nothing in the First Amendment requires administrators to check their common sense at the school house door.” Id.
[38] See Richard Fossey, Kowalski v. Berkeley County Schools: A School Can Discipline a Student for Creating a “Students Against Sluts Herpes” Website Without Violating the First Amendment, TEACHERS COLLEGE RECORD 5 (Aug. 29, 2011) ID NUMBER: 16520 (writing, “Kowalski v. Berkeley County School District is an extremely important decision, because it recognizes that online bullying and harassment can disrupt a school’s learning environment even when it occurs off the school grounds.”).
[39] 711 F.Supp.2d 1094, 1122 (C.D. Cal. 2010).