McElhaney v. Williams (August 25, 2023).

In a late August decision , the Sixth Circuit reversed a District Court’s decision, finding in favor of a parent’s First Amendment rights, and sending a message to schools and their athletics staff regarding how they ban parents from property and events.

A school district in Tennessee found itself in federal court after it suspended a parent from attending a week’s worth of softball games. The parent, whose child played on the high school softball team, sent two lengthy texts to the coach discussing his frustration after the coach had benched his child. Subsequently, the school banned the parent from attending any softball games the following week after finding that the text messages were inappropriate and violated team policy. The parent sued the district, arguing that the district retaliated against him for exercising his constitutionally protected right to free speech.

Reviewing the District Court’s opinion, which sided with the school, the Sixth Circuit stated that the First Amendment has long protected citizen’s right to criticize public officials. The Sixth Circuit elaborated that that protection extends to parents, meaning that “schools cannot regulate the content of the parents’ speech about their child to a school employee who interacts with the child.”

The school district argued that schools have an interest in avoiding disruption, and the Sixth Circuit agreed; however, it stated that the school’s interest does not apply “to run-of-the the mill adult speech targeting school officials.” Additionally, the district argued that it had an informational sheet that it had sent out, which specifically stated that parents and coaches were not allowed to discuss playing time. However, the Sixth Circuit found that an information sheet does not override a parent’s constitutional rights. In the end, the Sixth Circuit found the speech was critical of a coach’s actions, but the speech was not threatening, harassing or disruptive, and, therefore, was protected by the First Amendment.

What does this mean for your district?

The Sixth Circuit was clear in the conclusion of its opinion:
“in this situation, it is clearly established at a low level of generality that a school official may not retaliate against the parent for the content of his speech.”

Districts should be aware that even if a school or team policy bars parents and coaches from discussing playing time, parents maintain a constitutionally protected right to address their concerns provided they do so in a non-harassing, non-threatening and non-disruptive manner. Districts should educate their staff on parents’ free speech rights, especially when it comes to parents’ right to air grievances regarding their student-athletes.

The Clery Act, formally known as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, is a federal law that aims to promote campus safety by requiring colleges and universities that receive federal funding to disclose information about crime on and around their campuses. The law is named after Jeanne Clery, a college student who was sexually assaulted and murdered in her dormitory in 1986. Here’s why the Clery Act matters to Ohio Technical Centers (OTCs):

1. Campus Safety and Transparency: The Clery Act promotes campus safety and transparency by requiring OTCs to disclose accurate and comprehensive information about crime on and around their campuses. This information helps students, staff, and prospective students make informed decisions about their safety and well-being.

2. Student and Staff Awareness: By providing information about crime statistics, safety policies, and emergency procedures, the Clery Act ensures that students and staff are aware of potential risks and know how to respond to emergencies. This awareness can contribute to a safer and more secure learning and working environment.

3. Prevention and Preparedness: OTCs must develop and implement safety policies, crime prevention programs, and emergency response plans. This encourages OTCs to proactively address safety concerns, prevent criminal activity, and be prepared to respond effectively to emergencies.

4. Timely Warnings and Emergency Notifications: The Clery Act requires OTCs to issue timely warnings to the campus community about certain ongoing threats and to provide emergency notifications during significant incidents. This rapid communication helps individuals take appropriate actions to stay safe.

5. Accountability and Compliance: Compliance with the Clery Act is a condition for receiving federal funding. OTCs that fail to meet Clery Act requirements may face financial penalties and potential loss of federal funds. This accountability ensures that OTCs take the law seriously and prioritize campus safety.

6. Public Perception and Reputation: Non-compliance with the Clery Act can negatively impact an institution’s reputation and public image. Demonstrating a commitment to Clery Act compliance can help OTCs build trust with students, parents, and the community.

7. Student and Staff Well-Being: Ultimately, the Clery Act aims to create a safer and more secure environment for students, staff, and visitors at OTCs. By adhering to Clery Act requirements, OTCs contribute to the overall well-being and quality of life for their campus community members.

In summary, the Clery Act is essential for Ohio Technical Centers and other educational institutions to ensure a safe and transparent learning environment. Compliance with the Clery Act helps OTCs fulfill their responsibility to provide accurate information, promote campus safety, and respond effectively to security concerns and emergencies.

During the 2021-2022 school year, the Office for Civil Rights (OCR) opened an investigation into Forsyth County Schools following a complaint that the district discriminated against students on the basis of sex, race, color, and national origin.

Forsyth County Schools had received a complaint from a parent group over books the group believed contained sexually explicit material. Soon after, the school began receiving complaints from other parents regarding books that discussed LGBTQ+ issues. Parents suggested the district shelve those books separately, placing tags to identify them, or create a system for parents to prohibit their students from checking out specific books, specifically those that focus on LGBTQ+ issues. The District Media Committee rejected both suggestions, stating that implementing those restrictions may increase isolation and bullying, and could result in students avoiding the library altogether. Furthermore, the district believed that implementing a system where students were prohibited from checking out certain books would force the media specialists to become “gatekeepers” of the books.

While the committee rejected the suggestions regarding books with LGBTQ+ content, the Superintendent did authorize staff to review and pull books that included explicit sexual content. Ultimately, the staff permanently removed eight books, temporarily removed two books, and restricted four books to high school libraries. Despite the permanent removal of eight books, many parents continued to call for the removal of even more, some of which focused on gender identity or sexual orientation.

At a board meeting following the removal, multiple students pointed out that the district was banning books largely written by women of color, or those that focused on LGBTQ+ issues. For example, one of the banned books “All Boys Aren’t Blue” by George M. Johnson focuses on Johnson’s childhood and adolescence as a gay Black man. The students argued that banning books, specifically books that are written by or have characters who are members of a minority community, was reflective of the District’s lack of commitment to diversity and highlighting minority voices. The students further told the Board that removal of books such as “All Boys Aren’t Blue” or “Juliet Takes a Breath,” which focuses on a Puerto Rican American who comes out to her family, ostracizes students who are part of marginalized communities that felt represented and understood by those books, making the school environment harsher for those students.

Following the February board meeting, the district formed a summer review committee where 34 readers would review the books up for permanent removal. The committee was required to look at the book’s content and manner of presentation, whether the book was age appropriate, sophistication level, whether it met the students’ instructional, social, emotional, and personal needs, whether it exhibited a high degree of potential user appeal and interest, and whether it provided a global perspective and promoted diversity by including materials about and by authors or illustrators of all cultures. Ultimately, the committee decided to return seven of the eight books to the shelves. Since the reinstatement of seven of the books, there have been no more formal complaints filed regarding book removal.

In a letter addressed to the Superintendent following the investigation, OCR stated that the district’s removal of titles with Black and LGBTQ+ characters may have created a “hostile environment” for students, potentially violating their civil rights. Specifically, OCR’s concern stemmed from the fact that the district received notice that the screening process created a hostile environment for students, but the District’s “responsive steps related to the book screening process were not designed to, and were insufficient to, ameliorate any resultant racially and sexually hostile environment.” While OCR acknowledged that the District strives to provide resources for all students within the community, it noted that the board meetings “conveyed the impression that books were being screened to exclude diverse authors and characters, including people who are LGBTQI+ and authors who are not white.” OCR also noted that district witnesses reported that despite students verbalizing their fears, the district did not take steps to address the impact of the book removals with students. Thus, OCR concluded that the District’s lack of response could have created a hostile environment that the district failed to ameliorate.

The District ultimately signed a Resolution Agreement intended to resolve the issues identified by OCR. The resolution agreement requires the district to administer a school climate survey to address prevalence of harassment and the student’s perception of harassment. Additionally, the district must post a statement that provides students with information including why certain books were removed, an acknowledgement that the environment surrounding book removal may impact students, and instructions on how to file a complaint about discrimination.

The District’s willingness to agree to the Resolution Agreement was applauded by the Assistant Secretary for Civil Rights who thanked the district for assessing and responding to the needs of students who felt as if they were subjected to a hostile environment, and for agreeing to “take appropriate action regarding acts of harassment that create a hostile environment based on sex, race, color or national origin.”

What does this mean for your district?

Requests for and debates over book bans have resurfaced in recent years. OCR made it clear in this decision that the impact of district actions is just as important as the intent behind them, so while Forsyth County may have had good intentions, it was the impact of the acts that created the potentially hostile environment. Districts should consider in advance of the potential impact that could occur when creating book committees and policies regarding removal of books.

On May 15, 2023, the United States Department of Education issued a “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools” document. Coaches are referenced several times throughout the guidance, and it is likely that the guidance was issued in response to the decision of the Supreme Court of the United States in Kennedy v. Bremerton School District, which centered around a football coach engaging in private prayer at the end of each football game on the field.

The guidance opens with the reminder that when teachers, coaches, and other public school officials speak in their official capacities, they may not engage in prayer or promote religious views. However, the guidance notes that not everything a public school teacher, coach, or other official says in the workplace constitutes governmental speech. The guidance specifically states that where teachers, coaches, or other employees engage in personal speech, a school district may not prohibit them from doing so because the expression is religious in nature or because other observers, including students, might misperceive that the school is endorsing the expression. Absent some evidence that the teacher, coach, or other school official is pressuring or encouraging students to engage in religious expression, a school district has limited authority to regulate such speech.

The guidance goes on to address such topics as prayer groups, religious expression during instructional time, moments of silence, student assemblies, teaching about religion, religious expression in school assignments or homework, excusal for religious activities, and baccalaureate ceremonies. A copy of the guidance can be found here.

What this means for schools:
School districts may (and must, to avoid violating the Establishment Clause) restrict religious expression that suggests endorsement of religion or where the expression by staff is intended to compel or encourage student participation. However, staff remain free to engage in private religious expression such as private prayer, even when visible to others and even when it occurs at district sponsored activities. Of course, the devil is in the details, as they say. Confer with counsel as needed to interpret employee actions in light of the new guidance.