From: Kathleen Boundy
Center for Law and Education, Boston
Re: DRAFT Memo - Issues and concerns of students and parents regarding MCAS
Date: 12-16-99
DRAFT DRAFT DRAFT
DRAFT DRAFTIF THIS INFORMATION IS USED, BE SURE TO STATE IT IS A DRAFT.
1. Can students be subject to disciplinary sanctions for refusing to take the MCAS?
First, students who elect not to participate in the MCAS as a means of expressing their opposition to the State test are protected by a federal and state constitutional right to freedom of expression. The U.S. Supreme Court made clear in Tinker v. Des Moines (1969) that students do not shed their First Amendment rights at the schoolhouse gate [393 U.S. 503, 506]; but that a student’s right to free speech is not without limitation. 393 U.S. at 509. Schools may limit student speech [id.] but only in narrowly defined circumstances. Id.
"In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid discomfit and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition can not be sustained." Id., at 509 (emphasis added). For speech to be limited based upon a fear or projection of disruption, the fear must be "reasonable" and not merely an "undifferentiated fear" of disturbance. Id., at 508-09.
First Amendment protection differs based upon the nature of speech and the circumstances involved. For example, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-71 (1988), the Supreme Court held that speech in the form of a student newspaper sponsored by the school was entitled to a lesser standard of First Amendment protection. The Court distinguished students’ personal expressions which happen to occur on school property which are protected under the Tinker standard from school sponsored speech.
In a recent decision (helpful for instructive purposes), Betussik v. Woodland R-IV School District, 30 F. Supp. 2d 1173 (E.D. Mo. 1999), a federal district court granted an injunction against disciplinary action taken against a high school student following discovery of his personal homepage that contained derogatory comments about the high school, finding that such action violated the student’s First Amendment rights. Relying upon the standards from Tinker, the court recognized that the principal’s disliking the message was not a justification for limiting the ‘speech’ at issue. Moreover, the suspension, which had academic implications (loss of credit because of unexcused absences threatened student’s ability to graduate), was imposed by the principal because he was offended by the content and not based on any actual or feared disruption of school operations. The court expressly found that Brussink’s homepage did not materially and substantially interfere with school discipline. While speech within school that substantially interferes with school discipline may be limited, individual student speech which is unpopular but does not substantially interfere with school discipline is entitled to protection. Id., at 1181-82. Accordingly, the court enjoined the school district from using the ten day suspension in its application of its absenteeism policy to the student’s grades for the second semester, from enforcing any other sanction arising from the youth’s homepage, and from restricting the student’s use of his home computer to repost that homepage.
2. There are a number of possible state law claims that may be relevant to students who are or may be subject to disciplinary sanctions (e.g., detention, suspension, in-school suspension, expulsion, academic punishment) because they refuse to take the MCAS.. The Commissioner of Education’s reported suggestion? to school districts that students choosing not to participate in the MCAS be required to sit in the same classroom with their test taking peers during the test administration period could be construed both an academic sanction and a disciplinary exclusion - depending upon whether the non-test takers are prohibited from engaging in other learning activity during that period. A challenge against the imposition of such disciplinary sanctions might include the following substantive claims:
Inadequate notice that conduct is subject to discipline.
No written rule. Is the ‘misconduct’ charged identified in a written rule of the school district? [Massachusetts c. 71, section 37H requires all school districts to adopt and publish policies pertaining to the conduct of students and teachers. At the high school level, "each school building containing grades nine to twelve" the principal in consultation with the school council, must prepare a handbook setting forth the rules on student conduct. What do existing policies state in writing? What does the student handbook say? Under Mass. C. 71, section 37H, each high school students must be given a copy of the handbook so all have notice of the conduct that is expected and the sanctions that may be imposed. Section 37H also provides that each school district’s code of discipline and procedures used to develop such codes must be filed with the Department of Education and available to the public.
Unconstitutionally vague rule. A rule that fails to reasonably apprise students that certain conduct is proscribed, can be challenged as unconstitutionally vague. (Eg., see Bertens v. Stewart, Fla. App. 1984 - suspension for possessing and distributing nonprescriptive vitamins at school, based on a rule concerning "medicine"; rule failed to apprise adequately student that vitamins were subject to its terms; violation of due process clauses of Fourteen Amendment and State Constitution.) Section 37H, G.L. c. 71, states that the school district’s code of conduct must include: disciplinary proceedings, including procedures assuring due process, and disciplinary measures to be taken in cases involving possession or use of illegal substances, weapons, or the use of force, vandalism or violation of others’ civil rights.
A rule that is vague or lacks clarity may lead to a decision that discipline is arbitrary or capricious. See Ochsner v. Bd. of Trustees of Washington Community College (Wash. App. 1991).
Discipline which is unauthorized (ultra vires).
Chapter 71, sections 37H, 37H 1/2, G.L. describe the nature and scope of authority granted expressly to a school principal and c. 76, sections 16 & 17 describe the parameters for school boards to act, as for example, to address misconduct which occurs on school grounds or at school sponsored functions. School boards, as other governmental bodies created by statute, possess only the authority derived from statute and may not exercise unrestricted authority over other persons. When a school board or school official takes an action that is in excess of, or beyond the scope of his/her authority (conferred expressly or impliedly), the action is referred to as ultra vires and, it is unlawful.
A variety of actions involved in disciplining students may, depending on the facts, be deemed ultra vires. For example:
1. An unauthorized party may adopt a disciplinary rule and lack the authority to do so.
2. An unauthorized person may impose discipline.
3. Disciplinary authority extended to unauthorized place.
4. Disciplinary authority extended to an unauthorized subject matter. [Does the authority exist to exclude students from school for refusing to take the MCAS? How about for not taking a final exam? Not turning in their homework? Or for refusing to go to soccer practice? ]
5. Sanction unauthorized (a wide variety of punishments for purported misconduct have been challenged as ultra vires, including, e.g., denial of academic credit, lowering of grades, dropping a student from his/her class, barring a student from participation in graduation exercises, or withholding a diploma). [What authorization exists by law that empowers a school principal, superintendent or school board to impose the penaalty being challenged?]
Discipline which is inconsistent with a body’s own rules.
Courts have generally held that a school board (and its agents), as other administrative bodies, must follow its own rules. In instances where courts rule against students or teachers who assert rule violations, it is generally because the court finds compliance with the rules [see Boehm v. Univ. of Pennsylvania School of Vet. Medicine, 573 A.2d 575, 582 (Pa. Super. Ct. 1990) (school "followed its Code of Rights punctiliously")], or the violation is held to be harmless error in a particular situation. See Ahlum v. Administrators of Tulane Educational Fund, 617 So. 2d 96, 101 (La. App. 4 Cir. 1993)(failure to tape record hearing was harmless error, where student did not raise the issue at the hearing, and "[committee] clearly had evidence on which to base its opinion.").
Discipline which is inconsistent with the substantive standard set forth in a state statute or regulation.
Most statutes authorizing school authorities to suspend or expel students generally include language or standards defining the scope of the authority. The standards may, e.g., describe state of mind or culpability; some pre-condition to the use of exclusionary discipline; a requirement that the conduct be persistent, on-going, dangerous, etc.; grounds for exclusionary discipline; some limitation on period of exclusion. Students have successfully challenged exclusions when the sanction imposed is inconsistent with the standards set forth in the authorizing provision. See Quinlan v. University Place School District 83, 660 P.2d 329, 331 (Wash. App. 1983)(64 day exclusion invalidated because in violation of state regulation that established precondition for lengthy exclusions. [See also, Lauer v. Millville Area School District, 657 A.2d 119 (Pa. Cmwlth. 1995)(two comments by teacher did not constitute "persistent negligence"; dismissal unlawful.).
Discipline which is excessive.
Challenges based on excessive discipline will not rest solely on this ground. If successful, such a challenge will also violate another legal premise, i.e., it violates state law, regulation or the right to education under the state constitution, or is arbitrary and capricious, or an abuse of discretion.
Discipline which implicates a state created right to education
Education clauses of state constitutions as well as compulsory school statutes ought to be considered as a potential barrier to excessive exclusion of students from school. Unfortunately in Massachusetts, the appellate court upheld the disciplinary exclusion under c. 71, section 37H, G.L., in the case Jane Doe v. Superintendent of Schools of Worcester, 421 Mass. 117. Here plaintiffs challenged the expulsion of a ninth grade student, with an opportunity for readmission one year later, for having at school "a lipstick case, which, when opened , revealed a one and one-quarter inch blade" and the implement though shown to another student had not been used in any way.
In Doe, the court declined to hold that "the Massachusetts Constitution guarantees each individual student the fundamental right to an education." Id., 421 Mass. at 129. It then rejected, based on the rational basis test (a lesser standard), plaintiff’s substantive due process challenge to a disciplinary expulsion for one year. 421 Mass. at 132-33.
Discipline which implicates a state created right to freedom of expression
A student may not be punished for conduct that is protected by a state guarantee of freedom of expression. This is significant in the context of the MCAS protest. See discussion of federal constitutional right above.
Discipline which implicates a state created right to substantive due process protections and/or which involves arbitrary, capricious, or unreasonable conduct or an abuse of discretion
Courts are frequently unwilling to overrrule school officials though some courts have determined that discipline is excessive "in view of circumstances as a whole"; that school authorities are acting in an arbitrary and capricious manner where "student’s conduct is not culpable" or where the "sanction bottomed on irrelevant factors."
3. What rights, if any, do parents have to refuse to send their children to school because they oppose their taking the MCAS?
The U.S. Supreme Court has held that the "liberty" interest specifically protected by the due process clause of the Fourteenth Amendment includes, inter alia, the right of parents to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390 (1923)(state law forbidding schools from teaching German language to students below 8th grade was stuck down as "arbitrary and without reasonable relation to any end within the competency of the State) and Pierce v. Society of Sisters, 268 U.S. 390 (1925)(state law requiring parents to send their children aged 8-16 to public school only unconstitutionally arbitrary without reasonable relation....). This particular‘liberty’ interest of parents was described in Pierce as a "right coupled with the high duty, to recognize and prepare [the child] for additional obligations." Id., 268 U.S. at 535. In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court emphasized the link between parental duty and parental right, declaring it an essential principle "that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166.
Except when a religious element has been raised, the Court has declared that the parents’ liberty interest in directing their children’s schooling is a lesser right and the test merely whether the challenged state action is rationally related to a legitimate state purpose. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). When a parental right to control the upbringing and education of their child is linked to a free exercise of religion "more than a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement." Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). The U.S. Supreme Court addressed this issue explicitly in Wisconsin v. Yoder, 406 U.S. 205 (1972) where the Court invalidated the State’s compulsory attendance law, as applied to Amish parents who refused on religious grounds to send their children to school. The Court in finding for the parents, narrowly held that parents have a liberty interest in controlling the religious upbringing and training of their minor children. See, Wisconsin v. Yoder, 406 U.S. 205, 230-31. The Court emphasized that a State’s educational interest "is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce ‘prepare [them] for additional obligations.’" 406 U.S. at 214. The Court admonished that "[a] way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations." Id., at 215. While parents have definite rights over their children’s education, "they have no constitutional right to provide their children with . . . education unfettered by reasonable government regulation." Runyon v McCrary, 427 U.S. 160, 178 (1976) (emphasis added).
In Jensen v. Reeves, 45 F.Supp. 1265 (D. Utah 1999), parents unsuccessfully challenged a school’s disciplinary measures, including 10 days suspension, imposed on their second grade child after multiple instances of pushing, kicking, harassing and generally disregarding the teachers and principal. For plaintiffs to succeed, it was necessary for them to demonstrate [based on Yoder, 406 U.S. at 214], that the school defendants’ actions unreasonably interfere with the practice of a legitimate religious belief. Here, the federal court determined that plaintiffs-parents’ religious claim fails "to put into issue a legitimate religious belief, let alone one in which defendants unreasonably interfered." As the Supreme Court determined in Yoder: "[a]lthough a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. 406 U.S. at 215-216. Consequently, the Utah federal court found that it was not required to apply the higher standard of review contemplated in the ‘hybrid’ situation against the school defendants’ applying religious neutral guidelines for disciplining misbehaving elementary school children.
The Jensen court further explained that even if plaintiff-parents had added an appropriate religious element to their "right to control the upbringing and education "claim, thus bringing it under the "hybrid"deserving of heightened scrutiny, the school defendants’ actions could still be upheld. Not only is the state action at issue based on a purely secular consideration that does not single out a particular religion or ability of particular persons to exercise legitimate religious beliefs, but the court pointed out, defendants’ disciplinary policies and procedures are content neutral, implemented in a reasonable manner, and the state has an important interest in disciplining students such as this child, whose parents were consulted and their interests given deference.
In Altman v. Bedford Central School District, 45 F. Supp. 368 (S.D.N.Y. 1999), another recent case that directly challenged curriculum content, instructional materials and teaching practices, the court expressed discomfit with the judiciary having responsibility for examining the substantive content of public education- an area in which they claim no special expertise. Plaintiffs, Roman Catholic parents, challenged the exposure of their children to "objectionable activities", use of "methodologies, exercises, materials and presentations" that violate the Free Exercise Clause of the First Amendment, or alternatively, the Establishment Clause of the First Amendment, and in particular, curriculum that involves "the promotion of Satanism and occultism, pagan religions and a New Age Spirituality."
This case raises both the students’ right to exercise their own religious beliefs free from state coercion, as well as the right of the parents to control the religious upbringing and training of their minor children. See Wisconsin v. Yoder, 406 U.S. 205, 230-31. Parents challenged, among other instruction, a fourth grade lesson focused on India that included lessons on geography and culture complimented with activities, such as instruction on how to make batiks, cooking Indian food; making paisley designs, constructing mosaics out of beans, replicating an Indian board game. The teacher introduced the students through a reading passage to Lord Ganesha, an elephant headed Hindi God, who is patron of letters and learning and is considered the remover of obstacles. The reading was followed by a companion art and craft project. The court found that this challenged activity should be seen as neither advancing nor promoting the Hindu religion, but simply educating children about the Hindu culture. However, while the court found that reading the Ganesha story can be part of a neutral secular curriculum, it found no educational justification for telling impressionable young students to construct images of a known Hindu god. Rather, the latter activity sends a message to a child that the school is endorsing Lord Ganesha and the Hindu religion in violation of the First Amendment. Through a similar detailed analysis, the court found the school’s selling in the school store Worry Dolls who "chase away your bad dreams" to violate the First Amendment as it manifests a preference of superstition over religion. Based on a totality of the evidence, the court found that the First Amendment was not violated by a Sikh who conducted yoga exercises because he did not advance religious beliefs, and plaintiffs were permitted to opt out; and no violation to have been committed by a rock collector who did not suggest that crystals have occult or supernatural power. The court also weighed in on challenges to a reading about the Life of Buddha, a story about Quetzacoatl in the context of Mexican history, and writing and distributing children’s original poems, perhaps inspired by Shel Silverstein, that resulted in one 4th grader describing "How God Messed Up" which was challenged as disparaging religion; a visit to a cemetery to gather data from the 1800's; the DARE program; and a visit by a minister and self-proclaimed psychic who conducted an activity designed to stimulate creativity; an Earth Day liturgy; the school district’s peer facilitator program and mediation program.
The Altman court examined a number of activities, which though lacking religious overtones, were challenged as violating the plaintiffs-parents’ Fourteenth Amendment privacy right to exempt their children from educational activities which interfere with their right to direct the upbringing of their children. Specifically, the parents challenged homework assignments to observe and report on activities of family members; administration of the Myers-Briggs personality test; having the students keep a journal; implementation of the Yale Decision Making Program; and counseling for students. Plaintiff-parents sought a blanket opt-out right to all objectionable activities within the district. The federal court relied upon an opinion by the Court of Appeals for the Second Circuit, Immediato v. Rye Neck School District, 73 F.3d 454 (2nd Cir. 1996), in which the appellate court recognized the right of a parent to direct the upbringing of his or her children, but held that any challenged activity (here, compulsory community service) not brought under the Free Exercise Clause or the Establishment Clause would be analyzed based on the minimal rational basis standard of review. In other words, the school district need only prove that the activities at issue are based on a legitimate state interest and that the activities are rationally related to the furtherance of that goal. Id. See also Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988); Cornwell v. State Board of Education, 428 F.2d 471 (4th Cir. 1970); [update and check other circuits]
The appellate court in Immediato expressly held that where parents seek for secular reasons to exempt their child from an educational requirement and the basis of the claim is a right to direct the "upbringing" of their child, rational basis review applies. Moreover, relying on Yoder, 406 U.S. at 215-19, the court rejected any distinction among purely secular objections based on values, morals, or other firmly held beliefs similar to the Constitutional distinction between religious objections and secular objections.
Consistent with this limited review, the Altman court (though noting that parents, in fact, did receive prior notice with a right to opt-out of the Myers-Briggs Personality Test), stated that student testing is recognized as within the realm of legitimate educational goals and thus, plaintiffs’ claim does not rise to either a constitutional or statutory violation.
[Note, under Massachusetts General Laws, c. 71, section 32A [the parent notification law] was enacted expressly for the purpose of requiring school committees to ensure that parents and guardians are notified about any curriculum that primarily involves human sexual education or human sexuality issues, and permitting them to exempt their children from any portion of that curriculum without penalty.]
