student dress codes

Just Business or Tortious Interference? Page 1 of 21 "SCHOOL LAW ISSUES" - presented at at NBI School Law Issues in Indiana Seminar By Robert M. Kelso STUDENT DRESS CODES A. Constitutional Requirements. 1. United States Constitution. Constitutional requirements applied by courts in challenges to student dress codes generally proceed under two amendments to the United States Constitution, the First Amendment and the Fourteenth Amendment, which provide as follows: AMENDMENT 1 Religious and political freedom. -- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. AMENDMENT 14 § 1. Citizenship--Due process of law--Equal protection.--All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. United States Constitution, Amendments 1 and 14, Section 1. Just Business or Tortious Interference? Page 2 of 21 2. Indiana Case Law. The leading Indiana case analyzing constitutional requirements in the context of student dress codes is Hines v. Caston School Corporation, 651 N.E.2d 330 (Ind. Ct. App. 1995). The issue in the Hines matter was whether the school’s rule prohibiting the wearing of earrings by male students violated the plaintiff male student’s constitutional rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The Court’s discussion began with a reminder that students have constitutional rights: It is well-settled in American jurisprudence that neither teachers nor students shed their constitutional rights "at the schoolhouse gate." Tinker v. Des Moines Indep. Com. Sch. Dist. (1969), 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731. "In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State." Hines, 651 N.E.2d at 332. Using the approach of the United States Supreme Court in Kelley v. Johnson, 425 U.S. 238 (1976), the Court assumed the existence of a liberty interest in matters of personal appearance pursuant to the due process clause of the Fourteenth Amendment. Hines, 651 N.E. at 332-33. The Court listed and distinguished three Seventh Circuit cases addressing student challenges to public school hair-length regulations, as follows: Breen v. Kahl (7th Cir.1969), 419 F.2d 1034, 1036, cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268; Crews v. Cloncs (7th Cir. 1970), 432 F.2d 1259; and Arnold v. Carpenter (7th Cir. 1972), 459 F.2d 939. The Hineses argue that these "long hair" cases provide a standard for evaluating the present case. We find Breen, Cloncs, and Arnold distinguishable in that "it would be impossible to comply with the long hair regulation during school hours and follow the wishes of the students and their parents as to hair length outside the school." Breen, 419 F.2d at 1037-38. "[S] ince the impact of hair regulations extends beyond the schoolhouse gate, the degree of state infringement on personal rights is significantly greater than in many other areas of school discipline." Crews, 432 F.2d at http://www.k-glaw.com Just Business or Tortious Interference? 1264. In the present case, Jimmy’s freedom to wear an earring beyond the schoolhouse gate is in no way impaired by the school board’s rule. Page 3 of 21 Hines, 651 N.E.2d at 333 (footnote 2). In analyzing the plaintiff’s claim, the Court applied the due process standard used by the United States Supreme Court in Kelly ("the test is whether the challenger can demonstrate that there is no rational connection between the policy and accomplishment of a public purpose.") Id. at 333. While the Court rejected several of the school’s arguments in favor of the male earring ban (claimed links between gangs, cults, homosexuality and drug use; and safety concerns), the Court did find the ban was valid under a due process standard, concluding as follows: It is reasonable that a community’s schools be permitted, within Constitutional strictures, to reflect its values, and it is a valid educational function to instill discipline and create a positive educational environment by means of a reasonable, consistently applied dress code. Under a due process standard, this is sufficient to show a rational relationship between the rule and "some purpose within the school’s competence." Thus, we agree with the trial court that the Hineses have failed to show that the earring ban serves no purpose rationally related to the educational function of the school and that, as a result, their due process challenge to the ban must fail. Coles at 335, (citations and footnotes omitted). The Court also rejected an equal protection challenge by the plaintiffs on the basis that the wearing of earrings by males was inconsistent with community standards of dress in Caston. 3. Other Case Law. Student dress codes have been the subject of numerous federal and other states’ cases, as follows: a. Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974) cert. den. 95 S.Ct. 185. District Court judgment declaring portion of grooming code relating to male student’s hair length unconstitutional, upheld as violative of Fourteenth Amendment. b. Olsen v. Board of Education, 676 F.Supp. 820 (N.D. Ill. 1987). The school’s anti-gang rule, which included a prohibition against the wearing of earrings by male students, was upheld on constitutional challenges, due process and equal protection. c. Jeglin v. Sanjacinto Unified School District, 827 F.Supp. 1459 (C.D. Cal. 1993). Anti -gang policy forbidding students from wearing clothing which identified any professional sports team or college, upheld against a First Amendment challenge as to high school students. d. Baxter v. Vigo County School Corp. 26 F.3d 728 (7th Cir. 1994). Elementary school student ’s First Amendment claims were dismissed, after principal prohibited student from wearing T-shirts critical of the school ("unfair grades", "racism"). http://www.k-glaw.com Just Business or Tortious Interference? e. Bivens v. Albuquerque Public Schools, 899 F.Supp. 556 (D.NM. 1995). Page 4 of 21 Anti-gang dress code which included ban on "sagging pants" upheld against vagueness and First Amendment challenges. f. Isaacs v. Howard County, Maryland School Board, 40 F.Supp.2d 335 (D.C. Md. 1999). School dress code prohibiting headwrap used by student to celebrate African-American and Jamaican cultural heritage upheld against First Amendment free speech and Fourteenth Amendment right to be secure in person. g. Stevenson v. Davenport Comm. School District, 110 F.3d 1303 (8th Cir. 1997); Chalifoux v. New Caney Ind. School Dist., 976 F.Supp. 659 (S.D. Tex. 1997). Policies against "gang-related apparel" struck down as unclear, vague or arbitrarily enforced. h. Phoenix Elementary School Dist. No. 1 v. Green, 189 Ariz. 476, 943 P.2d 836 (1997). A state’s highest court upholds constitutionality of mandatory uniform policy in a public middle school. i. Broussard v. School Board of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992). Discipline upheld as to student wearing a "drugs suck" t-shirt. B. Policy Issues and Suggestions. 1. Indiana Statutes. Indiana statutes specifically allow schools to make rules, and require that written discipline rules be established, as follows: In carrying out the school purposes of each school corporation, its governing body acting on its behalf shall have the specific powers: *** (17) To prepare, make, enforce, amend, or repeal rules, regulations and procedures for the government and management of the schools...and pupils and for the operation of its governing body, which rules, regulations and procedures may be designated by any appropriate title such as "policy handbook", "by-laws", or "rules and regulations". I.C.§20-5-2-2. The governing body of a school corporation must do the following: (1) establish written discipline rules, which may include appropriate dress codes, for the school corporation. http://www.k-glaw.com Just Business or Tortious Interference? I.C.§20-8.1-5.1-7(a). 2. Specific Local Schools’ Dress Codes. Some examples of local student dress codes: Page 5 of 21 The Board of Education, Metropolitan School District of Warren Township, has adopted a code of student conduct entitled "Student Rights and Responsibilities". With regard to dress and grooming habits, the code provides as follows: F. Dress and Grooming Habits STUDENTS ’ RIGHTS Students may dress and groom themselves in any manner that is not disruptive to the educational environment or dangerous to themselves or others. STUDENTS ’ RESPONSIBILITIES To dress and exhibit grooming appropriate for the educational activity and to follow the dictates of good taste. Student attire (tops, skirts, pants) should cover the student’s entire body. Belts, on pants, need to be properly secured. Students should not wear anything that is illegal, immoral or that promotes drug and alcohol use or sexual activity. To wear required safety devices or uniforms that insure the student’s safety or unrestricted movement. Pike Township, for some elective enrollment schools, has enacted a uniform policy. This generally provides for khaki pants and navy blue shirts. With respect to these elective enrollment schools, the policy is being "phased in" as new kindergarten classes start. The regular dress code for elementary school students at some Pike Township elementary schools, is as follows: Although we do not maintain a dress code as such, we do strongly feel certain types of clothing are not appropriate. We sincerely request your cooperation in adhering to these guidelines. Shorts are acceptable provided they are not gym-type shorts or short shorts. We would also discourage students from wearing halter tops, tank tops, sun suits, bike shorts and other extreme dress. Appropriate dress helps creates a more conducive learning environment. If the student’s clothing is not conducive to the room atmosphere and is distracting, we will request a change of clothes be brought to school. Dressing improperly and the act of wearing clothing creating undue attention are a disturbance within the school and interferes with one’s own learning or the learning of other students. These actions include wearing any apparel which displays offensive language or symbols. It could include but is not limited to hats, sunglasses, short shorts, bicycle shorts, clothing http://www.k-glaw.com Just Business or Tortious Interference? Page 6 of 21 with advertisements of alcohol, drugs or tobacco products or any other retailing clothing and we note that disciplinary action may result when a student’s dress is improper. SCHOOLS AND RELIGION A. The Constitutional Framework. There are two conflicting interests contained in the First Amendment relating to questions of schools and religion. The Establishment Clause (originally prohibiting Congress from making a law "respecting an establishment of religion", and later extended to government action in general) restricts public schools from promoting or subsidizing religion. The competing interest of the Establishment Clause with other First Amendment rights: the Free Exercise Clause (no law, i.e., government action, may prohibit the free exercise of religion), and the Freedom of Speech rights, provide the source of most school and religion legal issues. B. Church and State Separation. Legal issues involving the separation of church and state involve an examination of whether the challenged practice violates the Establishment Clause of the First Amendment. A leading case on this issue is Lemon v. Kurtzman, 403 U.S. 602 (1971). In holding that a school corporation has a duty to see that subsidized teachers do not inculcate religion, the Court stated a three-part test (sometimes referred to in later cases as the "Lemon test"), that in order to satisfy the Establishment Clause, a governmental practice must: (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive governmental entanglement with religion. See , Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973). The more recent cases of Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School District v. Doe, 530 U.S. ____, 147 L. Ed. 2d 295, 120 S. Ct. ___ (2000), are discussed later in these materials. C. Free Exercise. In addition to the prohibition respecting an establishment of religion, the First Amendment also precludes state action "prohibiting the free exercise" of religion. Most free exercise issues relate to exercise of third parties on school grounds, exercise by students, and exercise by teachers. The leading case as to third parties is Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993), in which the Supreme Court held that a school could not discriminate on the basis of religious viewpoint, by permitting school property to be used for the presentation of speech concerning family issues and child rearing and excluding those dealing with those issues from a religious viewpoint. http://www.k-glaw.com Just Business or Tortious Interference? Page 7 of 21 The free exercise rights of students often implicate the Equal Access Act, and the case of Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), which holds that if a public secondary school permits one "noncurriculum related student group" to meet on the school premises, the Act’s provisions require that the school may not deny other clubs, on the basis of the content of their speech, equal right to meet on school premises during "noninstructional time". Mergens, 496 U.S. at 236. As to teachers, their free exercise rights are limited by the establishment clause, because teachers’ actions may be considered actions of the state for that purpose. See, Lemon v. Kurtzman, 403 U.S. 602 (1971) (school corporation has a duty to see that subsidized teachers do not inculcate religion); Helland v. South Bend Community Schools, 93 F.3d 327 (7th Cir. 1996) (substitute teacher could be forbidden from bible-reading to students and removed from availability list for doing so). D. Common Religious Issues In Schools. 1. Prayers at School. A leading case regarding application of the Establishment Clause to public schools is Lee v. Weisman, 505 U.S. 577 (1992), which involved a challenge to prayers at high school graduation exercises. The Court held that including clergy who offered prayers as part of an official school graduation ceremony is forbidden by the Establishment Clause. The Court stated as follows: These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the statesponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accomodation by the State for the religious beliefs and practices of many of its citizens. See County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 US 573, 106 L Ed 2d 472, 109 S Ct 3086 (1989); Wallace v. Jaffree, 472 US 38, 86 L Ed 2d 29, 105 S Ct 2479 (1985); Lynch v. Donnelly, 465 US 668, 79 L Ed 2d 604, 104 S Ct 1355 (1985). For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus http://www.k-glaw.com Just Business or Tortious Interference? we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us. Page 8 of 21 Lee, 505 U.S. at 586-87. It is significant to note that the Court specifically stated that the invocation and benediction in question were invalid despite the facts that: a) attendance at the graduation was voluntary in a legal sense, b) the prayers were brief; c) there was a good-faith attempt to make the prayers acceptable to most persons, and d) for many persons, an occasion of such significance would lack meaning without such a religious exercise. Id. More recently, in Santa Fe Independent School Dist. v. Doe, 530 U.S. ____, 147 L.Ed. 2d 295, 120 S.Ct. ___ (2000), the Court’s majority affirmed the 5th Circuit, and held that the school district’s policy of permitting student-led, student-initiated prayer at football games violated the Establishment Clause. The Court applied the principles of Lee v. Weisman, and characterized the district’s policy as containing "sham secular purposes" that were merely an attempt to preserve the district’s "long-sanctioned practice of prayer before football games" by disguising it as private speech. Id. 147 L. Ed. 2d at 314-16. The peculiar facts of the Santa Fe case, would probably prevent it from controlling the outcome in Adler v. Duval County School Board, 206 F.3d 1070 (11th Cir. 2000), where a school district policy permitting graduating high school students to select a student, without any restrictions on the content of the speech, to deliver a commencement address did not violate the Establishment Clause. In the Adler matter, the Court applied the Lemon test and concluded the policy clearly had three non-"sham" secular purposes. In Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999), the Sixth Circuit Court of Appeals held that the Cleveland Board of Education’s practice of opening its meetings with a prayer was constitutionally prohibited. The Court described its dilemma in resolving the case as follows: This case puts the court squarely between the proverbial rock and a hard place. The rock is Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), holding the opening prayers at high school graduation ceremonies violate the Establishment Clause of the First Amendment. The hard place is Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed. 2d 1019 (1983), ruling that opening prayers are constitutionally permissible at sessions of a state legislature. Coles, 171 F.3d at 371. The Court, in resolving the matter, reviewed a number of United States Supreme Court decisions regarding its interpretation of the Establishment Clause: a. People of Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, http://www.k-glaw.com Just Business or Tortious Interference? Page 9 of 21 333 U.S. 203 (1948); and Engel v. Vitale, 370 U.S. 421 (1962). Both cases held that the practice of beginning classes each day with a prayer composed by the New York Board of Regents was unconstitutional. b. School Dist. of Abington Tp. v. Schempp, 374 U.S. 203 (1963). Court held that a state statute requiring schools to begin each day with readings from the Bible, was unconstitutional. c. Wallace v. Jaffree, 472 U.S. 38 (1985). Court invalidated state statute providing for "a period of silence...for meditation or voluntary prayer". Coles, 171 F.3d at 377-79. The Court distinguished the holding in Marsh, as to state legislatures, as "a historical aberration" and cited two other circuit court opinions regarding Establishment Clause issues: Doe v. Duncanville Indep. School Dist., 70 F.3d 402 (5th Cir. 1995) (declaring a school’s practice of permitting its basketball coach to initiate prayers at the beginning of games unconstitutional under the school prayer line of cases); Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989) (applying the school prayer cases to prohibit the practice of having an opening prayer at the beginning of high school football games). Coles, 171 F.3d at 383. Finally, the Court applied the Lemon test and found that the school’s practice failed all three prongs. Coles, 171 F.3d at 384-85. However, the Ninth Circuit also upheld a policy that permitted the top four students to speak on any topic of their choosing without state approval in Doe v. Madison School Dist. No. 321, 147 F.3d 832 (9th Cir. 1998), but the Court en banc ordered the district court to dismiss the complaint for lack of standing and mootness. Doe v. Madison School Dist. No. 321, 177 F.3d 789 (9th Cir. 1999). The Court allowed students to deliver prayers at graduation ceremonies pursuant to a school policy where the students were selected by purely academic criteria, the students controlled the content, and the school did not require a prayer. This school’s policy was different from the policy in Lee, and is consistent with the Court’s statement in Lee that: We recognize that, at graduation time and throughout the course of the educational process, there will be instances where religious values, religious practices, and religious persons will have some interaction with the public schools and their students. Lee, 505 U.S. at 598-99. It seems that a policy allowing student-initiated invocations at a high school graduation ceremony may be constitutional, so long as there is no restriction on the content of the student speech. That is, it must be voluntary, private speech by the students. 2. Use of School Property. The leading case dealing with use of school property by religious groups is Lambs Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). In Lambs Chapel, the Court held that if a religious group seeks access to school facilities, the policy standards used in evaluating the request should be the same as those used to evaluate requests from other outside community organizations. More recent cases dealing with this issue are as follows: a. Full Gospel Tabernacle v. Community School Dist. No. 27, 164 F.3d 829 (2nd Cir. 1999), cert. denied, 119 S. Ct. 2395 (1999). Holding that a school district could refuse to rent its facilities to a church for religious worship services on the grounds that state law and the school’s policies and regulations prohibited such use. http://www.k-glaw.com Just Business or Tortious Interference? Page 10 of 21 b. Bronx Household of Faith v. Community School Dist. No. 10, 127 F.3d 207 (2nd Cir. 1997), cert. denied, 118 S. Ct. 1517 (1998). Upholding school’s denial of access to school facilities to churches for religious worship services and instruction, even though school had previously (by mistake) granted access to other groups for religious worship. c. Liberty Christian Center, Inc. v. Board of Education of the City School Dist. Of the City of Watertown, 8 F.Supp. 2d 176 (N.D. N.Y. 1998). District Court held that school was chargeable with the knowledge that its facilities had been used for religious worship in the past, and therefore violated the constitutional rights of members of a religious group in denying them use of the school cafeteria for religious worship. In this opinion, the Court suggested that the school could adopt a written policy prohibiting groups or organizations from using the school’s facilities for religious worship or instruction. d. Peck v. Upshur County Board of Education, 155 F.3d 274 (4th Cir. 1998). The Court upheld a school policy allowing non-students to distribute bibles from tables placed in common areas. e. The Good News Club v. Milford Central School, 202 F.3d 502 (2nd Cir. 2000). The school excluded a youth organization affiliated with the Christian church from the use of school facilities for meetings involving prayer and religious instruction. The Court held that the school’s policy (which created a limited open forum and expressly prohibited the use of school facilities for religious purposes) was reasonable and viewpoint neutral, and the school’s acts did not violate the organization’s First Amendment free speech rights. f. Campbell v. St. Tammany’s School Board, 206 F.3d 482 (5th Cir. 2000). The school’s policy prohibited non-student groups from using school facilities for religious services or instruction, but permitted discussion of religious material or material containing a religious viewpoint. The Court held that the school did not engage in viewpoint discrimination when it denied the prayer group’s request to use school facilities for its meeting because the district’s use policy did not create an open forum. 3. Free Exercise Rights of Teachers. A recent case involving the free exercise rights of a Christian teacher is Marchi v. Board of Cooperative Educational Services, 173 F.3d 469 (2d Cir. 1999), cert. denied 120 S.Ct. 169 (1999). In that case, a teacher shared his religious experiences with his students. The school’s board, which employed him, directed that he stop using "references to religion in the delivery" of his "instructional program unless it is a required element of a course of instruction" and he has "prior approval" from his supervisor. Marchi,173 F.3d at 472-473. Subsequently, the teacher was charged with insubordination and suspended. He was allowed to return conditioned on his agreement to follow the school’s order. The Court found that the directive was constitutional, noting that a school risks violating the Establishment Clause "if any of its teachers’ activities gives the impression that the school endorses religion". Id. at 477. In Altman v. Bedford Central School Dist., 45 F.Supp. 2d 368 (S.D. N.Y. 1999), certain actions by teachers were held to violate the First Amendment rights of students. Catholic parents claimed the school’s program endorsed "Satanism, occultism, pagan religions and a New Age Spirituality" in violation of the free exercise clause. Altman, 45 F.Supp at 372. The Court found that the actions by teachers were not the responsibility of the school district, but were, nevertheless, found to violate the Establishment Clause. These actions included a teacher’s lesson plan which called for students to construct a paper image of a Hindu god, in a third grade class about the culture of India; and, the selling in the school store of brightly-colored "Worry Dolls" made by fourth grade students, violated the First http://www.k-glaw.com Just Business or Tortious Interference? Amendment by endorsing superstition over religion. Page 11 of 21 And, in older cases, a teacher was held to have a constitutionally-protected First Amendment right to wear a religious headwrap in Mississippi Employment Security Commission v. McGlothin, 556 So.2d 324 (Miss. 1990). An Indiana case generally addressed this issue as to Catholic teachers wearing their robes during an emergency employment by the City of Vincennes during the depression. In State ex rel Johnson v. Boyd, 28 N.E.2d 256 (Ind. 1940), the Court held that public funds could be used to pay the Catholic teachers’ salaries because it did not constitute sectarian teaching. 4. Free Exercise Rights of Students. There are many issues relating to students’ rights of free exercise, including religious speech and use of school premises. Religious speech issues are discussed in the case of Chalifoux v. New Caney Independent School Dist., 876 F.Supp 659 (S.D. Tex. 1997), where the Court held that a student’s free exercise rights of religion and free speech outweighed the school’s interest in reference to the wearing of a rosary. Many issues relating to student’s use of premises for free exercise issues are controlled by the Equal Access Act, 20 U.S.C. §4071-74, which provides as follows: § 4071. Denial of equal access prohibited (a) Restriction of limited open forum on basis of religious, political, philosophical, or other speech content prohibited It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. (b) "Limited open forum" defined A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time. (c) Fair opportunity criteria Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that– (1) the meeting is voluntary and student-initiated; http://www.k-glaw.com Just Business or Tortious Interference? Page 12 of 21 (2) there is no sponsorship of the meeting by the school, the government, or its agents or employees; (3) employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity; (4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and (5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups. (d) Construction of subchapter with respect to certain rights Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof– (1) to influence the form or content of any prayer or other religious activity; (2) to require any person to participate in prayer or other religious activity; (3) to expend public funds beyond the incidental cost of providing the space the student-initiated meetings; (4) to compel any school agent or employee to attend a school meeting if the content of the speech at the meeting is contrary to the beliefs of the agent or employee; (5) to sanction meetings that are otherwise unlawful; (6) to limit the rights of groups of students which are not of a specified numerical size; or (7) to abridge the constitutional rights of any person. (e) Federal financial assistance to schools unaffected Notwithstanding the availability of any other remedy under the Constitution or the laws of the United States, nothing in this subchapter shall be construed to authorize the United States to deny or withhold Federal financial assistance to any school. (f) Authority of schools with respect to order, discipline, well-being, http://www.k-glaw.com Just Business or Tortious Interference? and attendance concerns Nothing in this subchapter shall be construed to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to Page 13 of 21 protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary. § 4072. Definitions As used in this subchapter– (1) The term "secondary school" means a public school which provides secondary education as determined by State law. (2) The term "sponsorship" includes the act of promoting, leading, or participating in a meeting. The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting. (3) The term "meeting" includes those activities of student groups which are permitted under a school’s limited open forum and are not directly related to the school curriculum (4) The term "noninstructional time" means time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends. § 4073. Severability If any provision of this subchapter or the application thereof to any person or circumstances is judicially determined to be invalid, the provisions of the remainder of the subchapter and the application to other persons or circumstances shall not be affected thereby. § 4074. Construction. The provisions of this subchapter shall supersede all other provisions of Federal law that are inconsistent with the provisions of this subchapter. The leading case, upholding the constitutionality of the Equal Access Act is Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990). The primary holding of the Mergens case is that if a public secondary school permits one "noncurriculum related student group" to meet on http://www.k-glaw.com Just Business or Tortious Interference? Page 14 of 21 the school premises, the Act’s provisions require that the school may not deny other clubs, on the basis of the content of their speech, equal right to meet on school premises during "noninstructional time". Mergens, 496 U.S. at 236. Other cases construing the Act have focused on definitions used by the Supreme Court and the Act: a. In Pope v. East Brunswick Board of Education, 12 F.3d 1244 (3d Cir. 1993), the Court held that a Kiwanis Key Club was a "noncurriculum related student group" for purpose of the Act, and ruled in favor of a student who had sued her school for denying the Bible Club equal access to school facilities. b. In Ceniceros v. Board of Trustees of San Diego Unified School District, 66 F.3d 1535 (9th Cir. 1995), the Court construed the definition of "noninstructional time", and held that a student religious group was entitled to the same access to classrooms as other student groups during the lunch period. c. In Hsu v. Roslyn Union Free School Dist. No. 3, 85 F.3d 839 (2d Cir. 1996), the Court found that the provisions of the Act allowed a bible club to require that three of its office holders be "professed Christians", even though that requirement violated the school’s nondiscrimination policy (which prohibited any school group from discriminating against persons on the basis of religion). These cases are discussed in the Indiana Department of Education Legal Section Quarterly Report, located @ A recent Third Circuit case discusses the First Amendment rights of elementary school students in regard to religion. In C.H. v. State of New Jersey Dept. of Education, 195 F.3d 167 (3rd Cir. 1999), the Court ruled in favor of the school on First Amendment freedom of expression and Establishment Clause issues. The case involved a student who drew a picture depicting Jesus (which was removed from the wall outside the classroom by a school board member). The teacher also refused to allow the student to read a bible story to the class, although other students were allowed to bring non-religious books to read to the class. The Court found that the teacher had a legitimate concern regarding the ability of her first grade students to comprehend that the school was not promoting a religious message if the bible story was read. The leading case on student distribution of religious materials in the Seventh Circuit is Hedges v. Wauconda Comm. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993). In Hedges, the Seventh Circuit upheld the school’s policy that required all literature, including that of a religious nature, to be distributed from a table during specified times only. The policy had other restrictions on distribution of materials, requiring notification to the principal, but the Court upheld the policy so long as the restrictions were reasonable and were neutral toward religion. While Hedges involved junior high students, the case of Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), upheld a similar policy as to elementary school students. See, also, Harless v. Dar, 937 F.Supp. 1339 (S.D. Ind. 1996), which involved, again, the upholding of a school’s policy regarding the distribution of written materials on school grounds. Generally, the Courts will uphold greater restrictions applicable to elementary school students because of the greater concerns for order, discipline and learning. 5. Other Establishment/Free Exercise Issues. Two recent Fifth Circuit decisions address Establishment Clause issues. In Freiler v. Tangipahoa Parrish Board of Education, 185 F.3d 337 (5th Cir. 1999), the Court found that a disclaimer the school board required teachers to read before the teaching of evolution in elementary and secondary school classes violated the Establishment Clause. The http://www.k-glaw.com Just Business or Tortious Interference? Page 15 of 21 Board’s argument to the contrary, the Court found that the primary effect of the disclaimer was to maintain belief in the Biblical version of creation. In Doe v. Beaumont Indep. School Dist ., 173 F.3d 274 (5th Cir. 1999), rehearing en banc granted, June 21, 1999, new decision at 2001 U.S. App. Lexis 1153, volunteer counselors were recruited from clergy members. There has been recent activity regarding the displaying of the Ten Commandments. I.C. 4-20-5-21 was added by P.L. 22-2000, allowing the posting of the Ten Commandments on State property. In Indiana Civil Liberties Union, Inc. et al v. O’Bannon, 110 F.Supp. 2d 842 (S.D. Ind. 2000), the District Court used the Lemon test to enjoin the State of Indiana from erecting a monument which would include the Ten Commandments. The Court concluded the purpose was religious and not secular. Id., at 852. On December 13, 2000, the Seventh Circuit issued its decision in Books v. City of Elkhart, 235 F. 3d 292 (7th Cir. 2000). In reversing Judge Sharp, the Court of Appeals held that the City’s display of the Ten Commandments near the entrance to the municipal building violated the Establishment Clause. There is fresh legislative action in this area. Senate Bill 2 and House Bill 1180 would both authorize the display of the Ten Commandments on public property so long as the display includes other historical documents, including the U.S. Constitution or Declaration of Independence. Apparently, this is similar to I.C. 4-20.5-21, except that it is not limited to state property, as is the previously-enacted statute. House Bill 1180 passed the House by a vote of 93 to 7 on February 7, 2001. It appears likely that some version of this bill will pass. Two other recent Supreme Court cases address Establishment Clause issues. It Mitchell v. Helms, 530 U.S. ___, 147 L.Ed. 2d 660, 120 S.Ct. ____ (2000), the Supreme Court held that, Chapter 2 of the Education Consolidation and Improvement Act of 1981 (20 U.S.C. §7301-7373) under which educational materials were loaned to private schools, did not violate the Establishment Clause and, in Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. ___, 146 L.Ed. 2d 193, 120 S. Ct. ___ (2000), the Court held that a public university was able to charge students a mandatory fee to fund extracurricular student speech, where there was viewpoint neutrality in allocation of funding to student organizations participating in the speech. CIVIL TORT LIABILITY Generally, the legal standard of care is the same for schools as it is for other governmental entities, nongovernmental entities, and individual persons. As stated by the Indiana Supreme Court: "a governmental unit is bound by the same duty of care as a non-governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions), that it should be treated as one as well." Benton v. City of Oakland City, 721 N.E. 2d 224, at 230 (Ind. 1999). The general nature of the duty is that of "ordinary and reasonable care". With respect to schools, the primary areas where the duty arises are premises liability, and supervision of students. An occupier of premises owes a duty of care to persons coming on the premises. This duty arises out of the general proposition that the occupier or person who otherwise controls property is in the best position to prevent injury to persons coming upon it. City of Bloomington v. Kuruzovitch, 517 N.E. 2d 408 (Ind. App. 1987). http://www.k-glaw.com Just Business or Tortious Interference? Page 16 of 21 School authorities have a duty to exercise ordinary and reasonable care and supervision for the safety of children under their control. Miller v. Greisel, 308 N.E.2d 701 (Ind. 1974). A. Legal Standards. Indiana courts have held that there are three elements that must be proved by an injured person to establish negligence on the part of a defendant. These elements are: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff proximately caused by the breach. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). A school’s duty to exercise reasonable care with regard to its students was discussed in the case of Ashcraft v. Northeast Sullivan County School Corp., 706 N.E.2d 1101 (Ind. Ct. App. 1999), which upheld the trial court’s grant of a summary judgment in favor of the school. In Ashcraft, a student participating in a window-washing fundraiser was hit by a runaway car, which apparently slipped out of gear after the driver parked it to go shopping. The school’s cheerleading coach was present at the fundraiser. Although the Court granted summary judgment in favor of the school on a proximate cause issue, the Court did indicate that it would apply the factors articulated by the Indiana Supreme Court in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), in determining the existence of a school’s duty. Ashcraft, 706 N.E.2d at 1103-4. The school argued that there was no breach of duty under the Webb v. Jarvis analysis. The Court discussed the issue as follows: The School also argues that in Webb v. Jarvis, the Indiana Supreme Court has identified the following three factors that a court balances when determining whether to impose a duty at common law: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns (575 N.E.2d at 995), and that when this balancing is undertaken in Ashcraft’s case, it leads to the conclusion that, as a matter of law, the School and its employee Justice did not owe Ashcraft any duty of care. *** It would be a radical departure from relevant supreme court precedent to engage in a Webb v. Jarvis analysis and hold that the School owed Ashcraft no duty of care at all. As our court’s Judge Rucker has noted, [e]ssentially, where relevant case authority dictates the existence of a duty then we may not, by examining the relationship between the parties, foreseeability of harm, and public policy http://www.k-glaw.com Just Business or Tortious Interference? concerns, reach a contrary conclusion and determine that no duty exists. In short, balancing the Webb competing factors is reserved for instances where the existence of a duty has not been previously determined or articulated. Ellis v. Luxbury Hotels, Inc., 666 N.E.2d 1262, 1268, (Ind.Ct.App.1996) (Rucker, J., concurring). We find that the School, and its representative Justice, owed a duty to take reasonable measures for the safety of the students participating in the fundraiser. However, the http://www.k-glaw.com Page 17 of 21 Just Business or Tortious Interference? resolution of the duty issues does not end our inquiry. Page 18 of 21 Ashcraft , at 1103-4. The significance of this holding is that schools will have duties under tort law in the following instances: (1) in instances where the existence of a duty has been previously determined or articulated; and (2) in any circumstance where a court may determine that the Webb v. Jarvis’s three factors are present. The Webb v. Jarvis analysis was also applied in Roe v. North Adams Comm. School Corp., 647 N.E.2d 655 (Ind.Ct.App. 1995), where the Court held that the school had no duty to provide security to prevent the surreptitious taping, by concealed camcorder, in the women’s locker room, of the female plaintiffs, Red Cross lifeguard students. A recent case, Joyce Hertz v. School City of East Chicago, No. 45A04-0004-CV-162 (Ind.App. February 6, 2001), discussed a school’s potential liability for snow and ice on pavement. In reversing the trial court’s summary judgment for the school, the Court of Appeals held that an issue of fact existed of whether a significant time period elapsed between the accumulation of snow and ice and the plaintiff’s fall on the parking lot and sidewalk of the school. The Court was considering the application of statutory immunity for a "temporary" condition resulting from weather pursuant to I.C. §34-13-3-3 (3). B. Areas of negligent liability in public schools. The duty of schools to exercise reasonable care and supervision for the safety of students has been found to be the basis for liability in many factual situations: 1. Failure to provide a working seatbelt. Elkhart Comm. Schools v. Yoder, 696 N.E.2d 409 (Ind. Ct. App. 1998). A jury trial was held on this issue, resulting in a verdict in favor of the plaintiff student’s parents. Because of procedural issues, the actual instruction given to the jury was not analyzed by the Court, but the Court found that there was sufficient evidence to support a finding of negligence on this issue. 2. Duty to protect from disease exposure. Drake by Drake v. Mitchell Comm. Schools, 628 N.E.2d 1231 (Ind. Ct.App. 1994) aff’d in part, 649 N.E.2d 1027 (Ind. 1995). The Court held the school had a duty to warn or protect students against exposure to disease. http://www.k-glaw.com Just Business or Tortious Interference? 3. Duty to protect--dangerous object. Duneland School Corp. v. Bailey, 701 N.E.2d 878 (Ind.Ct.App. 1998). The Court recognized a duty to properly supervise a student’s use of a table saw. Scott County School Dist v. Asher, 312 N.E.2d 131 (Ind. Ct. App. 1974), aff’d 324 N.E.2d 496 (Ind. 1974). Duty of reasonable care owed to students using bench saw in shop class. Page 19 of 21 4. Waiting for buses. School City of Gary v. Claudio, 413 N.E.2d 628 (Ind. Ct. App. 1980). Duty to supervise students while waiting for and boarding buses. In other situations, courts have found that no duty existed on the part of the school to the injured student: 1. Student injured at home. Mangold v. Department of Natural Resources, 720 N.E. 2d 424 (Ind.App. 1999). No duty owed to student injured at home when he detonated a shot gun shell after hearing a lecture by a DNR officer at school. 2. Playground injuries. Norman v. Turkey Run Community School Corp., 411 N.E.2d 614 (Ind. 1980). No duty to warn two children running toward each other on playground where even perfect attention to the incident might not have prevented it. 3. Unsupervised after school injury. Bush v. Smith, 289 N.E.2d 800 (Ind. Ct. App. 1972). No duty on the part of school or gym teacher to supervise use of high-jumping equipment, where student was injured on school premises for unsupervised exercise during non-school hours by fellow student. The Courts have also addressed the issues of injuries to third parties by students, under the school’s duty to supervise students. Courts may recognize such a duty under the Webb v. Jarvis analysis, as it applies to particular factual situations: 1. Negligent entrustment theory. Brewster v. Rankins, 600 N.E.2d 154 (Ind.Ct.App. 1992). School found not liable on negligent entrustment theory when fourth grade student hit another child with a golf club while practicing his swing. The fourth grader had taken the club home from an after-school class conducted by his teacher. 2. Student driver. Wickey v. Sparks, 642 N.E.2d 262 (Ind.Ct.App. 1994). The Court upheld a summary judgment motion as to a plaintiff injured by a student driving to her vocational cosmetology class. The Court analyzed the plaintiff’s allegations under the Webb v. Jarvis three-factor components, and concluded the school did not owe the plaintiffs a common-law duty. In analyzing a school’s liability for the acts of its teachers and other employees, under the doctrine of respondeat superior, the determination of whether an employee is acting within the scope of his employment is dependent on the circumstances of each case, and is generally a question of fact for the jury. Gibbs v. Miller, 283 N.E.2d 592 (Ind. Ct.App. 1972). http://www.k-glaw.com Just Business or Tortious Interference? Page 20 of 21 A school may also be liable for acts of third parties. The case of Vernon v. Kroger Co ., 712 N.E. 2d 976 (Ind. 1999), could create a duty on the part of a school to take reasonable precautions to prevent foreseeable criminal acts against students. In that case, the Indiana Supreme Court indicated that the occurrence of prior similar incidents would be a significant, although not dispositive factor, in determining whether such a duty exists. C. Intentional Torts. Like any Indiana employer, a school may be held liable for damages for an employee’s intentional tort only if the employee was acting not only within the scope of his employment, but in furtherance of it. That is, only if the tort was intended, however misguidedly, to promote the employer’s business interests. In Tippecanoe Beverages, Inc. v. S.A. El Aguila Brewing Company, 833 F.2d 633 (7th Cir. 1987), the Court of Appeals held that, under Indiana law, upheld a jury verdict in favor of the plaintiff for an intentional tort of conversion based on the acts of the defendant’s agent. In Stropes v. Heritage House Children’s Center, 547 N.E.2d 244 (Ind. 1989), the Indiana Supreme Court extended the common carrier exception for an employer’s liability for intentional torts of employees, to apply to a nursing home. The facts of the case involved a sexual assault of a mentally incompetent 14 year-old by a nursing home employee. In finding that the common carrier exception to liability applied to a nursing home, the Court stated as follows: Under respondeat superior, employer liability is coextensive with the powers and advantages engendered by the employment relationship. Because liability is predicated conceptually on the employer’s ability to command or control his employee’s acts, an employer can be held responsible only for those acts of his employee which are committed within the scope of their employment relationship. Under the common carrier exception to respondeat superior, however, the range of employee activities deemed to be under the employer’s domination is irrelevant. Liability is predicated on the passenger’s surrender and the carrier’s assumption of the responsibility for the passenger’s safety, the ability to control his environment, and his personal autonomy in terms of protecting himself from harm; therefore, the employer can be held responsible for any violation by its employee of the carrier’s non-delegable duty to protect the passenger, regardless of whether the act is within the scope of employment. Stropes , 547 N.E.2d at 253. In cases involving a sexual assault on a student by a teacher on a student, the Court might well apply this same type of analysis. D. Other Matters of Interest. Other recent developments, and not clearly within the scope of this article, may be of interest: http://www.k-glaw.com Just Business or Tortious Interference? Page 21 of 21 (1) In Linke v. Northwestern School Corp., 734 N.E.2d 252 (Ind.App. 2000), the Indiana Court of Appeals found a school’s drug testing policy (directed to participants in extracurricular activities and drivers) unconstitutional. (2) A bill pending in the Indiana Legislature, H.B. 1146, would increase the liability of governmental entities for tort claims from $300,000 to $500,000 for one person and from $5,000,000 to $8,000,000 for all injuries stemming from one incident. (3) Recent cases address the Indiana High School Athletic Association and the "transfer for athletic reasons" ineligibility. Indiana High School Athletic Assn. v. Martin, 731 N.E.2d 1(Ind. App. 2000), trans. pend. and Indiana High School Athletic Assn. v. Martin, 200 WL 1880559 (Dec. 29, 2000). (4) Supreme Court ruling in Davis v. Monroe County Board of Education, 119 S.Ct. 1661 (1999). Students may bring private damages actions under Title IX against school districts for sexual harassment by other students, when the school district has acted with deliberate indifference to known acts of harassment in its programs or activities. Home | http://www.k-glaw.com