Even Gadflys Have Rights
We’ve seen it on elementary school report cards: “Handles criticism well.” And we agree that it’s important for children to learn how to take criticism in a healthy way. But how well do we handle criticism as adults? This question arises in many personnel disputes in public schools. It’s a problem illustrated by a decision of the 11th U.S. Circuit Court of Appeals in a case from the Atlanta suburb of Gwinnett County, Cook v. Gwinnett County School District.
A Logical Approach to History
“In the law, an ounce of history is worth a pound of logic.” That aphorism by the legendary Supreme Court Justice Oliver Wendell Holmes applies throughout the law. A recent case from West Virginia, Bragg v. Swanson, shows that it applies to the thorny and recurring First Amendment question about policies prohibiting students from wearing clothing showing the Confederate flag.
The Ten Commandments Rulings
Quick. Here’s a question: Does the First Amendment’s Establishment Clause permit the public display of the Ten Commandments? Here’s the correct, lawyerly answer, the one that exasperates clients: It depends on the context.
What Not to Wear
Each school district faces its own peculiar problems related to student dress and appearance—from revealing clothes to clothes with gang symbols. But it's one thing for school officials to further valid government interests by prohibiting students from wearing clothes that are dangerous, distracting, or overly revealing. It's another thing entirely for school officials to act as arbitrary and self-appointed fashion police.
Protection for Older Workers
In Smith v. City of Jackson, Mississippi, the Supreme Court ruled on a long-disputed discrimination issue: Can an employee prove that an employer has engaged in age discrimination prohibited by the Age Discrimination in Employment Act without proving that the employer intended to discriminate?
Protection for a Whistleblower
Does Title IX protect whistleblowers from retaliation by a government employer for complaining about alleged gender discrimination—even if the complaint pertained to discrimination against someone else? On March 29, in Jackson v. Birmingham Board of Education, the court resolved this long-running controversy.
The Freedom to Make Mistakes
When the law is unclear, what's a school official to do? The law sometimes appreciates the challenges faced by school officials who genuinely try to comply with constitutional duties as they respond to problems that arise in the swiftly changing, everyday life of a school. It's a principle that gives officials the freedom to make a reasonable mistake about constitutional issues.
When Firing Backfires
Firing an employee is an emotional decision that can generate feelings of anger, resentment, and betrayal. But like any other employee disciplinary action in public schools, a termination is subject to rules established by the U.S. Constitution, state law, and a school board's own policies to ensure that employees are treated fairly. If you intend to terminate an employee, you have to follow the rules.
The Boundaries of Law
A case involving student newspapers shows that every legal rule has limits. To understand a legal rule, it's necessary to understand the rule's boundaries—when it does and does not apply. Factual differences between situations define a legal rule's limits, and even the U.S. Supreme Court's decisions can be somewhat limited in scope. Two cases involving student newspapers illustrate this point: the Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier and a recent court decision from Michigan—Dean v. Utica Community Schools.
Before You Search
It was only a matter of time. After the U.S. Supreme Court upheld random drug testing for athletes (Vernonia School District 47J v. Acton) and for students who participate in any competitive extracurricular activities (Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls), a court somewhere in America would consider the constitutionality of random searches of all students. A recent decision by the 8th U.S. Circuit Court of Appeals, Doe ex rel. Doe v. Little Rock School District, tackles this issue.
Giving Employees Their Dues
The 14th Amendment's Due Process Clause is not a recipe book. It is a skeletal statement of fundamental legal values: Government may not deprive any person of life, liberty, or property without due process of law. From these values, courts have developed general rules resolving certain conflicts between government agencies and individuals. Two recent federal cases—Mitchell v. Fankhauser and Emri v. Evesham Township Board of Education—demonstrate how the clause works in disputes over the discharge of government employees.