Developments in Federal & Constitutional Law

Kirk Strang recently presented his School Law Update at the July 2023 WASDA Summer Legal Seminar.

If you missed the presentation, or would like a second look at what Kirk shared, you’ve come to the right place. We’ve been rolling out the information Kirk presented right here on our blog, covering all six of the following topics …

1. New Wisconsin Laws Enacted & Proposed
2. New Federal Laws Proposed
3. Developments in Federal Constitutional Law
4. Open Meetings & Public Records Laws
5. Wisconsin Decisions
6. Artificial Intelligence (AI) in Schools

Next up is Part 3 of the series, which dives into developments in federal & constitutional Law — including discussion regarding the first amendment as it pertains to student and employee speech, the Individuals with Disabilities Act (IDEA), Americans with Disabilities Act, Title IX, and religious discrimination.

Let’s get started …

FIRST AMENDMENT

1. N.J. by Jacob v. Sonnabend, 37 F.4th 412 (7th Cir. 2022). 
   
   Relevant Facts:
   
   Two students, N.J. and A.L., who were enrolled in different schools, wore shirts bearing images of guns to school. N.J. wore a T-shirt displaying a Smith & Wesson logo with the image of a revolver. A.L. wore a T-shirt displaying a Wisconsin Carry, Inc. logo and the image of a handgun. 
   
   Both schools decided that the shirts violated their respective dress code policies. Neither school’s dress code banned images of firearms, specifically; however, administration deemed the T-shirts “inappropriate.”
   
   The students sought a permanent injunction against the enforcement of the dress code policies on the basis that the prohibitions violated their First Amendment free speech rights. 
   
   The district court initially found in favor of the School Districts, granting their motion for summary judgment. However, on June 15, 2022, the Seventh Circuit Court of Appeals vacated and remanded the district court’s decision.
   
   Court Ruling:
   
   The Seventh Circuit determined that the lower court made a doctrinal error in its decision, improperly applying the Muller standard for evaluating speech restrictions. The court’s analysis should have been governed by Tinker. 
   
   In Muller, the Seventh Circuit held that: (1) the school was a non-public forum because it had not been opened for ”indiscriminate use by the public,” and (2) the Tinker test did not apply in non-public forums where the speech restriction was viewpoint neutral. 
   • This case established the Muller test, which asks whether the restriction on student expression is reasonably related to legitimate pedagogical concerns. 
   • The Tinker test, in contrast, asks whether the speech or expression “materially and substantially interfer[es] with the requirements of appropriate discipline in the operation of the school” or invades “the rights of others.”
     
     The Seventh Circuit’s determination in this case overrules Muller. Accordingly, the Tinkertest does apply in schools where the speech restriction is viewpoint neutral. 
     
     The Seventh Circuit held, in part, that:
     The student’s shirt, which depicted a firearm and message in favor of the right to bear arms, implicated constitutionally protected speech; and 
     The student’s First Amendment challenge was governed by Tinker.
     
     Because the lower court failed to apply Tinker, the Seventh Circuit remanded the case to give it the opportunity to do so.
2. Dodge v. Evergreen School District #114, 56 F.4th 767 (9th Cir. 2022). 
   
   Relevant Facts:
   
   The Plaintiff, Eric Dodge, was a teacher in the Evergreen School District #114. Prior to the 2019-202 school year, Dodge wore a hat with the term “MAGA” to staff training. 
   
   District staff and the professor leading the staff training reported concerns to the building principal, Caroline Garrett. Principal Garrett spoke with Dodge and asked him to use “better judgment” in the future. The following day, however, Dodge again wore the hat to staff training. 
   
   Later that day, Principal Garrett allegedly told Dodge, “[N]ext time I see you with that hat, you need to have your union rep.” Dodge filed a harassment, intimidation, and bullying (HIB) complaint against Principal Garrett and requested a transfer to a different school. 
   
   HR Officer Gomes initiated an investigation, which determined that Principal Garrett had not violated school policy. Although the school board affirmed this determination, the board also shared concerns about Principal Garrett’s professionalism and honesty. Principal Garrett resigned at the end of the school year.
   
   Dodge brought suit against Principal Garrett, HR Officer Gomes, and the School District under 42 U.S.C. § 1983 for retaliating against him for engaging in protected political speech in violation of the First Amendment. 
   
   The district court granted summary judgment in favor of the district. Upon appeal, the Ninth Circuit reversed in part and affirmed in part.
   
   Court Ruling:
   
   The Court first considered whether Dodge engaged in protected speech, which depends on two inquiries: (1) whether he “spoke on a matter of public concern,” and (2) whether he “spoke as a private citizen or public employee.”
   
   The hat at issue displayed the presidential campaign slogan, “MAGA,” used by Donald Trump. The Court concluded that the hat had an obvious political nature and implicated matters of public concern. 
   
   The court also determined that Dodge acted as a private citizen when he wore the hat. Dodge wore the hat to a staff training, not in front of students, and the hat was unrelated to his official duties. Because Dodge spoke as a private citizen on a matter of public concern, the Court concluded that Dodge had engaged in protected speech. 
   
   The court next considered whether an adverse employment action occurred. It concluded that Principal Garrett’s implied threat of disciplinary action was an adverse employment action because it was “reasonably likely to deter” his speech. In addition, there was no dispute that Principal Garrett’s actions were motivated by Dodge’s speech.
   
   Principal Garrett contended that the school’s interest in preventing disruption outweighed Dodge’s right to free speech. The Court disagreed, finding no evidence of an “actual or tangible disruption to school operations.”
   
   The Ninth Circuit reversed the district court's grant of summary judgment in favor of Principal Garrett.

3. Chen v. Albany Unified School District, 56 F.4th 708 (9th Cir. 2022).

   Relevant Facts:

   A group of high school students shared posts on a private Instagram account, which included “disturbing posts that targeted vicious invective with racist and violent themes against specific black classmates.”

   After the Instagram posts began to circulate among students at school, and multiple students became too upset to attend class, the students responsible for the account were expelled. The students sued, arguing that the District violated their free speech and due process rights.

   Court Ruling:

   The Court concluded that the speech “bore a sufficient nexus” to the school and its students. The posts caused significant disruption at school, particularly with those students who were targeted in the posts. Although the creator of the account attempted to keep it private, it was reasonably foreseeable that the content would eventually reach the school. 

   As a result, the District’s discipline did not violate the students’ free speech rights.

FIRST AMENDMENT — STUDENT SPEECH 

1. On-Campus Speech:
   • Indecent, lewd, vulgar, obscene, or plainly offensive. 
   • Reasonably construed to promote illegal drug use. 
   • Part of the curriculum or school-sponsored activities. 
   • Conveys a true threat.
   • Materially disrupts classwork, involves substantial disorder, or invades the rights of others.
2. Off-Campus Speech:
   1. Involves serious/severe bullying or harassment that targets particular individuals.
   2. Threatens students or teachers.
   3. Breaks rules related to lessons, writing papers, using computers, or participating in other online school activities.
   4. Breaches school security devices, including material maintained within school computers.

FIRST AMENDMENT — EMPLOYEE SPEECH

1. Pickering-Connick Doctrine. Under the Pickering-Connick doctrine, the First Amendment does not protect public employees when their free speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.
   
   Factors relevant to the balancing test include whether the speech:
   • Impaired the maintenance of discipline by supervisors;
   • Impaired harmony among coworkers;
   • Damaged close personal relationships;
   • Impeded the performance of the public employee’s duties;
   • Interfered with the operation of the institution; 
   • Undermined the mission of the employer;
   • Was communicated to the public or to coworkers in private;
   • Conflicted with the job responsibilities of the employee; or
   • Abused the authority and public accountability that the employee’s role entailed.

INDIVIDUALS WITH DISABILITIES ACT (IDEA)

1. Luna Perez v. Sturgis Public Schools, 143 S.Ct. 859 (2023). 
   
   Relevant Facts:
   
   Miguel Luna Perez was a high school student in the Sturgis Public School District. Mr. Perez is deaf, so he was provided with a sign language interpreter during classroom instruction. Several months before Mr. Perez was due to graduate from high school, the District informed him that he would not be awarded a diploma. 
   
   Mr. Perez and his family filed a complaint with the Michigan Department of Education, alleging that the District failed its duties under IDEA and other laws. They alleged that the District provided unqualified sign language interpreters for classroom instruction, and at times, the interpreters were absent from the classroom for hours. One interpreter, they allege, was still teaching herself sign language. Mr. Perez and his family also alleged that the District misrepresented Mr. Perez’s academic progress and indicated that he was on track to graduate. The District informed Mr. Perez that he would not graduate mere months before the anticipated graduation date.
   
   Mr. Perez and the District reached a settlement agreement before the matter progressed to hearing. The District agreed to provide forward-looking equitable relief. 
   
   Mr. Perez then filed suit in federal district court under the ADA. His suit was based on the same circumstances but, in contrast, sought backward-looking relief: compensatory damages. 
   
   The District brought a Motion to Dismiss, arguing that IDEA barred Mr. Perez’s suit, because Mr. Perez had not exhausted administrative procedures under IDEA. The district court granted the District’s Motion to Dismiss. On appeal, the Sixth Circuit affirmed. The Supreme Court reversed and remanded.

   Court Ruling:

   The Individuals with Disabilities Act (IDEA) provides that the act shall not “be construed to restrict” an individual’s ability to seek “remedies” under the ADA or “other federal laws protecting the rights of children with disabilities.” However, the act also sets forth an exception to this rule: an individual must exhaust IDEA’s administrative procedures before he/she may file a civil action under another federal law if the relief sought is available under the IDEA.

   IDEA’s administrative procedures include a “due process hearing” before a local or state administrative official, followed by an “appeal” to the state education agency. 
   
   The Sturgis Public School District argued that Congress’ intent was to route claims to administrative agencies, due to the agencies’ “special expertise” in educational services. However, the court noted that “it is ... our job to apply faithfully the law Congress has written,” and “[w]e cannot replace the actual text with speculation as to Congress’ intent.” The act, as written, allows an individual to circumvent IDEA’s administrative procedures, and file under another federal law, if the relief sought is not available under the IDEA.

   In this case, the student brought a suit under ADA for compensatory damages. IDEA does not provide relief through the award of compensatory damages. As a result, the student was not required to exhaust IDEA’s administrative procedures before bringing his suit under ADA.
       
   The Supreme Court held that IDEA's administrative exhaustion requirement does not preclude a lawsuit brought under another federal law if the plaintiff seeks relief not available under IDEA.

AMERICANS WITH DISABILITIES ACT

1. Kincaid v. Williams, 600 U.S. ___ (2023).

   Relevant Facts:
   
   The appellant, Kesha Williams, is a transgender woman diagnosed with gender dysphoria. Williams was incarcerated in the Fairfax County Adult Detention Center, where she was initially placed in women’s housing. Williams was soon moved to men’s housing after deputies discovered that she was biologically male. 
   
   Williams alleged that she experienced harassment by inmates and prison deputies and delays in medical treatment. 
   
   Upon her release, Williams filed a § 1983 action, alleging, in part, violations of the Americans with Disabilities Act (ADA). The district court dismissed the case; however, the Fourth Circuit Court of Appeals reversed and remanded.

   Fourth Circuit Ruling: 
   
   The ADA defines the term “disability” broadly to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.” An exception to this definition is “gender identity disorders not resulting from physical impairments.”
   
   The Defendant argued that Williams’ gender dysphoria fell under this exception and barred her ADA claim.
   
   The Fourth Circuit held that Williams’ gender dysphoria did not fall under the exception. As a matter of first impression, the court held that gender dysphoria is not a “gender identity disorder” within the meaning of the ADA. As a result, her ADA claim was not barred. 
   
   The Defendant, the Fairfax County Sheriff, filed a petition for a writ of certiorari.
   
   Court Ruling:
   
   The Supreme Court denied the petition for a writ of certiorari.

TITLE IX

1. Adams by and through Kasper v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022).

   Relevant Facts:
   
   A transgender pupil in the St. Johns County School District sought to use the bathroom associated with his preferred sex. The pupil, Drew Adams, is biologically female but identifies as male. 
   
   In the eighth grade, Adams began publicly identifying as male, adopting male pronouns, dressing in a traditionally male manner, and using the boys’ bathroom. Adams continued to use the boys’ bathroom upon beginning high school in 2015. 
   
   The School District has traditionally required that biologically female students use the girls bathroom and biologically male students use the boys bathroom. When district staff became aware of Adams’ use of the boys bathroom, they instructed Adams to only use either the communal female bathrooms or one of the single-stall, sex-neutral bathrooms.
   
   Adams filed suit under 42 U.S.C. § 1983, alleging that the school board’s policy violated the Equal Protection Clause and Title IX. The district court ruled in favor of Adams. Upon appeal, a divided panel of the Eleventh Circuit affirmed. However, the Court later granted the School Board’s petition for rehearing en banc.

   The Eleventh Circuit reversed.

   Court Ruling:

   The Eleventh Circuit held that the school bathroom policy did not violate transgender student's equal protection rights and did not violate Title IX.
   Adams contends that the school board’s bathroom policy discriminates on the basis of sex and transgender status. The Court disagreed.

   • Discrimination on the Basis of Sex.

     The Court first noted that the school board has gone to great lengths to accommodate LGBTQ students. For instance, transgender students are provided with a gender-neutral bathroom and are not required to use the bathroom of their biological sex.

     The Court also recognized that a school board has “an important governmental objective in protecting students’ privacy interests in school bathrooms.” The school board’s policy “has a close and substantial bearing on” that objective.

     The Court concluded that students’ use of the bathroom is not limited to using individual stalls. Students continue to have a privacy interest in their activities outside of those stalls, such as changing clothes. As a result, intermediate scrutiny was satisfied. The policy did not discriminate on the basis of sex.

   • Discrimination on the Basis of Transgender Status.
     The Court also held that the policy did not discriminate based on transgender status.

     The Court reasoned that the bathroom policy is based on students’ biological sex, not their transgender status. Even if the policy had a disparate impact on transgender students, it was not motivated by “purposeful discrimination.” 

   • Title IX.
     The Court determined that the term “sex” as used in Title IX is not ambiguous. The statutory context implies that “sex” means “biological sex” and does not include “gender identity” or “transgender status.” As a result, the Court held that the bathroom policy did not violate Title IX.

RELIGIOUS DISCRIMINATION

1. Kluge v. Brownsburg Community School Corp., 64 F.4th 861 (7th Cir. 2023).

   Relevant Facts:
   
   A high school teacher, John Kluge, brought suit against the Brownsburg Community School Corporation, alleging that the school discriminated against him on the basis of his religious beliefs and retaliated against him for seeking accommodation. 
   
   School policy requires that high school teachers address students by the names in the official student database. The names in this database included the preferred names of transgender students. Due to his religious beliefs, Kluge objected to using names that were inconsistent with a student’s biological sex. 
   
   Kluge requested accommodation in the form of using only his students’ last names. Although the school initially accepted this accommodation, it later determined that the practice had a negative impact on Kluge’s students and the learning environment as a whole.
   
   The Human Resources Director, on behalf of the Superintendent, informed Kluge that he could either comply with the Name Policy; resign; or be terminated. Kluge chose to resign. 
   
   Several weeks later, however, Kluge informed school officials that he intended to withdraw his resignation. Later that day, Kluge’s access to the building and online services was revoked. At the School Board meeting on June 11, 2018, Kluge asked the board to withdraw his resignation; however, the board instead voted to accept his resignation.
   
   After Kluge brought suit, the district court granted summary judgment in favor of the school. The Seventh Circuit affirmed.

   Court Ruling:
   
   The Court first conceded that, for the purpose of this appeal, Kluge had established a prima facie case of failure to accommodate a religious practice. 
   
   When this failure has been established, the burden shifts to the employer to demonstrate that it could not reasonably accommodate “without undue hardship on the conduct of the employer's business.” In this case, the school asserted that Kluge’s accommodation negatively impacted the learning environment for transgender students and others. In addition, Kluge’s accommodation made the school vulnerable to potential Title IX claims by transgender students. 
   
   The Court concluded that the undisputed evidence demonstrated that Kluge's accommodation harmed students and disrupted the learning environment. Notably, “Title VII does not require the school to adopt an accommodation that, although facially neutral, does not work that way in practice.”
   
   Moreover, Kluge's retaliation claim fails because he could not produce any evidence supporting a causal link between his activity and the adverse action, or any evidence that the school's explanation for its actions was a pretext for religious discrimination.

   The Court found in favor of the school.

This brings us to the end of Part 3 of our series. Next up, in Part 4, we cover open meetings and public records law.

In the meantime, if you missed them, you can also check out previous installments of this series here:
School Law Update, Part 1: New Wisconsin Laws Enacted & Proposed
School Law Update, Part 2: New Federal Laws Proposed