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Published in Print: June 14, 2000, as Law Update

Law Update

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Dispute Over Crayons Leaves Suspended Teacher Red-Hot

To the superintendent of a Pennsylvania school district, it was the Great Crayon Caper.

An art teacher in the Upper Dublin district was spotted loading cartons of Crayola crayons into her car. She said she was planning to donate the unused supplies to a children's community center. The district suspended her and filed a theft complaint with police.

But color the superintendent Midnight Blue after a federal appeals court revived the teacher's federal civil rights lawsuit against him and the district. The court ruled last month that a jury might reasonably conclude that the superintendent was retaliating against the teacher for speaking out publicly in favor of removing The Adventures of Huckleberry Finn from the district's reading list.

"To arrest a teacher on the scanty grounds adduced here ... is shocking," said the 2-1 ruling by the U.S. Court of Appeals for the 3rd Circuit last month.

The case involves Lou Ann Merkle, who taught art at Sandy Run Middle School in Upper Dublin, a suburb of Philadelphia. Ms. Merkle, an outspoken advocate of multicultural awareness, had argued at a school board meeting in support of a parent's request to remove Huckleberry Finn because of concerns about the novel's depiction of blacks. According to court documents, the teacher was later criticized by her principal for challenging district policy at a board meeting.

The case began in August 1997, when Ms. Merkle and another art teacher were cleaning out a supply closet at Sandy Run. Ms. Merkle said she was loading two cartons containing 144 boxes of crayons into her car so she could donate them to a community center for underprivileged children. Her principal approached her and told Ms. Merkle she needed permission to donate excess school supplies. The crayons were put back, and the principal consulted the superintendent, Clair Brown Jr.

Mr. Brown told the principal to call the police, but he also put in a call himself to the chief of the Upper Dublin police department, a friend of his. The superintendent said the district wanted to press charges, even after the police chief asked, "Are you sure you want to do this?"

The district said the supplies were worth as much as $400, while Ms. Merkle said they were worth no more than $24.

Ms. Merkle was charged with theft and suspended from her job without pay. But the charges against her were later dismissed, and, through an administrative proceeding, the teacher won reinstatement to her job with back pay. She has since left the 4,300-student district.

Ms. Merkle filed a civil rights lawsuit against the police department, the principal, the superintendent, and the district, charging among other things that the district retaliated against her for speaking out about Huck Finn in violation of her First Amendment free-speech rights. A federal district judge granted summary judgment to all the defendants.

In its May 9 ruling, the 3rd Circuit appellate panel affirmed the summary judgment for the police department and the school principal. But it reversed that decision for the superintendent and the district.

The majority on the Philadelphia-based panel found it significant that the superintendent had persisted in pressing criminal charges even when the police suggested that administrative action might be more appropriate. Mr. Brown also recommended to the school board that the teacher be dismissed on the ground of "immorality."

Whether the superintendent acted out of retaliation for Ms. Merkle's outspokenness on multicultural issues or out of concern that valuable school supplies were being stolen "is a disputed question of fact for a jury" to decide, the court majority ruled.

"We conclude that a jury could find that Brown, and through him the school district, acted maliciously in pressing unfounded criminal charges against Merkle and could reasonably infer that Merkle's protected speech was a motivating factor in this course of action," said the majority opinion by U.S. Circuit Judge Max Rosenn.

The dissenting judge said "it is perfectly plain that Merkle was the only person who did anything wrong."

The school district "had cause to believe that Merkle was exercising unlawful control over its property with an intent to deprive the school district of the property," U.S. Circuit Judge Morton I. Greenberg wrote.

The court's opinion offered no word on what happened to the crayons.

Drug and Tobacco Testing

Testing students who drive to school and those involved in extracurricular activities for drug and alcohol use passes muster under the 4th Amendment, a federal appeals court has ruled. But testing those same categories of students for tobacco use is an unreasonable search, the panel of the U.S. Court of Appeals for the 7th Circuit held last month.

The Chicago-based appeals court, which covers Illinois, Indiana, and Wisconsin, had already upheld random drug testing of students in extracurricular activities in a 1998 decision, so the latest ruling regarding those students adheres to circuit precedent. The three current members of the court panel said they would probably not uphold drug testing of students in extracurricular activities if not for the earlier ruling.

The latest case concerned a challenge to the testing policy of the 10,000-student Penn-Harris-Madison school district in northern Indiana. In its May 12 ruling, the 7th Circuit panel unanimously upheld the random drug and alcohol testing of students who drive to school because "the danger is well-defined" for use of those substances.

However, the district cannot justify its policy of testing for nicotine use, the court said. Because some students are over 18 and can legally use tobacco, it pointed out, they "could be sanctioned under [the district's] policy for a perfectly legal activity."

The court also expressed concern about "a slippery slope" that could eventually result in random drug testing of all students.

"The case has yet to be made that a urine sample can be the 'tuition' at a public school," the court said.

—Mark Walsh

Vol. 19, Issue 40, Page 11

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