May 2014 Court Report: prayer during meetings, corporal punishment, posting vacancies, Alabama Accountability Act, search of cell phones, Title IX-sexual orientation
US Supreme Court
Town of Greece, NY v. Galloway, 2014 WL 1757828 (U.S. May 5, 2014)
In this pivotal case, the US Supreme Court addressed the common practice of governmental bodies setting aside a time for prayer during meetings. While this particular case involved a town board meeting, the ruling effectively impacts all types of local governmental entities that wish to have an opening prayer.
In this case, the monthly board meeting opened with a roll call, the pledge and a prayer from a selected local clergy member. While clergy from any religion could be selected to pray, almost all of the local congregations were Christian, which resulted in the selected clergy being Christian as well. Two local residents sued the town claiming that the town was in violation of the Establishment Clause and asked, not that the prayers stop, but that they be generic, inclusive and not promote any particular faith. The district court ruled in favor of the town finding that all religions were welcome to participate in the prayer program and that the town had no responsibility to specifically seek out other clergy to achieve diversity. The district court also held that there was no requirement that the prayer be nonsectarian. The plaintiffs appealed to the Second Circuit. The Second Circuit reversed the decision and found the prayer program unconstitutional. The Court held that, in light of the town’s failure to actively seek out a diverse message, a reasonable observer would assume that the town was endorsing Christianity. The Court found no fault in the sectarian nature of the prayers, but rejected the consistently Christian nature of the prayers. Lastly, the Court rejected the practice of inviting participants to bow their heads or say “let us pray” because it would place non-Christian participants in an awkward position. The town appealed to the US Supreme Court which agreed to hear the case.
In a 5-4 ruling, the US Supreme Court reversed the Second Circuit and held that the prayer program does not violate the Establishment Clause. The Court held that legislative prayer has been previously upheld and does not require prayer of a nonsectarian nature. Moreover, the Court noted that “adult citizens” had the ability to “tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith”. To the extent school board meetings are typically attended by students as well as adults, there is a possibility that the Supreme Court could carve out some exception to this ruling in the future, but this opinion should serve as effective precedent for school boards.
US District Courts
Nowell v. Dale County Board of Education, 2014 WL 1652361 (M.D.Ala. Apr. 24, 2014)
In this case, the parents of a sixth grade student sued the Board, the principal and the vice-principal after he was subjected to a paddling at school. Prior to the paddling, the administrators contacted the parents who asked that the child not be paddled until they could discuss the matter further. According to the parents, the administrators agreed to delay the punishment, but paddled the child anyway. The child claims he was struck twice by another male employee and that he suffered pain and bruising as a result. The parents complained to the superintendent and the board, but their grievance was denied based on the fact that the punishment was carried out in accordance with policy. The parents ultimately removed the child from school and sued under §1983 alleging violation of the child’s substantive and procedural due process rights pursuant to the Fourteenth Amendment as well as an Eighth Amendment claim and state law claims.
The defendants moved to dismiss the suit on the grounds that the paddling and other minor complaints did not rise to the level of a constitutional tort. The court recognized that corporal punishment can rise to the level of a substantive due process right violation, but the court required a high standard of “conscience-shocking” conduct. The Eleventh Circuit has determined that the plaintiff must establish that obviously excessive force was used that presented a foreseeable risk of serious injury. To determine if the force was “obviously excessive”, the court looks to the totality of the circumstances, specifically, the need for corporal punishment, a comparison between that need and the level of punishment and the extent of injury. In this case, the court found that the employee’s two strikes were an appropriate punishment and administered in accordance with policy. Moreover, whether the employee struck the child too hard, the injury was not sufficiently severe.
The court also held that corporal punishment in the public school context did not trigger the Eighth Amendment prohibition against excessive punishment. Similarly, the Court rejected the procedural due process claim holding that notice and a hearing was not required before imposition of corporal punishment. Accordingly, the court dismissed all federal claims and declined to hear the state claims. There is no word as to whether the plaintiffs will refile their claims in state court or appeal this decision to the Eleventh Circuit.
Attorney General Opinion
A.G. Op. 2014- --- (May 14, 2014)
Ala. Code §16-22-15 requires superintendents to post a notice of a vacancy for a certain amount of time--7 or 14 days depending on the type of position and timing of the vacancy--before the position is ultimately filled. This request asked if a superintendent could post a vacancy upon receiving notice that an employee intended to leave his or her position, but before the position was officially vacated. This is a relatively common practice across the state which helps superintendents staff positions in a timely manner without having to wait an extended period of time to fill an important position. This opinion determined that the legislature could have limited the timing of when the vacancy could be posted if it intended to do so and approved the practice of posting vacancies prior to a position officially being vacated.
Matters of Interest
C.M. ex rel. Marshall v. Bentley, 2014 WL 1378432 (M.D.Ala. Apr. 8, 2014)
Judge Keith Watkins dismissed the latest challenge to the Alabama Accountability Act last month. The suit was filed by Black Belt middle school students against Governor Bentley, Dr. Bice, the Revenue Commissioner and the State Comptroller alleging that the Act violates the equal protection clause of the Constitution. The Defendants moved to dismiss on the grounds that the Act does not discriminate against any student on the basis of family income or geographical location, but even if it did, the Act has a rational relationship to the state’s interest in providing assistance to students in failing schools. The Court appreciated the educational struggles suffered by students in the Black Belt. It also noted the Act’s attempts to improve the quality of education, as well as its shortcomings. Nevertheless, the court determined that Governor Bentley was not a proper party, that the students lacked standing to challenge the diversion of education money to fund tax credits under the Act and that the Act is rationally related to a legitimate state interest. Accordingly, the court dismissed the lawsuit. The plaintiffs have appealed to the Eleventh Circuit.
• Search of Cell Phones
Riley v. California, Docket No. 13-132 (U.S. 2014) and U.S. v. Wurie, Docket No. 13-212 (U.S. 2014)
The United States Supreme Court is currently considering two cases regarding whether the warrantless search of cell phones by law enforcement violates the Fourth Amendment. While these cases involve law enforcement, the decisions could have an impact on school administrators who seek to search a student’s cell phone. We will update these cases as soon as a decision is reached.
• Title IX-Sexual Orientation
US Department of Education Dear Colleague Letter (Apr. 29, 2014)
The US Department of Education recently issued guidance in the form of a question and answer update to a 2011 Dear Colleague letter regarding student sexual harassment and violence. The updated guidance appears to have been prompted by recent investigations into sexual assaults on college campuses, but has a definite impact on the way K-12 schools handle issues, particularly in the area of protection of students based on their sexual orientation. The updated guidance specifically includes “straight, gay, lesbian, bisexual and transgender students” in the category of those who are protected by Title IX and advises schools to investigate and resolve Title IX claims involving same-sex victims and perpetrators or LGBT students in the same manner as it would handle any other sexual violence complaint. The letter can be viewed in its entirety at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
-Jayne Harrell Williams
Jayne is a shareholder with the law firm of
Hill, Hill, Carter, Franco, Cole & Black in Montgomery, Ala.