- Student Religious Club
- Drug Free Zones
- Board Members Immune
- Gay Sex Lecture
- Attempt to Ban Halloween
- Ceremonial Daggers
- Drug Testing Student Athletes
- District Liable for Fatal Athletic Injury
Student Religious Club Denied Equal Access
A high school cannot deny a student religious club the opportunity to meet on campus during the lunch hour, if other student groups are allowed to meet during that time ruled the United States Court of Appeals for the Ninth Circuit in Ceniceros v. Board of Trustees of the San Diego Unified School District.
Background: A senior at University City High School asked if she could form a student religious club that would meet in an empty classroom during the school lunch period. The District approved the club's formation, but denied the request to use a classroom during the lunch period. Several other student clubs met during the lunch period.
The District argued that the lunch hour did not fall within the Equal Access Act's definition of noninstructional time, and that it did not have to provide an empty classroom for the religious club to use. The Ninth circuit rejected this, and ruled that the school could not discriminate against any student who wanted to conduct a meeting within the "limited open forum."
A limited forum exists when a school grants an opportunity for noncurriculum-related student groups to meet on school premises during noninstructional time. The lunch period falls within the Act's definition of noninstructional time.
The court emphasized that the religious group's right to meet "was defined by the extent to which other groups were permitted to meet." "The Act is about equal access. If a school district wanted to prohibit religious groups from meeting during lunch, the school need only make its prohibition neutral, so that all noncurriculum-related groups are barred from meeting at lunch," said the court.
Comment: This is the first decision by the Ninth Circuit to decide whether the Equal Access Act applies to student religious clubs that meet during lunchtime. The court's decision is in accord with the religious guidelines issued by the Clinton administration. The guidelines state that lunch periods, as well as student meetings held before and after the school day are to be considered noninstructional time under the Equal Access Act. Ceniceros v. Bd. of Trustees of the San Diego Unified School Dist. (9th Cir. 1995)
Narcotics Sale Violates Drug-Free School Zones
A narcotics sale which took place on a private residential driveway was a drug transaction within a drug-free school zone, the Court of Appeal ruled in People v. Jimenez.
Police arrested two men after they witnessed a sale of rock cocaine take place on a private residential driveway. Since an elementary school was near where the transaction occurred, the seller was charged with selling a controlled substance within 1,000 feet of a school in violation of Health and Safety Code section 11353.6 (b). The seller was convicted and his sentence was increased because of the drug-free schools statute which provides for an additional term of 3, 4, or 5 years upon conviction of drug trafficking in a public area near a school. Public area is defined as:
Within 1000 feet of a public or private [school] means any public area or business establishment where minors are legally permitted to conduct business which is located within 1000 feet of any public or private [school].
The conviction for selling cocaine and the sentence enhancement were affirmed. People v. Jimenez (1995) ___Cal.App.4th ___
Individual School Board Members Immune from Liability
School board members cannot be individually sued for their decision to replace a district superintendent. The California Supreme Court ruled in Caldwell v. Montoya that board members are personally immune from liability for discrimination even where it is alleged that the dismissal was motivated by bias.
Background: The school board of the Paramount Unified School District voted 3-2 in August 1991, to not renew the superintendent's contract. The superintendent filed a lawsuit and charged various board members with age and race discrimination. The suit alleged that one board member's decision was motivated by the fact that the superintendent was not Hispanic, and the other two were motivated by his age, which was 66 at the time of the action.
The Supreme Court concluded that a vote by members of a school board on whether to renew a superintendent's contract qualifies for immunity under the Tort Claims Act (Gov. Code sec. 810).
The Court said that the Board's decision "on whether to replace the school district's highest appointed official" should "not be subject to judicial interference by means of lawsuits seeking to hold individual board members accountable for their motives.
It is within the Board's discretion to decide the length of a superintendent's contract, as well as the other terms and conditions of a superintendent's employment, reasoned the Court. " There is a vital public interest in securing free and independent judgment of school trustees in dealing with personnel problems." Under the Tort Claims Act board members are immune from individual law suits for claims of age and racial discrimination even when it is alleged that there was a violation of the Fair Employment and Housing Act (FEHA). Caldwell v. Montoya (1995) ___ Cal.4th ____
Teachers May Lose Credentials Over Sex Lecture
Two San Francisco middle school teachers may lose their teaching credentials for inviting guest speakers to a sixth grade class in 1992, where they gave an explicit description of gay sex.
The speakers were invited to speak to the students about hate crimes and violence against homosexuals. However, the discussion went beyond that to talking about sexual practices.
The Commission on Teacher Credentialing investigated a complaint that was filed by a parent and found that there was probable cause to dismiss. A representative from the Commission declined to publicly state what the grounds for dismissal were and said it was confidential information. The teachers can appeal the decision and are entitled to a hearing before an administrative law judge.
A parental rights advocate said, "this matter indeed represents the first bullets fired in what we can see as a growing campaign to eradicate such grotesque violation of parents' rights in public schools." The parents' rights advocates want to preview classroom material that may be considered offensive or inappropriate A representative of San Francisco Unified said that since the incident guidelines have been issued that make clear what topics guest speakers may discuss with students.
Halloween Banned in Los Altos
Los Altos schools has tried to cancel all Halloween costumes, parties and art in the belief that Halloween is a satanic religious rite similar to Christmas, Easter or Ramadan. Said school board President Phil Faillace, "What happens when teachers who those students trust and love are seen joking and laughing when another child is dressed as a Halloween witch? We take the First Amendment separations seriously, where schools can't be seen to endorse beliefs about religious issues."
Many parents are outraged at what seems to them to be an unfair suppression of a harmless secular observance which has been a traditional staple of American schools for many years. One parent, Mark Euchner, is quoted as saying, "My kids are really upset. I can understand concern about a religious aspect, but they just wanted to dress up as cartoon characters."
Religious issues have been a serious preoccupation of the Los Altos trustees, who even discussed the religious significance of the paper dragons used in Chinese New Year's celebrations.
In an editorial, the San Francisco Chronicle ridiculed the school district and went on to say, "Halloween may have had a religious connotation 1,000 year ago when the church established All Saints' Day--Halloween--so that people could continue a festival created before they had become Christians. But clearly, Halloween is now a most secular annual holiday."
A draft of the school board's policy said teachers may not "assign or recruit" students to sing any song that is not "neutral among all religious beliefs (including polytheistic, monotheistic, nontheistic or atheistic religious beliefs)."
This policy might have gone into effect, but at a large meeting on the evening of the 16th of October more than 800 outraged Los Altos parents and students, many in costume, protested the school board's decision to ban Halloween celebrations from the school day. More than 40 parents spoke berating the school trustees. "We can't allow a small group with a narrow cultrual agenda to dictate how we bahave in this community," said Irene Zimbeck, a district parent. In the end the board voted the measure down.
Ceremonial Daggers Allowed in School
Students who are members of the Sikh religion may wear ceremonial knives ("kirpans") while attending classes in the Livingston Elementary School District. The Ninth Circuit upheld a lower court's injunction allowing the Sikh pupils to wear the "kirpans" despite Education Code provisions banning knives at school. The knives must be hidden under clothing and sewn into sheaths. The order remains in effect until the trial scheduled for October 1996, takes place. A lengthy dissent to the order was written by Judge Charles Wiggins who wrote that "the plan of accommodation, which allows 7 ,8 and 10 year-old children to carry 7-inch knives to school, compromises school safety." Cheema v. Thompson (9th Cir. 1995) 36 F.3d 1102; Order and dissent filed 8/1/95.
Drug Testing of Student Athletes Permitted
School districts can require student athletes to submit to random drug testing, the United States Supreme Court ruled in Vernonia School District v. Acton.
In a 6-3 decision, the Court ruled that the District's drug testing policy did not violate the Fourth Amendment prohibition against unreasonable searches and seizures.
Justice Scalia writing for the majority acknowledged the "special needs" that exist within the public-school context. He said that the school district's policy met constitutional standards because the District had demonstrated a legitimate interest in curbing drug abuse among student athletes. Acknowledging that "for many purposes school authorities act in loco parentis" when students are at school, the Court said that "Fourth Amendment rights, are different in public schools than elsewhere" the school district's interest in deterring drug use outweighed students' rights under the Fourth Amendment.
In addition, students cannot expect to have the same expectation of privacy at school as do members of the general population. Student athletes have even less privacy rights. The Court said:
School sports are not for the bashful. They require "suiting up" before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford ... there is an element of communal undress inherent in athletic participation.
Under the school district's policy, students wishing to play sports and their parents must sign a consent form. All athletes were tested at the beginning of the school year. During the athletic season names of team members were randomly selected for drug testing. The samples were sent to an independent laboratory where they were tested for amphetamines, cocaine, and marijuana. The test results were confidential and were not kept for more than one year by the school district.
The Court said its decision only applied to these facts."We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts."
The Supreme Court overturned the United States Court of Appeals for the Ninth Circuit decision which held that Vernonia's policy violated the Fourth Amendment.
Comment: This decision, although limited to student athletes, could foreseeably be extended to drug testing of students participating in other extracurricular activities. Some commentators have said that the Court's opinion could ultimately be interpreted to allow drug testing of all students attending school, if a district could prove that there was a pervasive drug problem. Since by the Court's reasoning schools "for many purposes" act as substitute parents for all students, not only athletes. However, any attempt by school districts to expand the scope of Vernonia beyond drug testing of student athletes will be the result of subsequent lawsuits. Vernonia School District 47j v. Acton (1995) ___U.S.___
District Is Liable for Fatal Athletic Injury
Is a district liable when a high school gymnast severely injuries himself while practicing in the gym when school is not in session? Yes, a recent Court of Appeal decision declared in Acosta v. Los Angeles Unified School District. This ruling greatly expands the liability of school districts for student athletic sports injuries.
Background: Omar Acosta was a member of the Hamilton High School gymnastics team. One night during the off-season for gymnastics, Omar was working out in the Hamilton gym under the supervision of the assistant gymnastics coach. He was practicing a new maneuver on the high bar during which he missed the bar, fell, and landed on his neck. He became a quadriplegic as a result of the accident, and subsequently died from the injuries. (A wrongful death suit has also been filed against the District.)
After a trial, the jury ruled in favor of the school district. The jury found that although the coach was negligent in his supervision, Omar was engaged in a "hazardous recreational activity," and the District was not liable for his injuries. This decision was appealed.
The District maintained that it was immune from liability because Omar engaged in a hazardous recreational activity, and the injury did not occur during a school sponsored gymnastics team practice. The District argued that he was participating in a community recreation program which was open to everyone. The Court of Appeal ruled "as a matter of law" the District was liable for the injuries. The court found that the immunity under Government Code sec.831.7 for engaging in a hazardous recreational activity did not include " school sponsored extracurricular athletic activities under the supervision of school personnel."
The court said this was a school sponsored activity because Omar had been a member of the gymnastics team for the past two years and intended to compete in the coming season. He had discussed the maneuvers he would work on during the off season with the head gymnastics coach, which included the front catch. On the night of the accident he was practicing in the high school gym on equipment provided by the school under the supervision of a gym coach. This is the first time a court has found a school district does not have immunity under Government Code sec.831.7 when a person is engaged in a hazardous recreational activity on school property. The court said [internal quotation marks omitted]:
We need not decide the outer limits of immunity created by section 831.7 because it is clear from the language of the statute and its legislative history it was not intended to create a new immunity from liability for the negligent supervision of students engaged in school sponsored and supervised activities.
For immunity to apply under Government Code sec.831.7, the activity must be both hazardous and recreational. In this case, since the activity was found to be school sponsored the district was liable for the injury. This decision puts school districts on notice that they may be liable for negligent supervision of students who participate in other extracurricular sports, such as, football, basketball, soccer and wrestling. Acosta v. Los Angeles U.S.D. (1995) ___Cal.App.4th___
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