Special Education

High Court Denies Hot-Button School Cases

By Mark Walsh — October 13, 2009 3 min read
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The U.S. Supreme Court declined last week to take up several appeals involving hot-button issues in public schools, including cases about the Pledge of Allegiance, T-shirts bearing Confederate symbols, peer sexual harassment, and special education.

The appeals were among several hundred turned aside by the justices on Oct. 5, the first day of the court’s 2009-10 term. The denials of review all came without comment by the justices and were not rulings on the merits of the appeals.

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The cases declined last week include the following:

PLEDGE OF ALLEGIANCE
Frazier v. Smith (Case No. 08-1351)

The justices declined to hear a challenge to a Florida law that requires students to have parental permission before they may refuse to participate in daily recitations of the Pledge of Allegiance.

The law was challenged by Cameron Frazier, who, as a student at Boynton Beach Community High School in the Palm Beach County school district in 2005, was rebuked by a teacher who questioned his patriotism for refusing to stand or recite the pledge. A federal district court ruled in favor of Mr. Frazier and held the state law unconstitutional. Florida appealed, and a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the law last year.

The appeals court ruled that the law was meant to vindicate parents’ rights to control the upbringing of their children.

“We conclude that the state’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech,” the appeals court said.

The appeals panel struck down, however, a provision requiring students to stand even if they had permission not to recite the pledge.

In their appeal to the justices, lawyers for Mr. Frazier argued that the 11th Circuit’s ruling was inconsistent with the Supreme Court’s 1943 decision in West Virginia State Board of Education v. Barnette, which recognized a right of conscience for students to refuse to recite the pledge.

CONFEDERATE FLAG
Barr v. LaFon (No. 08-1325)

Also denied was an appeal on behalf of three Tennessee students who challenged 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 said they wanted to express their Southern heritage by wearing clothing depicting a Confederate flag.

The appeals court noted that school officials were responding to several racial incidents in enacting the ban. Those included an alleged physical altercation between black and white students at a basketball game, and several incidents of racist graffiti found in a boys’ restroom. Lawyers for the students who challenged the district argued there was no evidence that Confederate-flag symbols had caused disruptions at the school.

PEER SEXUAL HARASSMENT
Hudson Area Schools v. Patterson (No. 09-143)

The justices turned down the appeal of a Michigan school district that faces potential liability under Title IX of the Education Amendments of 1972 for its response to the sexual harassment of a student by his peers.

The suit filed by the parents of the harassed boy alleges that the Hudson Area district in Michigan failed to respond adequately to a pattern in which students, starting when the boy was in 6th grade and continuing into 9th grade, harassed him almost daily with taunts such as “queer” and “faggot,” and that officials tolerated a sexual assault of the boy by another student in a locker room.

A panel of the 6th Circuit appellate court held early this year that the suit filed by the parents of the harassed student should go to trial. School officials were aware, the appeals court said, that verbal reprimands of some students who harassed the victim “were not stopping the overall harassment” of him.

The school district maintained in court papers that it did take aggressive action in response to the harassment, and it urged the justices to review the lower court’s denial of summary judgment.

SPECIAL EDUCATION
L.M. v. Capistrano Unified School District (No. 08-1414)

The justices declined an appeal stemming from two California parents challenge to a school district policy that limited the parents’ educational expert to only 20 minutes observation of the districts proposed school placement for their son, who has autism. The parents contended the time limit violated their rights under the federal Individuals with Disabilities Education Act, but they lost before a panel of the U.S. Court of Appeals for the 9th Circuit.

Mark Walsh is a contributing writer for Education Week.
A version of this article appeared in the October 14, 2009 edition of Education Week as High Court Denies Hot-Button School Cases

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