>> From the Library of Congress in Washington, D.C. [ Silence ] >> Today's program is presented by the John W. Kluge Center at the Library of Congress. The Kluge Center is a vibrant scholar center here on Capitol Hill that brings together scholars and researchers from around the world to stimulate and energize one another, to distill wisdom from the library's rich resources and to interact with policy makers and the public. We offer opportunities for senior scholars as well as post and pre-doctorate scholars to do research in the Library of Congress collections and we also offer free public lectures, conferences, symposia and other programs as well as administer the Kluge Prize, which is a recognized-- recognition for lifetime achievement in the humanities and social sciences. So, for more information about the scholars in residence, the programs that we offer and the fellowship opportunities for scholars I urge you to take a brochure or a handout on your way out. And also to sign up for our RSS email list to receive future notifications about events and fellowship opportunities. All this information is on our website loc.gov/kluge, K-L-U-G-E. Today's program is titled, "A Teacher's Guide to Education Law" and our speakers are J.C. Blokhuis and Professor Jonathan Feldman. And they'll be discussing two new scholarly works that they have put out, "Education Law Fifth Edition," which is this book and which we have available on the way out if you're interested in purchasing it as well as "A Teacher's Guide to Education Law Fifth Edition." And the books cover issues of student rights, discipline, negligence, discrimination, special education, teacher's rights, hiring and firing. They run the full gamut of issues. I urge you to take a copy on your way out. J.C. Blokhuis is an Assistant professor of Social Development Studies at Renison University College and University of Waterloo and he's a 2013 Kluge Fellow. So, he was a scholar and residence with us for six months during the course of this past year, five months earlier in the year and then one month returning in December. He is-- his newest books, newest projects are sort of borne out of the research that he has done while he was here. And this is one of those gratifying parts of the Kluge Center and the fellowships and residence that we have is that when scholars come back to showcase the scholarly works that they've produced and the books that they've written based on research that they have done. And so J.C. joins a long list of distinguished scholars who have written and published works based on research here done at the Kluge Center in the Library of Congress. He has received his JD from the University of Ottawa and his PhD from the University of Rochester. And his areas of teaching and research include cooperative public education law and policy, children's rights and custodial authority. Jonathan Feldman is a visiting Clinical Professor of Law at Cornell University Law School. He received his JD from New York University School of Law. He has worked as a public interest lawyer for over 25 years including 16 years at the Rochester office of the Empire Justice Center. And a note about the format of today's programs, our scholars will speak for about 10 minutes each alternating one, two, three, four. That'll take us about 40 minutes and then we'll do a Q&A with the audience, both the scholars and discussion, which I'll moderate. So, without further ado please welcome J.C. Blokhuis and Jonathan Feldman. [ Applause ] [ Moving around ] >> J.C. Blokhuis: Well, thank you very much Jason and thank you everyone for coming today. This is a big book and it would be hard to do justice to its content in 40 minutes. So, we're not going to talk about every chapter in great detail, but a couple of chapters in some detail. I'll begin with the chapters that into which I suppose I put the most material from my research here. As a Kluge fellow I was working on a monograph project entitled, "Public Educational Authority and Children's Rights from a Parens Patriae Perspective" and some of that material found its way into chapters four and five of this book and the companion teacher's guide. Chapter four is student freedom of expression. That's the title. And chapter five is student discipline and both chapters address legal issues relating to the regulation of student conduct in public schools. Now, teachers and school officials have a duty to maintain a safe and orderly learning environment and at the same time as they create and enforce school rules they must be mindful of the fact that limited constitutional rights have been ascribed to students in public schools since 1969. The constitutional rights of students are not coextensive with those of adults however, because most K-12 students are minors. And accordingly public school teachers and school officials are agents of the state, for some purposes at least and parental surrogates for other purposes. So, I mentioned 1969. Well, it was in 1969 that Justice Abe Fortas penned three decision, the most important of which 1969, the Tinker decision, but that was one of three in that period at the-- toward the end of the Civil Rights era in which the Supreme Court through Justice Abe Fortas repudiated the Parens Patriae Doctrine or at least appeared to repudiate it. And again, limited constitutional rights were ascribed to minors in custodial contexts generally. The three cases were Kent v. United States, in Kent and Gault and as I said Tinker and I'll say more about that now. The most important case for school law, Tinker versus Des Moines Independent School District from 1969, that was a case in which limited free speech rights were ascribed to students in public schools. And Justice Fortas wrote quite memorably First Amendment rights applied in light of the special characteristics of the school environment are available to teachers and students. And he added in a kind of a rhetorical flourish, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Now, this was 1969 and Tinker involved two high school students and a junior high school student who were suspended for wearing black armbands to protest the Vietnam War and that was in violation of a rather hastily passed school role. Justice Fortas found that banning this kind of symbolic speech violated students' First Amendment rights. He noted that the black armbands or the wearing of those armbands had not materially or substantially interfered with the requirements of appropriate discipline in the operation of the school and this became the basis for what's now called the Tinker test and the material and substantial disruption test. Now, this-- again 1969 Vietnam War, Civil Rights era, well this was a time when many people believed that discrimination on the basis of age might be every bit as unjust as discrimination on the basis of race or gender. And throughout the 1960s university campuses across the country were riven with protests and sit-ins and so on by college students opposed to the Vietnam War in general and to the draft in particular. And particularly the draft were for young people who themselves at the time could not vote. School officials in Tinker thought to avoid that kind of disruption when they banned the wearing of those black armbands. In any event, in ascribing limited First Amendment rights to students in Tinker, Justice Fortas appeared to conflate pupils, minors wearing armbands in middle schools and secondary schools with students, college students agitating on campuses around the country and this conflation was perhaps understandable, because until a few years later, at least in 1969 the age of majority was 21. So, Justice Fortas did not explicitly define what he meant by the special characteristics of the school environment in Tinker. Instead he cited a canonical statement or what might be regarded as a canonical statement by Curtis Shears and the, "American Bar Association Journal" published several years earlier. Shears wrote the basic right of the juvenile is not to liberty, but to custody. He has the right to have someone take care of him and if his parents do not afford him this custodial privilege the law must do so. It would have been reasonable for Justice Fortas to assume I think in 1969 that most legal practitioners would understand that the special characteristics of the school environment meant or was a reference to the custodial relationship then existing between public school teachers and students. In any event the Supreme Court began retreating from Tinker. And in fact, the Kent and Gault decisions almost immediately after Justice Fortas resigned in-- later in 1969, in fact. And over the next two and a half decades both the Parens Patriae Doctrine, the idea of the state having parental responsibilities to children and the associated in loco parentis concept would regain at least some of their former currency as the court began identifying exception after exception to the Tinker test or the Tinker standard. So, as we note in chapter four beginning in the 1980s a more conservative Supreme Court limited the scope of Tinker by identifying two circumstances when the material and substantial disruption rule did not apply. First the first exception was that in a school sponsored context such as a school assembly or a school newspaper, the leeway that school teachers, school officials would have to regulate student expression would be greater than what might be termed independent student speech and that's how we describe the dichotomy in this chapter. And secondly, the court began to recognize certain categories, additional categories of speech that did not enjoy the protection of the First Amendment in schools. So, I referred to student assemblies and to student newspaper. Well, there are specific cases that are fairly well known in education law and of course, we discuss them in chapter four, the Bethel School District, the Fraser from 1986 and Hazelwood School District v. Kuhlmeier from 1988. In these cases the court emphasized that the constitutional rights of students in public school are quote, not automatically coextensive with the rights of adults in other settings. Hence student speech that does not meet the disruption standard from Tinker need not be tolerated if it's inconsistent with the educational mission of the schools and is lewd or indecent speech at school. This is from the Fraser case, or speech bearing the school's imprimatur as was the Hazelwood case. In recent years what have we seen? Well, this very year B.H. v. Easton area School District added to the fifth edition, the U.S. Court of Appeals for the Third Circuit ruled that students could not banned for wearing those I love boobies bracelets under the indecent standard, indecent speech standard from Fraser or the Tinker standard material and substantial disruption. The courts determined that because a breast cancer awareness campaign could not-- it couldn't be lewd. A national cancer awareness campaign could not be lewd under Fraser and it didn't and hadn't and couldn't substantially disrupt the school environment. Through the 80s and into the 90s the Supreme Court continued to invoke the quote, special characteristics of the school environment, the language of Justice Fortas and Tinker without explicitly stating what Justice Fortas had merely implied. But, that did change in 1996 with Vernonia School District v. Acton. So, that's a case that involves a seventh grader whose parents on his behalf challenge the constitutionality of a school policy mandating random drug testing in-- for interscholastic athletes. It was Justice Scalia who explicitly characterized the school environment in that case in terms of the relationship between public school teachers and pupils describing it, in fact twice describing it as custodial and tutelary. He wrote, the legitimacy of certain privacy expectations vis-a-vis the state may depend on the individuals' legal relationship with the state. Central in our view to the present case is the fact that the subjects of the policy are number one, children or minors who number two have committed, have been committed to the temporary custody of the state as schoolmaster. And then he cited, "American Jurisprudence" section 10, and traditionally a common law and still today unemancipated minors lack some of the most fundamental rights of self-determination including even the right of liberty in its narrow sense. That is the right to come and go at will. They are subject even as to their physical freedom to the control of their parent or guardians. And since Vernonia the Supreme Court has in fact consistently invoked Tinker on one hand and deployed Scalia's phrase custodial and tutelary in cases in which constitutional or statutory rights claims have been raised by or on behalf of students in public schools including Davis v. Monroe County Board of Education, Board of Education v. Earls, Morse-Frederick of which I'll speak in the next 10 minute interval and Safford United-- Safford Unified School District number one v. Redding. So, we see this language of custodial and tutelary relationships repeating since 1996. Well, I'll take a break there, because it's probably been 10 minutes and turn it over to my-- >> Okay. >> J.C. Blokhuis: Coauthor Jonathan. >> Jonathan Feldman: Thank you Jason and thank you the other Jason too. I'm going to quickly talk about chapter seven and chapter nine and very-- the thing that really links those two chapters is a very recent Federal law that was passed that expanded the reach of the Americans with Disabilities Act. It just went into effect in 2009. A landmark Civil Rights Bill, really it's known as the ADAAA, the Americans with Disabilities Act Amendments Act. And it affects-- in chapter seven we talk about students with disabilities. In chapter nine we talk about teachers and school employees. So, it expanded the rights of both of those groups to the extent it expanded eligibility under the ADA. And it's interesting to note when we look at some of the major Federal legislation that's been passed over the years the Rehabilitation Act of 1973, known as Section 504 that was signed into law by President Nixon. The Individuals with Disabilities Education Act of 1975, the Special Ed law that we-- as we call it that was signed into law by President Ford and the ADA itself was signed into law by President Bush Sr. and the ADA Amendments Act was signed into law by President Bush Jr. So-- and these are considered to be fairly liberal Civil Rights laws and yet it's interesting to note that they were all signed into law by Republican presidents. So, what does that mean? Well, it means that not necessarily that they're conservative laws necessarily, but I think that there's been a lot bipartisan support for expanding the rights of people with disabilities over the years on both sides of the aisle. However, it hasn't always been peaches and cream. There's been one entity that's been somewhat not quite on board in all these developments and that's been the Supreme Court. The Supreme Court narrowed the reach of the ADA in a series of decisions, first a trilogy which is three cases decided together called the Sutton Trilogy. In that case the Supreme Court introduced the idea that if you had a disability, but it was essentially under control or with a mitigating measure such as medication or some other thing that corrected for the disability then you did not qualify under the ADA. You didn't truly have a disability. That sound reasonable except it wound up throwing a lot of people off of the disability train I guess you could say, who we would think did have a disability. And just to give you an example, in those cases there were pilots for United Airlines who could not-- who had 20/20 vision, but United passed a rule saying they had to have 20/20 vision without glasses. And the-- so they said well, you can't discriminate against us because of our vision. The Supreme Court said sorry, because your vision is corrected with this mitigating measure of your glasses you don't qualify under the ADA. So, it's sort of a catch 22 and so you can be fired and that more draconian types of applications there was also a truck driver, who had high blood pressure, but it was corrected with medication in the Supreme Court said yes, you don't qualify either. You can be fired. And even someone who had no vision in one eye, but was able to correct for that through his own just devices the Supreme Court said no, you don't have a disability either even though you only have vision in one eye. The Supreme Court went-- in another case known as Toyota a worker who developed carpal tunnel syndrome and could no longer perform her job was found not to have a disability so she could be legitimately fired under the ADA, because the Supreme Court said she could do basic household tasks like brushing her teeth. So, Congress in reaction to this said wait a minute, we did-- that's not what we intended when we passed the ADA. We didn't mean for it to be so narrowly construed as to who had a disability and who did not have a disability. So, we are going to overrule the Supreme Court and say that these people are covered. Well, you might ask how can the-- how can Congress overrule the Supreme Court. Doesn't the Supreme Court have the last word? And the answer is yes, but only in matters of constitutional interpretation. This is just a Federal law that we're talking about and Congress as the final say in interpreting Federal laws. So, Congress did that and the ADA Amendments Act it said to the Supreme Court we disagree with your interpretation of our intent. We always intended the ADA to be construed broadly and so we are overruling, overturning all of your decisions that construed it more narrowly. So, now the ADA is-- has a very broad reach and just a few examples of how that applies, in the textbook we talk about how this affects students with disabilities first of all. There are three way-- examples of how this might expand eligibility for students with disabilities. First of all, think of all the students who have a disability that's basically under control with medication. For example, students who ADHD and might be taking Ritalin or Strattera, something that basically allows them to function well without symptoms of ADHD. Under the Supreme Court's old definition of the ADA those students did not have a disability, so they didn't qualify for any accommodations. But now, the Supreme Court said we don't look at what medication you're taking and whether that erases your disability. We look at your disability without the medication. And so all of you kids who have ADHD your all covered. So, now schools have-- arguably have a much bigger hurdle and burden to make sure that all those kids are entitled to accommodations. Secondly and this is really very important for certain kids who have for example, very severe peanut allergies. In the past the Supreme Court also had held that you don't measure disability when it's in remission or when you don't see evidence of it. So, with a peanut allergy if you never get exposed to a peanut you're basically fine. You don't have a disability according to that old definition. But now, Congress has said we've-- now we're going to look at a disability when it's in its active state. So, even if you only eat a peanut once in a blue moon we're going to look at your disability for when you're eating the peanut and so you do have a disability at that moment and therefore you are covered. So, that means that all these students who before were considered not to have a disability now are and they all are entitled to accommodations, which might mean making you know a peanut free schoolroom, a peanut free cafeteria. So, it does have big ramifications especially for students, but also for the schools that have to make sure that these things happen. And finally, the courts are also looking at more unusual conditions as disabilities and that's-- Congress has told the courts to do that, to construe disability broadly. So for example, in the textbook we describe a very recent case where a girl was expelled from a private school allegedly, her parents alleged it was because she had an eating disorder. And the schools-- the school argued in court well, even if we did do that an eating disorder is not a disability. But, the court said well, under the new definition of the ADA it might well be a disability. We're supposed to construe this broadly so it refused to throw the case out. So, that's in a nutshell how students and schools are now covered in a much broader way under the ADA. And of course, the same thing holds true of school employees. In fact, the amendments act was really enacted with workers in mind even much more than even students. So, workers, teachers, school employees similarly have a much greater protection under the ADA than they had before. So this means again, the EEOC, the Equal Employment Opportunity Commission has drafted regulations which spell out which disabilities, which might have been thought to be sort of questionable disabilities in the past, are now very much covered under the ADA such as multiple sclerosis, posttraumatic stress disorder and even obsessive compulsive disorder. These are all legitimate disabilities now. So, if a school employee such as a teacher has a disability of that sort they now have the protection under the ADA and they can't be fired by the school district for having that condition. And they also even more importantly are entitled to accommodations to allow them to keep working in the school environment as long as they can still perform the essential functions of the job. And of course, that hasn't changed. All this law did was expand eligibility. It did not change the rule that you have to be able to meet the essential functions of your job to be able to continue in it. So, I think I will-- that's my segment for now and I will continue in a few minutes after Jason goes back to his segment. >> J.C. Blokhuis: Oh thank you Jonathan. Well then, let's see. Where was I? Oh yes. I left off with the list of cases, of decisions in recent years in which the Supreme Court has affirmed the nature of the relationship between public school teachers and students as custodial and tutelary. And I think it's important to note that it's been both judges that are regarded as generally conservative, but judges not so conservative as alike that have characterized the relationship in this way. So, in Davis v. Monroe County Board of Education, this was a case that involved a fifth grader sexually harassed over an extended period of time by a classmate. Her mother filed a title nine suit against the school district arguing that school officials knew of the harassment, but had done nothing to stop it effectively depriving her daughter of equal access to the school's educational program. Noting that the nature of states' power over public school children is custodial and tutelary permitting a degree of supervision and control that could not be exercised over free adults, just as Sandra Day O'Connor found that because school districts exercise such control over students including those known to be engaged in systematic sexual harassment of other students that the district could indeed be held liable. In Board of Education v. Earls, a case from 2002, the Supreme Court upheld a school district policy mandating drug tests for all students involved in all kinds of extracurricular activities, not just athletes. Writing for majority Justice Clarence Thomas noted that Vernonia did not require the school to test to prove the students most likely to use drugs, but rather consider the constitutionality of the program in the context of public schools custodial responsibilities. Evaluating the policy in this context he concluded we-- we conclude that the drug testing of students who participate in extracurricular activities effectively serves the school district's interests in protecting the safety and health of its students. While, then came Safford Unified School District v. Redding from 2009 and this case involved a seventh grader who was strip-searched by school officials looking for of all things ibuprofen pills. Writing for the majority Justice David Souter found the search unconstitutional, but granted qualified immunity to the district on the ground that school officials had not violated any clearly established law. Concurring in this result Justice Clarence Thomas reiterated his call in Morse, Morse v. Frederick for a complete restoration of in loco parentis in schools. It's not something that I support by the way. Well, what is this Morse and Frederick case? You might know it as the Bong Hits 4 Jesus case. It's better known by that name. It's from 2007. And so this case was at least somewhat anomalous for a number of reasons and I'll go into that I suppose. Now, this was a case which an 18 year old student unsuccessfully claimed that his school principal, Deborah Morse had violated his First Amendment rights when she suspended him for hoisting a banner on the sidewalk outside the school and the banner Bong Hits 4 Jesus was at an Olympic torch relay. So, what people tend to overlook in this case is that Joseph Frederick was 18. He was an adult when he unfurled that banner and any other adult in Juneau, Alaska was at liberty to hoist a similar banner in the same city in the same day. But, Morse the principle could suspend Frederick for doing so without violating his First Amendment rights, because Frederick was cast by in this case Justice John Roberts, Chief Justice John Roberts as a student promoting illegal drug use at a school sponsored event. And thereby carving out a new category of unprotected student speech and in this case the promotion of illegal drug use alongside long standing excluding-- excluded categories of obscenity, fighting words, threats, defamation and so on. So, you have this new category of promoting illegal drug use in a school context. The-- to my mind at least the jurisprudential problem here is that Frederick was not subject, at least not presumptively subject to the custodial and tutelary authority of the principle by virtue of his minority status. He wasn't a minor. He was an adult and thus voluntarily subject to school rules. Had Joseph Frederick wished to avoid his suspension he could have simply dropped out of school and completed his studies elsewhere. As an adult moreover and this is-- really gets to the heart of the matter for me. As an adult he has standing in his own right to sue the school under section 1983 of the Federal statutory tort claim for violation of, alleged violations of his constitutional rights. So, section 1983 is the Federal statute created to create a cause-- it creates a cause of action for damages in tort against the agents who violate constitutional and various other rights. So, in the Morse decision the Supreme Court determined that speech advocating the use of illegal drugs in schools falls outside the scope of the First Amendment. It's a categorical exception. And there's no need then to apply the Tinker test to determine whether there had been material and substantial disruption. Principal Morse could therefore suppress Frederick's speech without violating his First Amendment rights. And Frederick was therefore not entitled to damages under section 1983, lost the case. Now, it's not that you know the-- it's not the section 93-- 1983 element that makes the Frederick case unique, Morse and Frederick case, because in fact Earls and Davis and Safford and even Tinker in 1969, these were all section 1983 cases. But, what distinguishes Morris v. Frederick from the others is that Frederick himself had standing to raise these section 1983 claims while in all the other cases it was the parents or litigation guardian's that raised the rights claim-- section 1983 claims on behalf of their minor children. So, what's anomalous here? Well, it's that the Supreme Court on one hand recognized Frederick as a competent adult for critical purposes. He had standing to raise these claims as an adult while at the same time treating him as a minor, a pupil subject to the custodial and tutelary authority of the school principal. I would say he was voluntarily subject to school rules. He had voluntarily broken them. He should have accepted the foreseeable consequences of his choices as would be expected of any other normal adult. At a minimum Morse is probably not the most appropriate occasion for Justice Thomas once again in a concurring opinion to argue for the complete restoration of in loco parentis in public schools. And it's probably not the most appropriate case for the Chief Justice writing for the majority to affirm once again the custodial and tutelary relationship between public school officials and students, because in this case the student was not a minor. But again, we'll turn to, "American Jurisprudence." We have section 315. In, "American Jurisprudence" teachers in public, private and parochial schools all stand to some extent at least in loco parentis to minors, to pupils. And the entry in, "American Jurisprudence" reads a teacher is responsible for discipline in the school and for the progress, conduct and deportment of his or her students. He or she to a limited extent at least stands in loco parentis in the place of a parent to the pupils under his or her charge. That common law when standing in loco parentis has the right to moderately chastise for correction a child under his or her control and authority. Thus, a teacher may exercise such powers of control, restraint and correction as may reasonably-- may be reasonably necessary to enable the teacher properly to perform his or her duties and to accomplish the purposes of education. In any event, since Morse v. Frederick Federal courts have applied what might be called the Morse doctrine. So, in recent years we see cases like from the Eastern District of Pennsylvania in 2008 a case called Miller v. Penn Manor School District. This case involved a student who wore a t-shirt to school bearing the image of an automatic handgun with the imprint volunteer homeland security. And between volunteer and homeland security on the back of the t-shirt it was-- it said special issue resident lifetime license United States terrorist hunting permit number 91101. No bag limit. Then the school prohibited the t-shirt under the Morse doctrine not because it was advocating illegal drug use, but you know effectively carving out another broader category of promoting illegal activity, in this vigilantism or perhaps even murder. The material and substantial disruption test from Tinker lives on however and this is an issue that's quite topical nowadays, cyber bullying. This is a form of off campus speech typically targeting students or school officials. Now, this has become a major concern for teachers, parents all over the country. And we see various pieces of legislation throughout the country and the Federal Government has also issued some reports defining bullying, for example as quote, a pattern of-- a repeated pattern of aggressive behavior that involves an imbalance of power and that purposefully inflicts harm on a victim. Adding that bullying quote, assumes a variety of forms including direct physical or verbal actions that cause physical or emotional distress or for the purposes of cyber bullying indirect acts of social aggression that are used to damage a victim's personal relationships or social standing. So, what happens when schools try to regulate student speech in the form of-- off campus speech with cyber bullying, social media and that sort of thing? Well, the Tinker test applies so the courts have to determine whether cyber speech, something that's communicated by a student through social media caused material and substantial disruption in the schools. And in fact, courts throughout the country not uniformly, but to a large degree many courts have not hesitated to conclude that these requirements are in fact satisfied especially, not only but especially when cyber speech, cyber bullying includes true threats, so words or images that threaten violence or depict violence against teachers or students. So, we've got a couple of cases in chapter five including Kowalski versus Berkeley County Schools, a case from 2011 from the Fourth Circuit. In that case a student, a high school student created an insulting and vulgar MySpace profile about a classmate whom she described as a slut and a whore and someone quote, infected with herpes. The court found the district acted-- these are quoting and-- the court found the district acted within its authority to discipline the cyber bully noting that the profile created actual or nascent disorder and that had the school not intervened and these are the court's words again, the potential for continuing and more serious harassment of this student as well as other students was very real. Courts have been more reluctant to permit the discipline of students for cyber speech, cyber-attacks that don't involve true threats. At least those that don't involve true threats against school officials. So, we have the case of J.S. v. Blue Mountain School District from the Third Circuit in 2011. And this was a case in which a student created a fictitious MySpace profile yet again, MySpace of her school principle from her home computer on a weekend. And this profile contained extremely vulgar language; I won't repeat it here, and sexually explicit content. Well, in this case the Third Circuit Court found that the lewdness exception didn't apply from Fraser. So, yes it was lewd speech, but we can't apply that here, because this is off campus speech and that the Tinker standard did not apply, because there had been no substantial material or substantial disruption in the school. Well, the same circuit, the Third Circuits likewise applied Tinker to decide in favor of students again in a case called Layshock v. Hermitage School District also in 2011. And in that case the plaintiff had yet again created a-- an online profile of the school principle in which he was characterized as a drunk who used steroids among other things. The profile was ultimately viewed by most of the students in the school in this case. And what's different here the plaintiff used a school computer not to create, but to access the profile to show to other students in the school. So, in response the school had restricted access to the internet generally across the board at least until the IT Coordinator for the school returned from vacation and subsequently blocked access to that specific site. So, there were rules put in place in the school that limited access to the internet and to computers generally. Nonetheless, the Third Circuit found that there had been no material and substantial disruption. An exception, well there's a case also from 2011 that we feature in chapter five, students using electronic media to promote or foment opposition to school officials or school policies. These sorts of things have not been tolerated. So, in Doninger versus Niehoff, this is a Second Circuit case, a student used an online blog to encourage other students to write, to contact, email school officials whom she referred to as douche bags to complain about the cancelation of a music festival. And in that case the court found that there had indeed been material and substantial disruption noting that students throughout the school had been quote, all riled up and that school officials had received-- in response to this appeal school officials had received quote, "a deluge of calls and emails." So, I'll leave it at that and turn it over to Jonathan yet again. [ Silence ] >> Jonathan Feldman: Alright. And I'll try to be brief, because I know we want to have some time-- >> [inaudible] >> Jonathan Feldman: For Q&A. That's okay. Sorry, you're fine. Alright, so before we were talking-- picking up where I left before. We were talking about the civil rights of people with disabilities, a simile of similar themes in chapter six regarding civil rights based on race, gender and national origin. So, I'm going to very briefly talk about a very recent at the Supreme Court level, Fisher versus University of Texas. It was decided in 2013, really just a few months ago. And this is a higher Ed case. Our book primarily focuses on K through 12, but it has implications for K through 12. So, that's-- it's still relevant for our discussion. This case addressed Affirmative Action in college admissions. And in any Affirmative Action cases we have to start with the understanding that the Supreme Court has interpreted the Constitution to mean that any time the government uses race for any purpose even if the aim is not to discriminate based on race, but simply to promote diversity it triggers what's called strict scrutiny by the courts. That means that the government has a very heavy burden to justify its use of race. It has to show that there is a compelling reason to use it or the program will be declared unconstitutional under the Equal Protection Clause. Again, even if it's-- the aim is a good aim. But, in higher education cases the Supreme Court has acknowledged that the attempt to foster diversity in the student population is a compelling interest, which can justify the use of race. Leaving-- diversity among faculty members that's more of an open question, but at least for the student body it has been held to be a compelling interest. However, the Supreme Court has held that when government does use race in college admissions it has to do it in a very nuanced way, a very holistic way. It simply can't do it in a mechanistic way, which means okay we're going to assign 20 points to this student, because this student happens to be Latino or Asian American. It has to sort of look at the overall portfolio of the student and race can be one of the many things that it considers, but it has to done in a holistic way. So, in the Fisher case, this recent case, the Supreme Court applied those principles to the University of Texas system. Texas had a very interesting admit-- college admissions program for its state schools called the Top 10 Percent law, which guaranteed admission to any high school graduate who finished in the top 10 percent of his or her high school class. Arguably that was a race neutral program, because it just looked at how you did in high school. It didn't look at your race. At least arguably it was race neutral. And 80 percent of all students in Texas were admitted to UT, University of Texas through the system. So, it-- and it did lead to some greater adversity, but not what University of Texas was looking-- was seeking. So, it adopted a second tier of admissions where it did look at race beyond this 10 Percent law and arguably it used a holistic method for looking at race. So, arguably that would be held to be constitutional. But, Abigail Fisher didn't see it that way. She was a white applicant who was rejected by the University of Texas and she sued UT saying that she had been unconstitutionally denied admission, because they looked at her race. So, this case really turned on the meaning of the 10 Percent law and there are three different ways that it could be looked at. And lawyers love to look at things in different ways, so there's at least three ways it could be looked at, first from the plaintiff's perspective. She argued that the 10 Percent law was a race neutral law that was working. So, since it was working there was no reason or justification to move to the second tier where you'd look at race. UT should have just stayed with the race neutral part and she was a victim in her mind of this second race conscious approach. But, from UT's perspective this was-- argument was essentially no good deed goes unpunished. They had used race neutral means to the greatest extent possible. Eighty percent of students were admitted in a race neutral way and-- but they still didn't achieve the diversity they were seeking, the critical mass of diverse student body that they needed so why shouldn't they be allowed to have this second tier of admissions. And the third approach finally, came from Justice Ginsburg, Ginsburg's Dissent. She contended, this is interesting, that the 10 Percent law was not race neutral at all. It was actually race conscious, because it was predicated on the recognition that the high schools in Texas were extremely segregated. You couldn't be guaranteed of a diverse student body unless you had some high schools in Texas that were virtually all white. And some high schools in Texas that were virtually all nonwhite, because you know you sort of-- the legislature knew that the segregated system would yield graduates that would basically be diverse. But, only because we had that segregated system. So, to Justice Ginsburg the program to begin with was race conscious. But, ironically she thought that was fine, because she maintains that race conscious admission plans are totally justified if they're done to promote diversity. So, there you have it, three different ways of looking at it. The decision itself was somewhat anti-climatic. The court didn't really make any waves. It didn't get rid of Affirmative Action in college admissions as some had predicted it would. It just reaffirmed the existing principles that I mentioned earlier that UT had to use a holistic approach to race and it sent the court-- the case back down to the lower courts to make sure that UT had actually analyzed the case according to these existing principles. So, it's good news I guess for colleges who-- that want to still promote diversity, because they can still continue to do so. It's also good for school districts that want to voluntarily promote diversity in their programs. And our chapter focuses on the implications of the Fisher case for those sorts of situations. Yes, school districts that want to voluntarily promote diversity within their borders can do so. But, as a practical matter it's much more difficult to have a holistic approach to race conscious admissions when you're not talking about a college student you know submitting a portfolio. If you're just talking about a second grader trying to apply to the local elementary school how will you employ a holistic admission standard? It's much easier just to assign students based on race, but the Supreme Court has said you can't do that. So, instead the Supreme Court has said in a similar case that we describe in the book, the Seattle and Louisville case-- cases; they can use proxies for race. They can use poverty measures. They can use geographic measures, anything that might serve as a decent substitute for race, but without considering race itself. And they can try to achieve diverse schools in that way. So, it's challenging for school districts, but there's still a way for them to do that. And fortunately after Fisher that still is a possibility. So, that's the lesson from Fisher and that's a little summary of chapter six. >> Now, we want to allow a few minutes for questions before the day ends. So, what we'll do is we'll take a few questions and I'll repeat the question into the microphone that way we capture it for the webcast and then the scholars will address the questions. So, there's a lot to digest there. Any questions from the audience? >> Yeah? >> Coming from a total [inaudible] is there any underlying principle or principles that link these various elements together, because I mean your all about education. But, is there a more general principle of, set of principles, a lens in which to view all of the various elements, disability, [inaudible]? I can't remember all of them. >> Now, the question is, is there a general underlying principle that unites all of the discussion topics and particularly First Amendment rights, disability rights, Affirmative Action? >> J.C. Blokhuis: Well, that's-- it's true that we cover a lot of terrain and in the 12 chapters and it is hard to describe a sort of common thread except that we are dealing with K-12 schools within which most students are children, minors. So, the idea in 1969 that the proposition that children do not shed their constitutional rights at the schoolhouse gate. I mean that's something that I've wrestled with in my studies. What right did they have to leave there in the first place? To my mind they leave their parents at the schoolhouse gate and I don't know, not really their rights. But, that's not to say children in-- K-12 students don't have right. They do. The Supreme Court next door said so. But, the court has always said that, that those rights are not coextensive with those of adults in other contexts. So, if there is a unifying theme is well, how do we apply the concept of rights to-- that we understand in the adult world beyond the schoolhouse gates to this context and this educational context, public and to some extent private schools when we have minors or children when their interests are implicated? >> Jonathan Feldman: Yeah and I think just to build on that point we see that in that the Federal statutory arena as well. Where the aim really of these ADA amendments was-- >> For workers. >> Jonathan Feldman: Was for workers, was for adults. That was the primary focus and yet students are the beneficiaries of that. And it's more challenging for schools to try to figure out how do we apply these worker centered rights to minors, but the minors still are covered. So, just as Jason said, just as they are in the constitutional realm as well. >> Any other questions? I actually have a question, which I was wondering if you guys could address. Are there parallels? The school environment seems to be quite unique. Is there sort of a parallel environment, the home environment or public recreation environment where maybe there are some presidents that are sent or where things from a school environment apply or deviate or just generally if you could address that? >> J.C. Blokhuis: Well, that's actually-- schools have been described by some legal scholars as mediating structures. And so they're not, they're not totally akin to the home in they're not totally akin to public institutions, other public settings. And again, this relates to the fact that we're dealing with minors so the people who are-- young people who are not yet fully competent. They're at some-- and depending on their age of course, and level of maturity they're not yet fully capable of exercising certainly liberty rights in the way that we understand adults, normal adults are competent to exercise liberty rights. And so young people as minors are categorically excluded from doing all kinds of things out in the real world you know from being out on the streets at night in municipalities with curfews to buying alcohol or you know or driving if they're under 16, right. So, we have, we have this category of persons, minors, children who are excluded from exercising the kinds of rights including rights of speech and mobility and so on that we take for granted as adults. In this does get to broader questions about the purpose of schools, education generally. At some level schools exist to provide public-- children with access to public knowledge and to diverse ideas and so on to help cultivate the capacities that we associate with legal competence and that rights are designed I supposed to recognize and protect. So, I don't think it's coincidental that the school leaving age is generally 18; you know the age of maturity. That's not a coincidence. Would you add to that? >> Jonathan Feldman: No. I think you've-- >> Rambling response. >> Jonathan Feldman: No that's good, right. >> Great. Well, we have time for one more question if anyone has anything in particular that they wanted to ask. Yes please? >> Yeah almost daily we see on the news some idiotic rule that a school board has-- say this morning was a six year old kissed a girl and was suspended for sexual harassment. And there are other things that we all know of kids pointing their finger and saying pow and getting into trouble. >> J.C. Blokhuis: Finger guns, right. >> I don't remember these things from the past. Is there some reasons why these are-- appeared and is there any way that they can be stopped? >> So, the question is about-- >> J.C. Blokhuis: Yeah I saw that. >> Boards, school boards and regulations and restrictions such as kissing on the schoolyard or pointing a finger gun at people and what the implications are. >> J.C. Blokhuis: Well, we both saw that from Jonathan Turley's blog this morning, the account of the six year old who was suspended for kissing a fellow students hand. So, it was sexual, accused of sexual harassment, of being a sexual predator. And you've-- you know the stories of the finger guns and what have you. Apparently we're told that zero tolerance policies are on the wane and stories like this one would you know give some doubt that that's true. In relation to what I said earlier, if-- you know one of the difficulties with zero tolerance, and we do address zero tolerance in the textbook, is that it-- is zero tolerance policies remove the element of discretion from a school official. So, the school officials instead of exercising good judgment and you know assessing the situation in light of you know the circumstances, the age of the child, level of maturity, the-- you know the nature of the infraction that they simply say oh, you know this is sexual harassment. This is violence. This is a weapon and apply you know the penalty. The-- a problem philosophically here is that if schools exist in order or at least in part to provide children with exemplars of good judgment exercised on their behalf so that by the time they reach 18 they can do likewise, exercise good judgment for themselves as adults. Then schools are, you know especially schools headed by principles like this one who clings to a zero tolerance policy, then they're not going to be able-- they're not going to be doing that. And sure that's a problem. >> Jonathan Feldman: Yeah. And I'd like to say just in fairness the flipside of these stories there are unfortunately very serious incidents of harassment that really do occur that are very serious and those-- >> J.C. Blokhuis: Yes. >> Jonathan Feldman: Tend not to be maybe sensationalized as much in the press as these sorts of rather ridiculous examples. But for example, you know when students are assaulted by teachers or you know serious assaults by other students, but in those cases it's a pretty high bar. I mean there has to be a very serious assault before a student at least can sue the school or the other student's family for money damages. So, there is at least some sort of reason I would say and the system is not totally out of control. But, certainly these examples don't look good I would say for the schools, you know. >> Thank you and thank you guys. Let's give our scholars a round of applause. I want to actually briefly remind that we do have copies of, "Education Law" for purchase on the way out. And if you would also quickly remind the folks about the other volume that you've-- >> J.C. Blokhuis: Oh-- >> 58:23 >> J.C. Blokhuis: A companion volume that's smaller and cheaper called, "A Teacher's Guide to Education Law." It's one of those pocket size. >> So, we don't have that one available, but you can certainly Google it or check it out from your local library perhaps. And on the way out as well please do sign our RSS list to learn about future events and other scholars in residence. So, thank you again very much. >> Jonathan Feldman: Thanks. >> J.C. Blokhuis: Thank you. >> This has been a presentation of the Library of Congress. Visit us at loc.gov.