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The U.S. Court of Appeals for the Fifth Circuit, questioning the "entire factual underpinning" of the case, last month overturned a "sweeping" lower-court decision that ordered bilingual education for all Mexican-American children in Texas public schools.

In reversing the decision, the three-member panel found that U.S. District Judge William Wayne Justice erred last year when he ordered the Texas Education Agency (tea) to provide bilingual education in all grades of the state's public schools. The appellate panel said the state legislature's 1981 Bilingual and Special Language Programs Act would adequately serve Mexican-American children.

"The tea argued, in our opinion persuasively, that the Texas Legislature's enactment of the 1981 Bilingual and Special Language Programs Act made the court's injunctive relief unnecessary," the court wrote in its opinion.

The case, U.S. v. Texas, stems from a 1970 desegregation suit filed by the Justice Department, in which the state education agency was ordered to study the needs of minority children throughout the state, particularly students whose ability to speak English is limited.

In 1972, the League of United Latin American Citizens (lulac) and G.I. Forum, a Hispanic veterans' organization, intervened in the Justice Department's lawsuit on behalf of all Mexican-Americans in the state seeking compensatory education programs.

In 1975, together with the Mexican American Legal Defense Fund (maldef), the groups filed their own suit, charging the state education agency with "unequal treatment" of Mexican-American students.

In April 1981, Judge Justice ruled in fa-vor of the groups and ordered the state department of education to provide bilingual education for all Mexican-American students.

A few months after the lower court's ruling, the state legislature enacted the bilingual-education law requiring that native-language instruction be available through 6th grade in all districts. Districts must also provide native-language instruction in grades 7 through 12 if there are 20 or more students in any one grade whose proficiency in English is limited.

In its review of the evidence, the appeals court questioned the "entire factual underpinning" of the original judgment and held that there was insufficient evidence to support claims of discrimination against Mexican-Americans in the state's public schools.

The U.S. Supreme Court, it appears, saved some of its most contentious cases relating to education and child welfare for the final few days preceding its summer recess.

In addition to the major cases on library books, the education of the handicapped, and school desegregation, the Court issued several other education decisions in the last two weeks of its term.

In an unsigned (and little noted) opinion, the Court found that an Arkansas school board, and not a federal district court, had the right to interpret its own policies on student behavior.

The case, Board of Education of Rogers, Arkansas v. McCluskey, involved five 10th-grade students who were suspended for leaving school without permission and becoming intoxicated.

The students argued that the punishment was unfair because the school board's policy stipulated mandatory suspension for use of drugs and optional suspension for use of alcohol.

A U.S. district judge and an appellate court agreed, on the grounds that alcohol is not usually called a "drug."

The Supreme Court, however, found that the lower courts "plainly erred in replacing the board's construction [of its rules] with their own notions under the facts of the case."

The Court also:

Ruled, in Youngberg v. Romeo (commonly known as the "Pennhurst case,'' after the state institution involved) that mentally retarded people who have been committed to state institutions are entitled to safe conditions, freedom from unreasonable physical restraint, and minimally adequate training.

Ruled that, under Section 1983 of the Civil Rights Act of 1964, individuals who believe they have been victims of discrimination may sue directly in federal court, without first exhausting state remedies. The case was Patsy v. Board of Regents of the State of Florida.

Found, in Rendell-Baker v. Kohn, that the employment practices of a private school in Massachusetts are not subject to public-employees' laws, even though the school derives a large proportion of its income from contracts with the state and local public-education agencies.

Declared that Mississippi University for Women, a state institution, may not exclude men from its school of nursing, because there is no evidence that "affirmative action" for women is needed in nursing, as the university claimed.

The case was Mississippi University for Women v. Hogan.

Upheld 20 states' bans on child pornography, even if it does not meet the Court's legal standard for obscenity.

In Tennessee, a challenge to a school-prayer law was heard on July 26 by U.S. District Judge L. Clure Morton. The law, passed by the 1982 legislature, sets aside one minute at the beginning of the school day for "meditation, or prayer, or personal beliefs." The suit charging that the law was unconstitutional was filed by the American Civil Liberties Union (aclu) of Tennessee.

In the oral arguments, aclu attorneys argued that the law is unconstitutional--a violation of First Amendment rights. The state, as expected, took the opposite position. Attorneys for both sides were to file briefs by Aug. 15. Education officials hope that the decision will be handed down before school opens at the end of August. The judge, however, made no promises.

On June 28, a federal judge dismissed a suit brought by proponents of Louisiana's creationism law, who sought to have it declared constitutional.

U.S. District Judge Frank Polozola--who has promised to deliver a more comprehensive explanation of his reasons for dismissing the suit--said there is no need for the federal court to involve itself in a dispute between the state legislature, the attorney general, and the state superintendent of education. The matter, the judge said, belongs in a state court.

The trial had originally been scheduled for July 26.

Louisiana's creation-science law, passed last year, requires "balanced treatment" of "creation science" and "evolution science" in the state's public schools. Last January, a federal judge struck down a similar law in Arkansas.

Louisiana's law had become the object of two lawsuits.

The dismissed suit, Keith v. Louisiana Department of Education, was filed in U.S. District Court in Baton Rouge by the state attorney general, William J. Guste Jr., on behalf of numerous plaintiffs--including the legislative sponsor of the law, State Senator Bill Keith--against the state education department, the state superintendent of education, and the state board of education.

J. Kelly Nix, state superintendent of education, has said he will not enforce the law until the court has decided whether it is constitutional.

After Judge Polozola decided against hearing the suit, the Louisiana chapter of the American Civil Liberties Union (aclu) filed a motion to proceed with the second suit, Aguillard v. David C. Treen, filed in federal district court in New Orleans.

In this suit, the aclu argues that Louisiana's law violates the rights of the plaintiffs--who include clergy, parents, teachers, and scientists--to be free of state-sponsored religion and their right to academic freedom. Also, the aclu charges, the law is unconstitutionally vague.

U.S. District Judge Adrian Duplantier had stayed action in the aclu suit pending Judge Polozola's ruling. He has lifted the stay and will hear motions to dismiss the case on Aug. 25.

In Medford, Ore., a group called Medford Citizens for Balanced Education that has worked for voluntary teaching of creationism in area public schools has decided to wait until the Louisiana case is settled before proceeding with plans for a special election on the issue.

The U.S. Court of Appeals for the Ninth Circuit ruled late last month that high-school students writing for their school newspaper do not have a constitutional right to be free from prepublication review by the school principal.

The appellate court also said that a school newspaper's faculty adviser does not have a personal First Amendment right to encourage publication of controversial articles in a school paper he or she supervises.

These rulings were handed down in the case of Nicholson v. Board of Education of Torrance Unified School District, et al., which involved Don Patrick Nicholson, a probationary journalism teacher at Torrance (Calif.) High School from 1968 to 1970. Mr. Nicholson, who served as adviser to the school newspaper, charged that his First and 14th Amendment rights had been violated when he was fired for, among other things, refusing to submit the paper's stories to the principal for prepublication review.

The appeals court upheld the decision of a federal district court, which ruled against Mr. Nicholson, arguing that he had failed to show that his First Amendment rights had been infringed when the Torrance school system fired him.

The appellate court's decision read in part: "It is now well-established that secondary students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' ... However, these rights are not coextensive with those of adults and may be modified or curtailed by school policies that are reasonably designed to adjust those rights to the needs of the school environment."

As a result, the court said, "administrative review of a small number of sensitive articles for accuracy rather than for possible censorship or official imprimatur does not implicate first amendment rights."

The controversial articles at issue in the case included a feature story on minority unrest in a local community, an article on police-student relations, and a critical commentary on the school's treatment of the constitutional rights of students.

In late June, a federal district judge in New York found one of the state's education agencies guilty of copyright violations for videotaping television programs for later classroom use. The suit was brought against the Board of Cooperative Educational Services (boces)--a nonprofit state agency that works with 19 school districts in the Buffalo area--by three film companies, the Encyclopaedia Britannica Educational Corporation, Learning Corporation of America, and Time-Life Films.

boces had argued that its videotaping activities--which included taping of all daytime programs broadcast by the local public-television station during the 1975-76 school year--was protected by the Copyright Revision Act of 1976. That law permits "reasonable" reproductions of copyrighted works for educational purposes.

But the judge said that the defendants' large taping operation went too far.

The film companies argued that boces's taping impaired their ability to sell original copies of the same programs to schools.

The judge ordered boces to stop videotaping and instructed the two sides to work out a fair purchasing agreement for the existing tapes.

Vol. 01, Issue 40

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