Student Athlete’s Right to Kneel during National Anthem Protected by the First Amendment

January 2018
Number 2

A federal district court in California has granted a preliminary injunction blocking a school district’s policy requiring student athletes to stand during the national anthem at school sporting events.

In V.A. v. San Pasqual Valley Unified School District, the Southern District of California court ruled that kneeling in silent protest is a form of student symbolic speech protected under the First Amendment.

Background

During the first game of the 2017 varsity football season, which was played at the plaintiff student’s school, high school senior V.A. performed a silent protest by kneeling during the national anthem. After doing the same at the team’s second game, which was played at an Arizona high school, students from the opposing team’s school approached students from plaintiff’s school, made racial slurs, threatened to force plaintiff to stand, and sprayed water on the students, striking a nearby cheerleader. After receiving feedback from the community, parents and staff that included concerns about safety, the superintendent issued a memorandum to all of the district’s coaches with a new directive requiring student athletes to stand during the national anthem. The memorandum added that kneeling, sitting or any similar form of political protest could result in removal from the team and from subsequent athletic teams for the remainder of the school year.

The court granted a preliminary injunction in the student’s favor. In doing so, it relied on the U.S. Supreme Court’s preeminent student speech opinion,Tinker v. Des Moines Independent Community School District, which established the principle that students do not shed their free speech rights in school and may exercise such rights absent a material and substantial disruption to the educational environment. Like the students inTinker, who wore black armbands in silent protest of the Vietnam War, the student plaintiff’s silent kneeling did not rise to a level of material interference with or substantial disruption of school activities. The court explained that any threat to student safety was diminished by the district’s agreement to no longer play the Arizona school in sports.

Takeaways

While the preliminary injunction was issued by a federal district court and is thus not binding on all California school districts, the court’s reasoned analysis appears well supported by legal authority and reinforces the idea that, when it comes to student free speech, a school has less deference to restrict speech that expresses a student’s personal opinion. Notably, the V.A. ruling is the first of its kind with regard to K-12 students since the recent spate of silent protests that players have made during professional and college sporting events.

For more information about this ruling or on addressing student free speech rights in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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Schools May Discipline Students for “Liking” Offensive, Targeted Social Media Posts

December 2017
Number 87

December 2017
Number 87

A federal district court has ruled that schools may discipline students for “liking” offensive, targeted social media posts.

In Shen v. Albany Unified School District, a Northern California district court concluded that a school could discipline students for liking or for writing approving comments on racist and offensive social media posts targeted at other students, even if the posts were created off campus. However, the court also ruled that the school’s additional decisions to discipline other students who had simply followed the offensive social media account or had approved of more generally offensive posts not directed at any particular student were violations of those students’ free speech rights.

The Shen case is significant because it is one of the first cases coming out of California addressing a school’s ability to discipline students for off-campus expression on social media.

School’s Right to Regulate Off-Campus Speech

Not all off-campus speech is beyond the reach of school officials. In order to discipline (or otherwise regulate) a student for off-campus speech, the speech must meet the requirements of the off-campus speech test. That is, the speech must: (1) be tied closely enough (have some nexus) to the school, or it must be reasonably foreseeable that the off-campus speech would reach the school; and (2) substantially disrupt or materially interfere with the school environment or activities,or it must be reasonable to forecast that it will cause a substantial disruption of or material interference with the school environment or activities, or collide with the rights of students to be left alone in the school environment.

Each of these factors requires careful analysis, and school administrators should exercise caution and investigate thoroughly before proceeding with discipline. While every case is fact-specific, the district court’s analysis in Shen v. Albany Unified School District provides a framework for approaching these issues.

In Shen, a student was expelled after posting racist and derogatory content on an Instagram account, including images of nooses drawn around the necks of an African-American student and an African-American basketball coach. Even though the posts were made off campus, the court determined that because they targeted individual and identifiable students, were readily visible to other students, depicted school activities and responded to events that took place at school, the posts therefore had a close relationship to the school. Based on these factors, the court determined that administrators could reasonably expect the posts would reach the school because some of the targeted students would be affected by the content.

The offensive content was also found to have immediately caused a “substantial disruption.” After learning of the posts, students gathered in a hallway during the school day, intensely talking, crying, and yelling about the posts. Mental health counselors had to be called in to calm students down, classroom instruction was halted to discuss the posts, and several students struggled to attend school or perform schoolwork as a result of the posts. Based on these factors, the court determined that the district’s expulsion of the student who created the posts was appropriate.

Turning its analysis to the students who were suspended for liking and commenting in approval of the posts targeting other students, the court found that their behavior “meaningfully contributed” to the campus disruptions, justifying the discipline and regulation of speech. Online posts that denigrate a student’s race, ethnicity or physical appearance or that threaten violence-and any likes and comments expressly supporting those posts-interfere with a student’s right to be left alone, the court ruled.

Notably, the court reached a different conclusion regarding likes and comments favoring generally offensive, racist, or hateful speech that was not directed toward a specific student. While unsettling, this type of speech is protected under the First Amendment and does not constitute harassment or bullying, the court said. Further, disciplining the student who only followed the social media account, but did not like or comment in support of the offensive content, violated their free speech rights because the act of following is “completely devoid of any affirmative speech.”

Takeaways

While the Shen’s summary judgment order is issued by a federal district court and thus not controlling in California state courts or in other district courts throughout the state, it is one of the first legal opinions analyzing student speech in the context of social media, including reactions to social media posts and following social media accounts. It will, therefore, likely have persuasive effect, if and when relied upon by federal and state courts in California.

For more information regarding the discipline of students for off-campus, online speech, or about student free speech rights in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

When is Paid Administrative Leave an Adverse Employment Action?

December 2017
Number 84

According to a recent court decision, “it depends.”

On November 15, 2017, a California appellate court held inWhitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an adverse employment action.

Background

Mary Anna Whitehall was a social worker for San Bernardino County. Whitehall was involved in a dependency case in which she was directed to withhold evidence and to submit altered evidence to the court. Whitehall believed these actions could endanger children and, through her own legal counsel, filed a motion to inform the court of the suspected fraud.

Six days after the motion was filed, Whitehall was placed on paid administrative leave for a two-month period. According to the county, Whitehall was placed on leave to facilitate an investigation of her alleged violation of the county’s rules against disclosing confidential information to unauthorized individuals. The county concluded that Whitehall violated the policy and acted to terminate her, but Whitehall resigned in lieu of termination.

Whitehall then sued the county, alleging it retaliated against her for her whistleblower activities. The trial court ruled in Whitehall’s favor and the appellate court upheld the trial court’s ruling. The Court of Appeal held that placing Whitehall on administrative leave and terminating her employment were acts of retaliation by the county. While administrative leave is not always an adverse action, the court said that it is an adverse action when it “materially affects the terms, conditions, or privileges of employment.”

The court acknowledged that “[r]etaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” Citing a previous appellate decision, the court noted that a lateral transfer to a position with equal pay could be an adverse action if it was “reasonably likely to impair [an employee’s] job performance” or likelihood of success. The court said that Whitehall’s administrative leave was an adverse action because she was placed on leave in the context of the county’s disciplinary investigation rather than as a reward or accommodation or at her request, and her leave coincided with the termination of the original social worker involved in the case. The court also noted that the county’s own evidence confirmed its intention to terminate Whitehall for disclosing the county’s attempt to manipulate evidence to the juvenile court.

Takeaways

Paid administrative leave is an important tool that allows an employer to temporarily remove an employee from the workplace in certain situations. Paid administrative leave should not be used as a punitive measure and, if used properly, will not constitute an adverse employment action. Employers must thoroughly evaluate the reasons for the administrative leave and assess the decision on a case-by-case basis.

This is especially important when paid leave is being considered for an employee who may have engaged in a protected activity (e.g., whistleblowing, union activism, filing of a grievance or claim) from which a retaliation claim could be alleged. Some questions employers should consider before using administrative leave in these cases include:

  • What articulable problems are likely to arise if the employee is not removed from the workplace?
  • Are there other ways to address the situation without placing the employee on leave?
  • Is placement on administrative leave a routine course of conduct in this situation?
  • What steps can the employer take to minimize the time spent on administrative leave?
  • Can the administrative leave be construed as a response to any protected activities conducted by the employee?
  • What benefits and/or opportunities will the employee lose out on while on leave, and can the employer mitigate the lost benefits or opportunities?

For more information on the impact of the Whitehall case or on the use of administrative leave in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Darren C. Kameya

Partner

Mayrn J. Oyoung

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

United State Supreme Court to Again Review Mandatory Union Fees

October 2017
Number 67

On September 28, 2017, the United States Supreme Court agreed to review the Illinois case Janus v. AFSCME, Council 31, which challenges the constitutionality of “fair share” or “agency” fees collected by unions. A decision in the case is anticipated by June 2018.

Janus challenges the constitutionality of fair share fees (a.k.a. agency fees) under Illinois law. Specifically, the Illinois Public Relations Act allows unions to collect fair share fees from non-union member employees on whose behalf the union also negotiates to cover the costs of negotiating and administering the contract. This law is similar to California law, which allows unions to collect a fair share fee from bargaining unit members who choose not to join the union.

In Janus, the plaintiff, a state-employed child support specialist, challenged the mandatory payment of fair share fees, claiming such arrangements are unconstitutional under the First Amendment.Janus claims that the fees support a mandatory advocacy group whose speech is designed to influence governmental policies in excess of employees’ actual support for the advocacy group and its agenda. The plaintiff seeks to overturn a 40-year old ruling inAbood v. Detroit in which the Court ruled that it was constitutional to require all employees to pay to support the cost of bargaining, so long as the fees paid by the workers are not used to cover the cost of political or ideological activities.

If the Supreme Court overturns the Abood ruling and finds that fair share fees or agency fees violate constitutional rights to free speech and association, employees would no longer be required to pay anything if they decline membership in the union. Proponents of the Abood ruling argue that without such fees, non-members reap the benefits of the union by using their services without bearing the cost.

The Janus case is not the first time that the Abood ruling has been challenged.Friedrichs v. California Teachers Association, a case involving California teachers, was on the brink of overturning the Abood ruling. The death of Justice Antonin Scalia in February 2015 left the Supreme Court without a ninth vote, and the Court split 4-4 when it decided the Friedrichs case. The appointment of Neil Gorsuch to the Supreme Court may provide the fifth vote needed to overturn theAbood case and to find mandatory fair share fees to be unconstitutional.

In addition to the Janus case under review by the Supreme Court, a case currently pending in a federal district court in California challenges fair share fees. That case,Yohn et al. v. California Teachers Association et al. (C.D. Cal., Case No. 8:17-cv-00202-JLS-DFM), in which Lozano Smith represents several involved school districts, claims that these fees violate the First Amendment’s individual speech rights. There was an unsuccessful attempt to fast-track Yohn to the Supreme Court to be considered with theJanus case. Thus, while the Yohn case is still pending, it is possible that the ruling in Janus will be dispositive of the major issues.

The Supreme Court’s agreement to review the Janus case does not impose any new obligations on public employers with respect to mandatory fair share fees. Rather, existing collective bargaining agreement provisions on fair share fees will remain in effect until a decision is issued by the Court.

Lozano Smith will be watching this case closely and will provide updates as they become available. For more information on the Janus case or on union dues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea A. Grantham

Partner

Jayme A. Duque

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Holds Disclosure Is the Rule, Not the Exception, in Public Record Requests

October 2017
Number 59

Automated license plate reader (ALPR) scan data is not subject to the “records of investigation” exemption under the California Public Records Act (CPRA), the California Supreme Court has ruled. The Court, however, did not foreclose the ability to withhold such information if it would invade an individual’s privacy.

In American Civil Liberties Union of Southern California v. Superior Court of Los Angeles County (Aug. 31, 2017, No S227106) ___ Cal.5th ____, the Court considered whether a request for ALPR data was exempt from disclosure.

Background

The Los Angeles Police Department (LAPD) and the Los Angeles Sheriff’s Department (LASD) both utilize ALPR technology to locate vehicles linked to crimes under investigation. High-speed computer-controlled cameras that are mounted onto fixed structures or patrol cars automatically capture images of license plates for each vehicle that passes through the optical range. Each number captured is then checked against a list of license plate numbers that are associated with crimes or criminal investigations-the “hot” list. If a match occurs, the system alerts either officers or a central dispatch unit.

The American Civil Liberties Union (ACLU) sought to investigate the legal and policy implications of the government’s use of ALPR data. The ACLU submitted a CPRA request to the LAPD and LASD seeking all ALPR data collected over a one-week period, consisting of at minimum the license plate number, date, time and location information of each license plate recorded. The ACLU did not seek disclosure of any license plate numbers that matched the hot list. Both the LAPD and LASD declined to produce the requested scan data, citing the CPRA’s exemption for law enforcement records of investigation.

Both the trial court and the Court of Appeal concluded that the requested data was exempt from disclosure under the records of investigation exemption. But in a unanimous decision, the California Supreme Court reversed the appellate court’s decision, noting that its obligation to interpret the CPRA in a manner that favors disclosure required that all exemptions be construed narrowly. The Court reasoned that in order to qualify as an “investigation,” an inquiry by law enforcement must be targeted at suspected violations of the law and not collected as part of “bulk data collection.” Here, the ALPR scans were not each “conducted as part of a targeted inquiry” into a specific crime, and therefore could not be considered records of investigation.

The Court recognized the public interest in not disclosing the data. As the Court explained, such disclosure threatened individuals’ privacy, since “data showing where a person was at a certain time could reveal where that person lives, works, or frequently visits.” However, the Court also recognized that disclosure of the ALPR data could be used to determine if the information was being properly obtained and used. Accordingly, the Court returned the case to the trial court with instructions to consider whether the balance of public interests would be altered if the ALPR data could be redacted or anonymized by “replacing the actual license plate numbers with fictional numbers.” The Court cautioned that in analyzing the catchall exemption of the CPRA, a court “cannot allow ‘vague safety concerns’ to foreclose the public’s right of access.”

Takeaways

This opinion serves as an important reminder that courts are likely to err on the side of disclosure under the CPRA and will likely continue to restrict the general use of disclosure exemptions.

For more information on this case or the California Public Records Act in general, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
Written by:

Jenell Van Bindsbergen

Partner & Co-Chair

Alyse Pacheco

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School District Need Not Accommodate Coach’s Request to Publicly Pray at Football Games

October 2017
Number 58

A Washington school district was not required to allow a high school football coach to pray on the 50-yard line at the end of each game, the Ninth Circuit Court of Appeals ruled inKennedy v. Bremerton School District (9th Cir. 2017, No. 16-35801) ___F.3d___ <http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf&gt;. The court found that the District did not violate the coach’s First Amendment rights by placing him on administrative leave for refusing to cease his demonstrative prayer after football games.

Background

Joseph Kennedy coached football in the Bremerton School District from 2008 to 2015. During his first coaching season, Kennedy began praying at the end of each football game. After a few games, players started to join Kennedy. Eventually, Kennedy began giving short motivational speeches with religious content following each game.

In September 2015, the District learned of Kennedy’s prayers and speeches and asked him to limit his speeches to non-religious topics to avoid offending any players. The superintendent told Kennedy he could still engage in private, non-demonstrative prayer.

Following the District’s request, Kennedy began giving non-religious post-game speeches and praying only after everyone had left the stadium. After several weeks of this practice, Kennedy asked the District to allow him to resume praying on the field after each game. The District reiterated that Kennedy could pray in private before or after the games, but that he could not engage in demonstrative religious activity observable by students and the public attending the games. Kennedy refused to comply with the District’s instruction and engaged in demonstrative prayer during the next two games. The District placed Kennedy on paid administrative leave. The football players did not continue to pray on their own after the football games.

Several months later, Kennedy sued the District, asking the trial court to require the District to reinstate him as a football coach and allow him to pray on the 50-yard line immediately after each football game. The Ninth Circuit upheld the trial court’s ruling that the District did not did not have to reinstate Kennedy or permit him to engage in demonstrative public prayer immediately after the games.

Takeaways

Public employees retain their First Amendment free speech rights when speaking as private citizens. But “when public employees make statements pursuant to their official duties,” the United States Supreme Court held in its landmark 2006 ruling in Garcetti v. Ceballos, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In Kennedy, the Ninth Circuit found that Kennedy spoke as a public employee-and not as a private citizen-because he prayed “immediately after games while in view of parents and students.” The court found that this activity fell within the scope of Kennedy’s official duties because in his role as a sports coach, Kennedy served as a mentor and role model for student athletes.

The Ninth Circuit’s ruling highlights that a public school may limit demonstrative religious speech of an employee who serves as a student mentor and role model. The court suggested that this same rule applies to teachers, and this analysis also likely applies to counselors and other employees who serve as role models to students. Nevertheless, the court indicated that a public school employee has the right to pray or otherwise practice religion while in private, even if on school grounds.

Kennedy does not address whether a district may limit religious speech of other employees (janitors or cafeteria workers, for example) who have more limited and discrete interactions with students. Additionally, while one
judge wrote separately to explain his view that the District could limit Kennedy’s public prayers to avoid the appearance of endorsing a particular religion, Kennedy does not address whether a district violates the
Establishment Clause by permitting or failing to limit an employee’s demonstrative religious speech.

If you have any questions about the Kennedy decision or employees’ religious speech rights in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner & Co-Chair

Alyssa R. Bivins

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Eliminates Registration Requirement for Model Aircraft

September 2017
Number 55

The Federal Aviation Administration (FAA) may no longer require the registration of model aircraft, following the D.C. Circuit’s decision in Huerta v. Taylor.

Model aircraft, commonly known as drones, are unmanned aircraft that weigh 55 pounds or less and are used exclusively for recreational purposes. Small unmanned aircraft used for any commercial purposes, or unmanned aircraft heavier than 55 pounds, are not impacted.

The Huerta case challenged a rule promulgated by the FAA in 2015 known as the Registration Rule that required model aircraft to be registered with the FAA. Challenged on the basis of the 2012 FAA Modernization and Reform Act, which specifically prohibits the FAA from promulgating any rule or regulation regarding a model aircraft, the court barred the application of the Registration Rule to model aircraft.

The court did not consider the application of the FAA Modernization and Reform Act to an FAA circular that restricted model aircraft flight in the Washington, D.C. area, because the challenge fell outside of the 60-day window to challenge the rule and the plaintiff did not have reasonable grounds for the delay. FAA Advisory Circular 91-57A continues to prohibit the operation of model aircraft in Prohibited Areas, Special Flight Rule Areas or the Washington National Capital Region Flight Restricted Zone without specific authorization.

Previously, the FAA took the position that state and local government regulation of unmanned aircraft must be consistent with the federal statutory and regulatory framework. Federal registration was the exclusive means for registering unmanned aircraft, and no state or local government could impose an additional registration requirement without first obtaining FAA approval. The court’s ruling did not address whether state and local governments may now be permitted to require registration of model aircraft pursuant to their police power.

Regardless, state and local governments may still rely on their traditional police power in areas such as land use, zoning, privacy, trespass and law enforcement operations to regulate uses of unmanned aircraft, including model aircraft. FAA examples of permissible state and local regulations include prohibitions against use for voyeurism, against use for hunting or fishing, and against attaching firearms or similar weapons.

For more information on the Huerta decision or on drone regulation in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

William P. Cureley III

Partner & Co-Chair

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.