Hot-Button Education Appeals Pending in Supreme Court

By Mark Walsh — September 23, 2009 5 min read
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The U.S. Supreme Court decided several important education cases in its last term, in areas such as student searches, sexual harassment, special education, and the adequacy of services for English-language learners.

For the term that officially begins Oct. 5, the justices have not granted full review in any major education cases--yet. But a handful of appeals pending at the court involve provocative issues, including the Pledge of Allegiance, Confederate T-shirts, challenges to books in public school libraries, and student religious messages at graduation ceremonies.

A decision by the court to grant review in one or more of these cases would quickly make the 2009-10 term far more interesting for educators, students, and parents. (I plan a post next week on the handful of cases granted for the new term that have some implications for education.)

Here are the hot-button appeals pending at the court (with emphasis, again, that these cases have not yet been granted review):

Pledge of Allegiance
A Florida law that requires students to have parental permission to decline to participate in daily recitations of the Pledge of Allegiance is being challenged in a lawsuit backed by the American Civil Liberties Union.

Cameron Frazier says in court papers he was singled out and humiliated at his high school in 2005 when he refused to stand for the pledge. The Florida law requires all students to stand and recite the pledge unless a parent provides written permission for a student to be excused.

A federal district court struck down the law on its face and as applied to Frazier, but a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held last year that the law was meant to vindicate parents’ rights to control the upbringing of their children, not students’ rights. The court struck down a provision requiring students to stand even if they have permission to not recite the pledge, but it upheld the parental-permission requirement.

The full 11th Circuit declined to rehear the case over the lone dissent of Judge Rosemary Barkett, who said “students possess basic rights of belief and expression under the First Amendment independent of their parents.”

In an appeal to the justices on behalf of Frazier, the ACLU says the ruling runs smack up against the Supreme Court’s 1943 decision in West Virginia State Board of Education v. Barnette, which recognized a right of conscience that barred schools from compelling students to recite the pledge.

The appeal in Frazier v. Smith (Case No. 08-1351) is on the high court’s list for its Sept. 29 private conference, when the justices will discuss appeals that have piled up over the summer.

Confederate Symbols
Also pending on the Sept. 29 conference list is an appeal on behalf of three Tennessee students who challenge their school district’s prohibition of displays of the Confederate flag.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year in favor of the Blount County, Tenn., school district and administrators in a challenge to the prohibition by students who say they wish to express their Southern heritage by wearing clothing depicting the Confederate flag.

The appeals court pointed to facts in the record about several racial incidents at William Blount High School, including an alleged physical altercation between black and white students at a basketball game in 2005, and several incidents of racist graffiti found in a boys’ restroom, including one depicting a noose.

Lawyers for the students who challenged the district argued there was no evidence that Confederate flag symbols had caused disruptions at the school. Their appeal is Barr v. LaFon (No. 08-1325).

Book Challenge
A controversy over a children’s book called ¡Vamos a Cuba!, or A Visit to Cuba, is the basis of another appeal brought to the Supreme Court by the American Civil Liberties Union of Florida.

A panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled 2-1 in February that the Miami-Dade County, Fla., school board did not violate the First Amendment when it removed the Cuba book from the shelves of school libraries.

As I noted in this post about the appeals court decision, the majority and dissenting opinions total 177 pages in the case about a book for 4- to 8-year-old readers that is only 26 sentences long.

In 2006, a Miami-Dade father objected to the presence of the book in his daughter’s elementary school because of inaccuracies and because the book’s descriptions about daily life, such as that “people in Cuba eat, work, and go to school like you do,” ignored the realities of the Communist regime under leader Fidel Castro.

The Miami-Dade school board’s 6-3 decision to remove the book was struck down by a federal district court but upheld by the 11th Circuit court panel, which said “overwrought rhetoric about book banning has no place here.”

The appeal to the Supreme Court in American Civil Liberties Union of Florida v. Miami-Dade County School Board (No. 08-1564) raises questions about whether the appeals court failed to show proper deference to the district court’s factual findings.

The appeal was originally on the court’s Sept. 29 conference list, but the court has requested a response from the Miami-Dade County School Board, which initially declined to file any brief in the case.

Religious Message at Graduation
In the latest in a series of controversies over high school graduation ceremonies, a student who was disciplined for offering a testimonial to Jesus Christ at her commencement is asking the Supreme Court to review her case.

Erica Corder was one of 15 co-valedictorians at Lewis-Palmer High School in Colorado in 2006, and each was allowed to offer a 30-second valedictory message, according to court papers. Corder used her time for a testimonial to Jesus, after which her principal withheld her diploma and said she would not receive it unless she offered a public apology. She did so, and her apology was distributed via e-mail to her school community. But she filed a lawsuit alleging that her First Amendment free speech and free exercise of religion rights were violated.

Both a federal district court and the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled for the Lewis-Palmer School District and other defendants. The 10th Circuit panel held in May that the valedictory speeches were under the control of the district and school officials could exercise editorial control over them.

The Supreme Court requested a response to the appeal in Corder v. Lewis Palmer School District (No. 09-257) after the district initially declined to file a brief.

A version of this news article first appeared in The School Law Blog.