Orange County teachers’ attorney sues over union dues

Two Orange County, California teachers are among a group of ten educators across the state who have sued seeking an end to having to pay mandatory California state teachers’ union fees according to their attorney.

The teachers’ argument is that California’s current “agency shop” law violates their First Amendment freedom of expression rights by forcing them to pay $1,000 per year that end up supporting political causes with which they do not agree.

None of the ten teachers are union members. Despite this fact though, all of them are required to pay an amount equal to teacher union dues under a law also known as the “fair share” law. It is premised on the idea that because unions are required to represent all employees, even those not belonging to the union, that all teachers should bear the administrative cost of such representation.

The teachers, through their attorney, are arguing that a 2012 Supreme Court decision suggests that they should not be required to continue to pay. The teachers are trying to extend the logic of 2012’s Knox v. Service Employees International Union, in which a 5-4 Supreme Court majority held agency fees permissible, provided that unions offer an opt-out method.

It is not contested here that teachers in California are indeed afforded an opt-out method. The process though, according to the teacher’s legal counsel, is cumbersome and rarely utilized. Given that decision, how do the teachers hope to win this case? In the 2012 case, conservative justices on the court suggested that they are open to the argument that such fees are inherently unconstitutional. The teachers hope to be able to sway a majority of justices over to that line of thinking.

Currently though, the case is not at the Supreme Court level. It was filed in a federal district court here in California. The attorney believes that the case could end up on the Supreme Court’s docket as early as next year.

Gregory R. Branch, Esq. is an Orange County special education attorney. He represents families in disputes with school districts in Orange, Riverside, and Los Angeles Counties. If you are currently engaged in a special education dispute, please contact his office at (714) 856-1166 or be emailing

District not required to serve ADHD student attending private school

(January 16, 2013) A school district does not have an obligation to provide services to an ADHD child enrolled in a private religious school under current federal disability-rights law.

The United States Court of Appeals for the Fourth Circuit held that Baltimore City Public Schools had no obligation to provided special education services under Section 504 to an 8th grade ADHD student who attended a private Jewish school in Maryland.

D.L., the student around whom the law suit swirled, was diagnosed with ADHD and anxiety as a fifth grade student in 2007. Two years later, Baltimore City Board of School Commissioners (BCBSC) determined that while D.L. did not qualify for services under the Individuals with Disabilities Educational Act (IDEA), he was eligible under Section 504. Upon making this determination though, BCBSC notified D.L.’s parents that it could not provide the student services unless D.L. was enrolled in one of its schools. Since Maryland is a state that does not allow dual enrollment in a private and public school, D.L. would have to withdraw from his Yeshiva and enroll at the local public school.

D.L.’s parents challenged this decision, arguing that Section 504 creates an affirmative duty for school districts to provide services to eligible students enrolled in private schools. The parents’ arguments failed before a hearing officer so they filed suit in the United States District Court of Maryland. BCBSC filed a motion for summary judgment (a motion which basically says that even if D.L.’s parents were to prove all the facts they assert, they would still lose the case as a matter of law) and the parents filed a motion for partial summary judgment. The lower court granted BCBSC’s summary judgment motion and denied the parent’s partial summary judgment motion. The parents filed an appealed that decision to the U.S. Court of Appeals.

In the case, D.L. v. Baltimore City Board of School Commissioners, the parents argued two main points: 1) that Section 504 regulation mandate that BCBSC provide D.L. with a free and appropriate education (FAPE), and 2) that BCBSC’s requirement that the family enroll D.L. in a public school violates their constitutional rights under the First Amendment’s Freedom of Religion clause.

With regard to the first contention, the court recognized that the plain language of Section 504 leaves unclear whether public schools are required to provide services to students enrolled in private schools. 34 C.F.R. § 104.33(a) states in relevant part that districts must “provide each Section 504 eligible student within its jurisdiction with a [FAPE].” The parents contend this language means that public schools have a greater obligation that simply making such education available.

The court reasoned that while the plain language is ambiguous, that further clarification in Appendix A of the regulations where it states in relevant part, “[i]f . . . a recipient offers adequate services and if alternate placement is chosen by a student’s parent or guardian, the recipient need not assume the cost of the outside services.” In looking at this, the court noted that while this shows that a district need not pay for services obtained outside the public school, it leaves open the question of whether such services can be obtained from the school.

Here, the court relied upon a clarification letter by the Department of Education entitled OCR Response to Veir Inquire Re: Various Matters which offers a direct clarification of the disputed regulation. The court noted that where a regulation is ambiguous, courts must grant deference to an agency’s interpretation of its own regulation. In the Vier letter, the DOE stated that “[w]here a district has offered an appropriate education, a district is not responsible under Section 504, for the provision of educational services to students not enrolled in the public education program based on the personal choice of the parent or guardian.” The court applied this language to hold that BCBSC had no responsibility to provide services to D.L. in his private school placement.

In reaching its holding, the court also rejected the parents’ arguments that Section 504’s language should be interpreted broadly since it is a remedial statute. While noting that turth of the parent’s contention that remedial statutes should be broadly construed, the court noted,

“The purpose of Section 504 does not, however, extend as far as Appellants [parents] assert that it should. Section 504 and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice.”

The court next tackled the First Amendment issues raised by the suit. The parents’ suit tried to persuade the court that the Supreme Court’s rulings in Pierce, 268 U.S. 510, and Yoder, 406 U.S. 205, show that requiring D.L. to attend Baltimore public schools was a violation of his First Amendment rights.

The court easily distinguished these cases in that both involved parents being charged under criminal statutes for failure to educate their children in public schools. Here, the parents face no such sanctions and retain free choice as to where their child go to school. The issue was one of payment of services. While it is true that the parents would need to pay additional services that would be free were they to attend public schools, such increased economic burden does not meet the standard of a First Amendment violation. The court noted, “The Supreme Court has explained that a statute does not violate the Free Exercise Clause [First Amendment] merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner.



School districts cannot sue special education parents over use of school vouchers

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The Oklahoma Supreme Court on Tuesday, November 20, decided that the Jenks and Union Public School Districts lack the standing to sue parents over their use of state educational vouchers that pay for their special education students to attend private K-12 religious schools. At issue was the Lindsey Nicole Henry Scholarship for Students with Disabilities Program (LNH) which allows the parent/guardian of a public school student with a disability to exercise their parental option and request to have an LNH Scholarship awarded for their child to enroll in and attend a private school, if the child is on an Individualized Education Program (IEP) prior to the request and has spent the previous school year in attendance at a public school in the state by being reported by a school district for funding purposes during that year.

The issue at hand is First Amendment separation of church and state issues, not special education law. The two districts believe that the LNH scholarships violate numerous principles of both the Oklahoma State Constitution and the federal United States Constitution. In relevant part, the Oklahoma Constitution reads

No public money or property shall ever be appropriated, applied, donated or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.


(Constitution of the State of Oklahoma; Article II, Section 5)

The Court’s decision does not address the constitutionality of the law but rather holds that the districts do not have the legal standing necessary to sue the parents of the children in the case. The basis for this ruling is that the districts are not suffering harm. In the decision, the Court states, “the funds at issue are not taxes from taxpayers in the districts’ county revenue streams that a county assessor is improperly reducing or disposing of, but part of the Legislature’s general grant to the districts, through the State Department of Education. Because the school districts are not the ones charged with the duty to provide free public education, the Legislature’s withholding of certain funds, even if it is unconstitutional, does not violate a constitutionally protected interest of the school districts themselves, because they are merely the Legislature’s vehicle.”

The decision came down 7-2. The two dissenting justices contended that the constitutional issues of the case had been fairly joined and should be considered. The ruling reverses a decision by a Tulsa district judge that ruled the program unconstitutional.

The districts are currently considering how to proceed in light of this decision.

Click here for a timeline of the legal battle. (Scroll to bottom of article.)



Texas judge issues injunction allowing cheerleaders to display religious banners


Kountze High School banner

A Texas judge issued an injunction allowing cheerleaders to display religious banners. This temporary injunction will allow Kountze High School cheerleaders to continue to display banners stating Christian messages at their football games. The temporary injunction replaces a temporary restraining order that had put in place to allow the cheerleaders to continue the use of their banners.

The issuance of this order by no means puts an end to this dispute. Judge Steven Thomas set a trial date June 24, 2013, to make a final decision on the merits of the lawsuit. Cheerleaders have had run through banners reading  “I can do all these through Christ who strengthens me,” and “If God is for us, who can be against us?”

The main issue in this case appears to be the nature of the cheerleading group itself. Rather than being a state sponsored activity, the cheer group has little to do with the school other than the students attend it. They pay for their own uniforms, utilize their parents as coaches, and lead their own practices during non-school hours. While there are faculty advisers, the

two faculty “sponsors,” Tonya Moffett and Beth Richardson, who are also parents of two cheerleaders, supervise the team to ensure a safe, respectful, and orderly environment. The faculty sponsors are present at the practices in only a nonparticipatory, custodial capacity.
Additionally, the decision seems to place weight on the fact that the cheerleaders rotate the responsibility of rotating the responsibility of what appears on the message. Thus, their attorneys are able to argue the messages are personal rather than group sponsored speech.
Furthermore, no district monies are expended for the purchase of supplies. The banners are not required by the school.
Finally, some years ago Texas passed a law, the Religious Views Anti-Discrimination Act of 2007, which was passed with the intent of helping to protect student religious speech by requiring school districts to adopt disclaimers separating student speech at school-sponsored events from school sponsored messages.

Interestingly, at the time of the mid-October decision, Kountze High’s football had a 5-1 record, since the decision came down, the Lions have gone 0-4. Given the religious stature of Texas high school football itself, one wonders whether Kountze High cheer leaders might not voluntarily discontinue their lawsuit.


Kountze High School cheerleader run through banner (Click for video)

8th Circuit holds student racist/sexist blog speech unlikely to be protected

Overturning a preliminary injunction issued by a lower court, the U.S. Court of Appeals for the Eighth Circuit handed down a ruling this week that a blog created by Missouri high school students containing both sexist and racist speech was unlikely to be First Amendment protected speech.

Lee Summit North High School

Lee Summit North High School

The three judge panel unanimously overturned a district’s court’s preliminary injunction which had allowed the Lee’s Summit North High School student creators of a blog to return to school pending a court decision on whether the speech on the blog was protected.

In the case, two twin brothers, Sean and Steven Wilson, created a website called NorthPress, part of which contained a blog. According to the Wilson brothers, the purpose of the site was to “discuss, satirize, and ‘vent’ about events at Lee’s Summit North.” Because they used a Dutch domain site, U.S. users were prevented from finding the website using a search engine. However, any person could access the website provided they knew the website address: NorthPress was not password protected.

During December, 2011, the twins added posts to the NorthPress blog which included a variety of sexist and racist content. The sexist comments went to far as to mention a fellow female student by name. The racist posts discussed various altercations that had taken place at the school and mocked black students.In addition, a third unnamed student added another racist post.

The exact degree to which the speech was off-campus was a matter of dispute in the case. It was shown during the case that one of the Wilson twins used a school computer for the purpose of uploading computer files necessary for the creation of their website. District records also show that the website was accessed two other days, but District was unable to prove who accessed the site or whether they merely looked at the site or contributed files to it.

In additional testimony, the Wilsons stated that they only told five or six other students about the site, but by December 16, 2011, the student body was definitely aware of the site’s existence, and school administrators became aware of it that same day. Following a brief investigation, the school suspended the two boys for ten days and referred them for expulsion. There ensued a hearing, then an appeal by the Wilsons, then a second hearing at the conclusion of which the Wilsons were suspended from Lee Summit North but were allowed to attend Summit Ridge Academy. The Wilsons filed suit seeking a preliminary injunction in order to lift the suspensions.

The District Court quickly conducted a preliminary injunction hearing. In the trial, the Wilsons argued that their website was satirical rather serious and that they were not racist. Further, they argued that their website had not caused disruption at the school. The boys testified that December 16, was pretty much like every other day at Lee Summit North. Their additional testimony related to the fact that attending Summit Ridge Academy was deny them the opportunity to possibly attain a band scholarship and also to take honors level classes.

During this hearing the District argued that student body wide discovery of the site had indeed caused substantial disruption. District argued that returning the boys to Lee Summit North would cause further disruption at the site and could endanger the boys’ safety.

A federal district judge ruled in the boys’ favor, holding that while the speech may not be protected, the boys were suffering irreparable harm by not being able to attend their regular school. Based on the March ruling, the boys were allowed to return to Lee Summit North.

The school district immediately appealed the lower court’s ruling. On October 17, 2012, the 8th Circuit issued its opinion in  S.J.W. v. Lee’s Summit R-7 School District, finding for the district and overturning the original preliminary injunction.

The court’s decision is in line with a number of Federal Courts of Appeals holdings addressing student off-campus speech which creates a campus disruption. Applying the Tinker standard, the court reasoned that here, while it was contested whether or not the speech occurred on campus or not, the speech had as its target the students of Lee Summit North. This, coupled with the fact that the speech had been found to have been responsible for causing a substantial campus disruption, meant the students’ speech was unlikely to be protected under the First Amendment, and thus the students’ discipline should remain in place pending an actual hearing to decide the issue.

In addressing the issue of irreparable harm to the twins, the 8th Circuit held that the school the boys were to attend was accredited and would allow the twins to graduate on time. Further, on the issue of college scholarships, the Court held that potential scholarships were too speculative in nature to constitute harm to the boys.

The case brought up another novel legal issue which the Court was able to dispatch without ruling on its merits. Attorneys for the twins argued that they could succeed on the merits of their case under the Communications Decency Act (CDA) which states in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The gist of their argument was that as publishers of NorthPress,the boys were merely providers of a computer services, NorthPress, and they cannot be held responsible for the content of the third student’s racist post, which they contended during the case that if there was a disruption, it was due to that post, not theirs.

The three judge panel made no determination as to whether the CDA applied here, since the point was moot. The lower court had found that the twin’s post had been disruptive to the school, not just the single post of the third student. This being true, the CDA would not apply.

In the end, the decision of what is to happen to the boys pending a final decision on their case was left to the lower court.

Guidelines created balancing student free speech and anti-bullying law

The American Jewish Committee has drafted a set of guidelines contained in an 11-page pamphlet entitled Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,”  The guidelines have received a broad consensus coalition including groups such as the American Association of School Administrators, the Muslim Public Affairs Council, and the Religion Action Center of Reform Judaism.

The pamphlet is an attempt to provide some clarity on an issue that has been a thorn in the side of schools for some time. In recent years, a broad range of educational institutions have been pushing the Supreme Court to take up a free speech in school case. Administrators correctly argue that the outdated Tinker standard no longer works in the social media/bullying age. As quoted by the Huffington Post, Francisco Negron, the National School Boards Association general counsel, “The pamphlet can fill a need the judicial system has not.”

Negron is further quoted as saying the 11-page pamphlet outlines the difference between “what constitutes a personal attack, and the expression of an idea.” Based on current law governing free speech in schools, the guidelines attempt to balance the sometime competing interests of free speech and anti-bullying policy.

The guidelines offer a balanced perspective that seeks to foster the healthy expression of ideas while disallowing personal attacks against individual students and/or student groups.

One important sentence reads…

Words that convey ideas are one thing: words that are used as assault weapons quite another.

Other important excerpts include…

• …schools should consider incorporating proactive measures as part of their response, apart from discipline and suppression of speech.
• Public schools should not be satisfied with merely avoiding legal liability for harassment or bullying.
• Schools themselves are free to communicate in a non-coercive way their own views on subjects that generate controversy in the community…

As would be expected from guidelines endorsed by such a broad spectrum of groups, the core message of these suggestions is one of education and tolerance. The central message is for administrators to allow political speech, but to deal with speech directed toward individuals or speech which is likely to cause substantial disruption on campus.

Profanity laced threats by school rapper not protected by 1st Amendment

A Mississippi federal district court summarily dismissed a case against a school district and its officials for disciplining a student who had posted an invective and threat-filled rap song on his Facebook page and on YouTube. Taylor Bell, a senior at Itawamba Agricultural High School, composed, sang, and recorded a rap song that he then posted on to Facebook so that it could be viewed by his over 1,300 Facebook friends and then went on to publish the song on YouTube. The vulgar song accuses two of the school’s coaches of having inappropriate contact with underage female students. According to court documents, “the last two verses include the phrases:(1) ‘looking down girls’ shirts / drool running down your mouth / messing with wrong one / going to get a pistol down your mouth’ and (2) ‘middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga.’”

Taylor Bell, former Itawamba High School student

In Bell v. Itawamba County School Board, Judge Neal Biggers upheld the seven day suspension and administrative transfer levied by the school upon discovering the song. Applying the Tinker standard, the court found that

Taylor Bell’s song caused a material and/or substantial disruption and it was reasonably foreseeable that such a disruption would occur. The song is not protected by the First Amendment, and the school did not err in punishing Bell for publishing it to the public. Therefore, Taylor Bell’s claim that his First Amendment rights were violated by the school should be dismissed with prejudice.

This is another in string of federal cases where student off-campus speech has been held actionable by the courts. Under Tinker, “conduct by a student, in class or out of it” which “materially disrupt classwork or involves substantial disorder or invasion of rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” The court noted that Tinker‘s material or substantial disruption standard has been expanded to allow speech to be regulated where such issues are only foreseeable, not having yet occurred.

In reaching its holding the court applied the following test:

(1) whether Taylor Bell’s song caused or tended to cause a material and/or substantial disruption at school or (2) whether it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption at school.

Applying this test, the court found that the song had created actual disruption at the school. Coach Wildmon, one of the coaches about whom the song was penned, first heard about it while teaching his class. His wife had learned and heard of the song and texted him from her cell phone. Upon receiving the text, the coach turned to three seniors sitting in his class and asked if they had heard the song. Replying affirmatively, one of the students played the song for him using his cell phone. The coach testified that he felt threatened by the lyrics threatening to kill him in the song and that his “teaching style had been adversely affected” due to his belief that now students suspected him of inappropriate behavior.

The court also found that disruption was foreseeable where a

public high school student’s song (1) that levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and (2) is published on to at least 1,300 “friends,” many of whom are fellow students, and the unlimited internet audience on, would cause a material and substantial disruption at school.

Gregory R. Branch is an educational attorney in Orange County, California. If you feel that your child has been unconstitutionally disciplined for exercising their right to free speech, please contact Mr. Branch at or at (714) 856-1166.

The intersection of religion, free speech, and anti-bullying efforts

The First Amendment guarantees that public school students have the right to free speech. It also gives them the right to practice their religion. But when does a student’s right to express his personal religious beliefs go too far and cross the line into bullying?

Read the rest of the excellent article on the intersection between the First Amendment and student speech here.

Supreme Court will not hear student free speech cases

Despite what most educational law observers feel is a great need, the Supreme Court declined to take up three student free speech cases that were sent to it. All of the cases involve students being disciplined for speech that happened off campus and on the internet. Read the rest of my article here.

Candy cane case reopened just three days before Christmas

There will be no celebrating of Christmas with candy canes by two Texasarea principals this holiday season. Yesterday, an appeal was filed with the U.S. Supreme Court seeking to overturn the 5th U.S. Circuit Court of Appeals decision granting the educators qualified immunity in the so called “Candy Cane Case.” It is doubtful that it is coincidental that the appeal was filed just three days prior to Christmas in a move that is sure to increase publicity for this case.

Read the rest of my article on Morgan v. Swanson here.

If you feel that your child’s free speech rights are being infringed, please call me at 714-856-1166. You can also contact me through my firm’s website