Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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The Washington Court of Appeals recently affirmed a Washington State Executive Ethics Board (“Board”) finding that instructor Teresa Knudsen of Spokane Community College (“SCC”) violated state law by lobbying for legislation using SCC resources.

On February 25, 2005, Knudsen used her SCC computer to send an e-mail to several SCC listservs, encouraging recipients to support legislation which would provide tenure-like protections for part-time college teachers. Knudsen herself was a part-time college instructor. The Board found e-mail violated RCW 42.52.160(1), WAC 292-110-010 and RCW 42.17.190.

On appeal, the Washington Court of Appeals explained that RCW 42.52.160 prohibits state employees from using any property under the employee’s official control or in her official custody “for the private benefit or gain of the officer, employee, or another.” WAC 292-110-010 further specifies that use of state property for “assisting efforts to lobby the state legislature” is prohibited, and RCW 42.17.190(3) prohibits agencies from using public funds to lobby. Knudsen’s activities violated each of these provisions, as she used a state computer and state-provided internet access to lobby for legislation which would provide tenure-like protection to part-time instructors, such as herself.

The court rejected Knudsen’s argument that the Board violated her First Amendment right to free speech. Knudsen’s speech arose in a public forum, and a public employee’s speech in a public forum may be regulated so long as the regulation is reasonable and viewpoint-neutral. The court found Board’s application of the anti-lobbying provisions was both reasonable and view-point neutral.
 

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The explosion of blogging and social networking sites, such as MySpace, Facebook and Twitter, has spurred much debate and angst over the extent to which school officials may impose discipline for potentially harmful conduct by students in cyberspace. In the attached article entitled Student Speech in the Social Networking Era, Jessie Harris and Samantha Noonan explore how courts have adjusted their traditional approaches to student speech to fit today’s social media. The article will improve your ability to respond to controversial student expression on campus and on the internet.

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As discussed in an earlier report on this blog, the United States Supreme Court undertook review of a Ninth Circuit Court of Appeals decision in Christian Legal Society v. Martinez. On June 28, 2010, the Supreme Court issued its decision, affirming the Ninth Circuit’s ruling that public institution University of California at Hastings Law School lawfully denied recognition to the student group Christian Legal Society (“CLS”).

UC Hastings allows organizations to become Registered Student Organizations (“RSO”), which results in official school recognition, access to school funds and facilities, and the ability to communicate through law school communication channels. However, to obtain and maintain RSO status, these organizations must, under an extension of the school’s Nondiscrimination Policy, “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [his or her] status or beliefs.” The U.S. Supreme Court would later characterize this rule as the “all-comers condition.”

In 2004, certain students sought RSO status for a UC Hastings branch of CLS, to be a school affiliate of the national organization. Based upon the bylaws of the national organization, the UC Hastings branch of CLS planned to exclude from its membership anyone who participates in “unrepentant homosexual conduct.”

CLS applied for recognition as a UC Hastings RSO, and UC Hastings rejected the application, declaring that CLS failed to comply with UC Hastings’ Nondiscrimination Policy because it barred students based on religion and sexual orientation. CLS requested an exemption from the Nondiscrimination Policy, but UC Hastings refused. While CLS would not be granted the privileges allowed to RSO’s, UC Hastings emphasized that CLS could continue to exist as a non-RSO student organization.

In October 2004, CLS filed suit against UC Hastings officers and administrators under 42 U.S.C. § 1983, alleging UC Hastings officials had violated CLS’ rights to free speech, association, and freedom of religion as established by the First Amendment and the Fourteenth Amendment. The U.S. District Court for the Northern District of California granted summary judgment in favor of UC Hastings, dismissing CLS’ claims. On appeal, the Ninth Circuit Court of Appeals affirmed in favor of UC Hastings. CLS then appealed to the U.S. Supreme Court.

In its 5-4 decision, written by Justice Ginsburg, the U.S. Supreme Court first struggled with whether to proceed under the lower level of scrutiny applied to regulations of speech in a limited public forum, or whether the heightened strict scrutiny approach often applied to restrictions of expressive association should apply. Finding that in this case the free speech and expressive association arose in “exactly the same context,” the Court found them to be “intertwined rights,” which should be evaluated under a single standard. Finding that the case fit “comfortably” within the limited public forum line of jurisprudence, the Court proceeded under the limited public forum paradigm.

The Court’s analysis thus hinged upon the rule that “the State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, . . . nor may it discriminate against speech on the basis of . . . viewpoint.” Considering first whether UC Hastings’ “all-comers” rule was reasonable, the Court found UC Hastings had several reasonable bases for its rule. Such justifications included: (1) the rule ensured access for all students; (2) the rule allowed UC Hastings to enforce its Nondiscrimination Policy without digging into each proposed RSO’s specific motivations for exclusivity in violation of the rule; and (3) the rule encourages tolerance, cooperation, and learning. The Court found UC Hastings had a reasonable basis for enforcement of its “all-comers” rule for RSO’s.

Next, the Court considered whether UC Hastings had, by virtue of its “all-comers” rule, discriminated on the basis of viewpoint. Emphasizing that UC Hastings still allowed organizations not approved as RSO’s to continue to operate on campus, the Court found UC Hastings had not engaged in viewpoint discrimination. In fact, the Court declared: “An all-comers condition on access. . . is textbook viewpoint neutral.” UC Hastings was merely “dangling the carrot of the subsidy, not wielding the stick of prohibition.”

The Supreme Court affirmed the Ninth Circuit’s ruling in favor of UC Hastings, but remanded to the Ninth Circuit for further consideration of CLS’ claim that UC Hastings’ “all-comers” policy was mere pretext for viewpoint discrimination.
 

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In a controversial decision, a Texas federal district court recently rejected a religious institution’s statutory and constitutional claims arising from the denial of certification for a Master of Science degree. The Institute for Creation Research Graduate School (“ICRGS”) applied to the Texas Higher Education Coordinating Board for a certificate of authority enabling ICRGS to offer a Master of Science degree with a major in Science Education from “a Biblical scientific creationist point of view.” The Board rejected the application after an assigned panel determined, in its view, that “much of the course content was outside the realm of science and lacked potential to help students understand the nature of science and the history and nature of the natural world.”

ICRGS filed suit against members of the Board under 42 U.S.C. § 1983, alleging they had infringed upon ICRGS’ rights to free speech, free exercise, equal protection, and due process under the First and Fourteenth Amendments. ICRGS also filed claims against the Board members and the Board itself for violation of the Texas Constitution, the Texas Religious Freedom Restoration Act, and Chapter 106 of the Texas Civil Practices and Remedies Code.

On the parties’ cross-motions for summary judgment, the U.S. District Court for the Western District of Texas dismissed ICRGS’ claims. In a lengthy, exhaustive analysis, which can only be partially summarized here, the court recognized the State’s legitimate interest in preventing “deception of the public resulting from the conferring and use of the fraudulent or substandard college and university degrees,” and protecting “legitimate institutions” from the “watering-down of their degrees.” The Board’s policies served those legitimate interests in this case.

The court rejected ICRGS claim of “invidious viewpoint discrimination,” finding no evidence of discriminatory animus, and further finding that the Board’s rejection of ICRGS’ application was based on the Board’s determination that ICRGS’ curriculum was too “narrow [in] viewpoint,” and designed to indoctrinate a particular “religious-based mode of thought. . . ‘rather than preparing them to instruct students in modern science.’” Ultimately, the court concluded, it was ICRGS’ failure to satisfy Board Standard 12 with its curriculum which led to the rejection of its application.
 

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On June 7, 2010, the Federal District Court for the Southern District of Ohio dismissed the First Amendment claims of former Ohio State University librarian Scott Savage.

Savage, who describes himself as a “conservative Quaker,” served as Head of Reference and Library Instruction at OSU’s Mansfield, Ohio campus from 2004-2007. In 2006, Savage served on a committee assembled to select a single book which would be required reading for all incoming freshman. In a heated e-mail debate on the issue, Savage suggested The Marketing of Evil by David Kupelian. According to the court, that particular text suggests that homosexuality is “aberrant human behavior that has gained general acceptance under the guise of political correctness.”

Savage’s recommendation set off an explosive reaction among campus faculty. Homosexual faculty filed internal complaints with OSU, alleging that Savage’s recommendation constituted harassment and gave rise to a hostile work environment. In return, Savage filed his own complaint with OSU, claiming he suffered harm as a result of other faculty members’ “false charge of sexual harassment.” OSU determined neither claim had merit, and refused to take action against Savage despite the uproar.

Savage took two consecutive leaves of absence before ultimately resigning from OSU. Savage then filed a series of lawsuits in state and federal court against OSU and OSU faculty. As to his claims against OSU, Savage claimed that OSU impinged upon his First Amendment right of free speech, resulting in his constructive discharge. OSU filed a motion for summary judgment arguing that it had not violated Savage’s First Amendment rights.

In its June 7, 2010 decision, the court applied the U.S. Supreme Court’s test for free speech by public employees, developed in Garcetti v. Ceballos, 547 U.S. 410 (2006). The court analyzed whether Savage: (1) spoke on a matter of public concern and (2) spoke as a citizen. The court found that “the chapter of the book concerning homosexual rights certainly raises an issue of public concern,” but that Savage’s speech came “pursuant to [his] job duties,” rather than as a citizen. As a result, OSU maintained the right to regulate that speech, and Savage’s First Amendment rights were not violated.
 

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At a time when cries of racism are at their peak in Arizona in the wake of recent controversial immigration legislation, the Ninth Circuit Court of Appeals handed down an opinion on May 20, 2010 which effectively protects an Arizona professor’s racially-charged remarks as free speech.

In Rodriguez v. Maricopa County Community College District, the Ninth Circuit considered several “racially-charged” e-mails which Professor Walter Kehowski sent out to all employees on a Maricopa Community College District distribution list. Kehowski’s e-mails included such statements as: “It’s time to acknowledge and celebrate the superiority of Western Civilization,” “Our survival depends upon discrimination,” and “The only immigration reform imperative is preservation of White majority.” Kehowski also sent an e-mail espousing the belief that Native Americans actually committed genocide against the “original white-skinned inhabitants of North America.”

The president of the college responded by voicing his disagreement and displeasure with Kehowski’s statements. However, the college did not do anything to stop Kehowski’s statements. A group of college employees filed suit, claiming that Kehowski’s statements created a racially hostile work environment, giving rise to liability on the part of the Maricopa Community College District for its failure to take reasonable steps to stop the alleged harassment. After the district court denied the defendants’ motion for summary judgment in part, the defendants petitioned for and were granted interlocutory appeal to the Ninth Circuit, largely based on their argument for qualified immunity for the college president and chancellor.

The Ninth Circuit issued a remarkable, strongly-worded opinion, which reads largely as a discourse on the value of the First Amendment. While recognizing that an employer made aware of unlawful harassment must take appropriate steps to investigate and curtail the harassment, the Ninth Circuit viewed Kehowski’s statements as pure academic speech, and the college’s decision as to how to handle the professor’s speech “demands substantial deference” from the court.

The Ninth Circuit emphasized that the government “may not silence speech because the ideas it promotes are thought to be offensive.” According to the Ninth Circuit, that is particularly true in the context of educational institutions: “Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched.” In fact, the Ninth Circuit declared, it is precisely that freedom of speech in an academic environment which proved pivotal to the success of abolitionist ideas during the Civil War. “Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.”

The Ninth Circuit reversed the district court’s denial of qualified immunity to the college president and chancellor, and remanded the case to the district court with instructions that the district court should reconsider its prior rulings to ensure they are consistent with the Ninth Circuit’s opinion.
 

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On March 22, 2010, the United States Supreme Court declined the opportunity to review last year’s Ninth Circuit Court of Appeals’ decision affirming dismissal of a student’s First Amendment claim against Dr. Carol Whitehead, former Superintendent of Everett School District No. 2 in Everett, Washington.

The lawsuit revolved around Kathryn Nurre, a senior at Henry M. Jackson High School and a member of the school’s band. Consistent with school tradition, the band director invited seniors such as Nurre to select a piece to perform at the 2006 graduation. Nurre chose Franz Biebl’s “Ave Maria.” While the school band had previously performed the piece, concerns arose after a choir performance of “Up Above My Head” at the school’s 2005 graduation caused rumblings among parents for inclusion of religious terms.

The school district declined the student’s choice of “Ave Maria.” The students played a different piece at graduation, then filed suit against district superintendent Dr. Whitehead in her individual and official capacity. After the federal district court dismissed claims against Whitehead in both her individual and official capacity, Nurre appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit recognized that the purely musical form of “Ave Maria,” even without lyrics, constituted “speech” under the First Amendment. Further, the Ninth Circuit assumed for purposes of argument that the school had created a “limited public forum.” However, ultimately the Ninth Circuit held that the school district’s decision to keep musical pieces at graduation “entirely secular” was reasonable and, therefore, did not violate the First Amendment.

Nurre then appealed the Ninth Circuit’s decision to the United States Supreme Court. The United States Supreme Court declined the opportunity to review the Ninth Circuit’s decision, effectively terminating Nurre’s lawsuit. In a thorough dissenting opinion, Justice Samuel Alito suggested the district’s actions constituted viewpoint discrimination and warned of a parade of horribles which might follow: “A reasonable reading of the Ninth Circuit’s decision is that it authorizes school administrators to ban any controversial student expression at any high school event attended by parents and others. . . . A decision with such potentially broad and troubling implications merits our review.”
 

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The Ninth Circuit Court of Appeals held on January 4, 2010, that a charter school’s alleged conduct did not satisfy the “state actor” requirement for purposes of a 42 U.S.C. §1983 claim in Caviness v. Horizon Cmty. Learning Ctr., 590 F.3d 806 (9th Cir. 2010).

The lawsuit revolved around plaintiff Michael Caviness, who had served as a teacher and track coach at Horizon Community Learning Center in Phoenix, Arizona for six years. A female student enamored of Caviness, and angered by his relationship with his adult girlfriend, filed a grievance falsely alleging Caviness maintained an inappropriate relationship with the student. Horizon placed Caviness on paid administrative leave pending investigation, and during that leave prohibited Caviness from attending track meets. While the investigation largely cleared Caviness, the school deemed Caviness’s telephone calls with the student inappropriate and, as a result, chose not to renew Caviness’s contract. When Caviness sought new employment at another school, Horizon refused to provide affirmative references.

Caviness filed suit under 42 U.S.C. Section 1983, alleging Horizon, acting under color of state law, deprived him of a protected interest in finding employment by making false statements to potential employers, and further deprived him of First Amendment rights by prohibiting his attendance at track meets during the paid administrative leave. Section 1983 claims require a state actor. For private defendants, that requirement may be met where there is such a close nexus between the state and the challenged action that the private entity’s action must be treated as an act of the state itself.

The trial court dismissed Caviness’s claims for failure to satisfy the state actor requirement, and Caviness appealed. The Ninth Circuit Court of Appeals affirmed dismissal, holding Caviness failed to demonstrate sufficient nexus between the state and the alleged actions by Horizon. Despite the fact that Arizona law deems charter schools public schools, and despite the fact that several Arizona statutes regulated charter schools’ personnel policies, Horizon’s actions did not constitute state action under Section 1983.
 

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A prominent University of Alaska marine-conservation specialist appears to have lost a battle against changes in his working conditions that he had blamed on his institution's unwillingness to alienate the oil industry, which holds considerable sway in his state.

Richard Steiner, a professor of marine conservation at the university, had become a cause célèbre among some environmental groups after he accused the university of responding to his outspoken criticism of oil interests by denying him federal grant funds, subjecting him to harassment, and subsequently moving his office to punish him for filing a grievance about such matters in March.
In a harshly worded memorandum rejecting all of Mr. Steiner's claims, the university's general counsel, Roger Brunner, who had been designated by President Mark R. Hamilton to hear Mr. Steiner's final appeal, characterized the professor as having a history of unsuccessfully bringing complaints of violations of his academic freedom in efforts to gain an upper hand with his supervisors.

"In many regards, the current claims appear to be a continuation of Professor Steiner's attempt to free himself from supervision and to have the university create a different job for him which would be more to his liking," Mr. Brunner wrote in the memorandum, which noted that the grievance requested that the university establish a "permanent, autonomous faculty chair for environmental sustainability" on the professor's behalf.

In an interview on Tuesday, Mr. Steiner said Mr. Brunner's decision "looks like the end of the road" and he doubts he will choose to stay there given the circumstances he now finds himself in. "I have very few options here other than to leave the university, which I am likely to do very soon." [The Chronicle of Higher Education]

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A judge has thrown out a lawsuit filed by a former Regent University law student who was suspended after posting a picture on the Internet of school founder Pat Robertson making what appeared to be an obscene gesture.

U.S. District Judge Jerome B. Friedman of Norfolk rejected Adam Key’s claims that Regent and Robertson, the school’s chancellor and president, violated his free speech and due process rights.

Key, a Houston native, was suspended from Regent for one year in 2007 for violating the school’s code of conduct after posting the picture. The picture was a frame of a YouTube video in which Robertson was scratching his face.

Although Regent is a private university, Key said the school received some state and federal funds and therefore was subject to the free-speech and due process standards that apply to the government. Friedman disagreed, writing in his June 5 ruling that a school’s receipt of public funds alone does not make its decisions acts of the state.

Along with the constitutional claims, Key alleged that Robertson defamed him by saying Key had manipulated the photo, and that the school broke its contract with him by not living up to promises made in recruiting materials.

The judge rejected those arguments as well. He said that by presenting a single frame of a video out of context, Key did manipulate the image — and since Robertson’s statement was true, it could not be defamatory.

Friedman also said the “generic recruiting correspondence” received by Key did not amount to a binding contract. [Richmond Times-Dispatch]

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Western Washington University (“WWU”) suspended tenured theatre professor Perry Mills for two quarters without pay for improper behavior, including: use of foul language toward students and faculty both inside the classroom and beyond, brandishing a knife in class, threatening to kill people who offended him, using misogynistic names for female professors, and, on one occasion, telling a student undergoing cancer treatment that she “should have just died of cancer.”

After attempting informal methods to resolve the issue, WWU’s provost made a formal statement of charges against Mills for violation of the Faculty Code of Ethics. Following a closed hearing, a WWU hearing panel of five faculty members recommended suspension without pay for two quarters. The WWU Board of Trustees issued a final order implementing the recommendation.

As permitted by Washington’s Administrative Procedure Act (“APA”), Mills appealed his suspension to the Washington State Superior Court, which denied Mills’ appeal. Mills then sought direct review from the Washington Supreme Court, which in turn transferred the case to the Washington Court of Appeals.

Reviewing WWU’s suspension of Mills, the Washington Court of Appeals concluded that good cause existed for the suspension, and further that the suspension did not violate the terms of Mills’ employment contract. The Court of Appeals rejected Mills’ claim that WWU’s Code of Ethics was unconstitutionally vague, as well as Mills’ claim that the offending speech constituted protected speech under the First Amendment. However, the Court of Appeals did find that WWU’s use of a closed hearing, rather than a hearing open to the public, violated the APA’s open hearing provision. Accordingly, the Court of Appeals vacated the WWU’s Board of Trustees’ decision and remanded the cause to WWU for a new, open hearing.

A link to the case can be found here.