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.

New Law Requires Legal Consult Prior to Custodial Interrogation of Minor under Age 16

November 2017
Number 78

Beginning January 1, 2018, minors under the age of 16 must consult with legal counsel prior to a custodial interrogation and before waiving their Miranda rights.

Existing law requires a peace officer to advise minors of their rights by providing a Miranda warning. But if the minor or parent waives those rights, officers can interrogate the minor. Senate Bill (SB) 395, which adds section 625.6 to the Welfare and Institutions Code, will prohibit a law enforcement officer from conducting a custodial interrogation of or accepting a waiver of Miranda rights by a minor 15 or younger until the minor has had an opportunity to consult with legal counsel. This consultation must occur in person, by telephone or by video conference and may not be waived.

SB 395 requires a court to consider the impact of a peace officer’s failure to provide such legal consultation in determining the admissibility of statements the minor made during or after a custodial interrogation.

SB 395 provides limited exceptions to its consultation requirement. The new law does not require probation officers to comply with its requirements and also excludes questions related to obtaining information believed to be necessary to protect life or property from an imminent threat.

SB 395 creates new issues for police and other public agencies, including schools, when dealing with minors and illegal or inappropriate conduct. School districts that rely upon interviews of students by school district police department officers or contract school resource officers (SRO) in relation to student discipline proceedings may wish to review those practices for conformance with the new law, which covers potential criminal misconduct occurring on school campuses. In particular, school districts may wish to review how and when a law enforcement officer or an SRO may become involved with investigations of student misconduct.

Lozano Smith is currently working with our law enforcement, municipal, school district and community college district clients to address these and other issues related to the enactment of SB 395. If you have questions or need more information on how the new law impacts your agency, 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:

Jenell Van Bindsbergen

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.

New Laws Ease Residency and Coursework Requirements for Children of Active Duty Military Personnel

November 2017
Number 77

A pair of new laws intended to ease residency and coursework requirements for students in military families will go into effect on January 1, 2018. Senate Bill (SB) 455 expands on prior legislation to permit students whose parents are on active duty military orders to remotely enroll in school, while Assembly Bill (AB) 365 extends coursework exemptions for other groups of transient students to children of active duty members of the military.

SB 455: Updated Residency Rules for Students in Military Families

A prior bill, SB 1455, went into effect on January 1, 2017. SB 1455 allowed some transferring military families to remotely register their children in school prior to being physically located within the boundaries of their new school district. (Ed. Code, § 48204.3.) Under this existing law, a student complies with school district residency requirements if the student’s parent was transferred or is pending transfer to a military installation located within the boundaries of the school district while on active military duty pursuant to an official military order, so long as proof of residence is provided within 10 days of the documented arrival date.

A problem arose, however, in that the law does not cover families that intend to live and enroll in school outside of the school district in which the military installation in question is located. SB 455 addresses this problem by amending section 48204.3 to provide that children in military families meet the residency requirements for attendance in a school district if the student’s parent, while on active-duty orders, is transferred or is pending transfer to a military installation anywhere in the state. Now, military families on active duty orders will be permitted to remotely enroll in any school district where they will reside regardless of whether the military installation is within school district boundaries.

AB 365: Changes Coursework Requirements for Children of Active Military Personnel

Due to their frequent transfers between school districts, foster youth, homeless students, and former juvenile court school students often struggled to graduate on time due to local coursework requirements that exceed those mandated by state law. By enacting AB 365, state lawmakers extended a coursework exemption and other related provisions that already applied to students in these transient populations to children of active duty military personnel.

Under AB 365, Education Code sections 51225.1 and 51225.2 were amended to provide that foster youth, homeless students, children of active duty military personnel, and former juvenile court school students who transfer between schools any time after the completion of their second year of high school are exempt from all coursework and other requirements that exceed statewide coursework requirements.

The exemption does not apply if the student is reasonably able to complete the additional requirements in time to graduate by the end of his or her fourth year of high school. If a school district determines a student is reasonably able to complete the coursework required for graduation within five years, the district is required to inform the student of the option of remaining in high school for a fifth year, and of the effect that doing so may have on the student’s ability to get into college.

State law also requires school districts to accept satisfactory coursework these students completed at other schools, even if the student did not finish the course. School districts are required to give full or partial credit for the completed coursework and may not require a student to retake a course if the student has satisfactorily completed the entire course in a public school, a juvenile court school, or a nonpublic, nonsectarian school or agency. In addition, these students cannot be prevented from taking or retaking courses to meet the eligibility requirements for admission to either the California State University or University of California systems.

For more information on SB 455 and AB 365 or on enrollment and coursework requirements for students in military families 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:

Thomas A. Manniello

Partner

Klye A. Raney

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.

Legislative Update: New Timelines for Interdistrict Transfer Appeals at Certain County Offices of Education

October 2017
Number 66

Under existing law, school districts enjoy wide discretion in setting the terms for rejection and revocation of an interdistrict transfer under Education Code section 46600 et seq. Terms of transfer revocation are typically clearly specified in a transfer agreement between two school districts. Rejection and revocation of interdistrict transfers cannot be based on any discriminatory or other unlawful basis. Students denied an interdistrict transfer may appeal the denial to the county office of education.

Due to a recent increase in the number of interdistrict transfer appeals heard by the Los Angeles County Office of Education, the Legislature passed Senate Bill (SB) 344 to provide a longer timeline for a county office of education to hear these appeals. This bill takes effect January 1, 2018. The Los Angeles County Office of Education now has 60 calendar days after an appeal is filed to consider whether a student should attend school where he or she desires.

Other large county offices of education (Alameda, Contra Costa, Fresno, Kern, Orange, Riverside, Sacramento, San Bernardino, San Diego and Santa Clara) now have 45 calendar days instead of 40 school days to make this determination. These new timelines are set to expire on July 1, 2023 for the Los Angeles County Office of Education and July 1, 2019 for these other large county offices of education.

If you have any questions about the implementation of SB 344, 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:

Roberta L. Rowe

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.

Legislative Update: Governor Approves Changes to Pre-Suspension Conferences

October 2017
Number 65

On October 3, 2017, Governor Jerry Brown signed Assembly Bill (AB) 667, which generally requires schools to inform students about other means of correction that were attempted before suspending a student at the mandatory informal disciplinary conferences. This bill takes effect January 1, 2018.

Education Code section 48911, subdivision (b), requires a student being suspended to be informed during the mandatory informal pre-suspension conference of the reason for the suspension and the evidence against the student. The student must be given the chance to tell his or her side of the story and to produce any evidence to support it. AB 667 will now also require that students be informed of the other means of correction that were attempted prior to suspension. Other means of correction, defined under Education Code section 48900.5, include, but are not limited to, referrals to a school counselor, a student study team, a restorative justice program, after-school programs and a special education assessment.

AB 667 does not change the law about when other means of correction must be attempted before a school district can suspend a student. Under Education Code section 48900.5, there are certain disciplinary violations or facts offense and before use of other means of correction.

AB 667 continues the Legislature’s desire to reduce the total number of suspensions and expulsions since the passage of AB 420 in 2014, which limited school districts’ ability to suspend and expel students for disrupting school activities or committing an act of willful defiance. (See 2014 Client News Brief No. 72.) These measures are rooted in studies which show over half of students with multiple suspensions are chronically absent, boys are three times more likely to be suspended than girls, and students of color, foster youth, and low-income students are disproportionately suspended. The California Department of Education has reported a 34 percent drop in suspensions and a 40 percent drop in expulsions since AB 420 was implemented.

School districts and county offices of education will need to update their disciplinary procedures to ensure that this new notice requirement at the informal pre-suspension conference is met.

If you have any questions about the implementation of AB 667, please contact the authors of this Client News Brief or an attorney at one of oureight offices located statewide. You can also visit ourwebsite, follow us onFacebook orTwitter or download our Client News Brief App.

Written by:

Roberta L. Rowe

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.

Legislative Update: New Immigration Laws Protect Undocumented Students

October 2017
Number 64

On October 5, 2017, Governor Jerry Brown signed a package of bills aimed at enhancing protections for immigrants. Three of the bills have significant implications for schools and students. The three bills become effective January 1, 2018.

Assembly Bill 699: Mandates New Supports and Policies for Immigrant Families

Assembly Bill (AB) 699 requires schools and school districts to provide an array of new supports for immigrant families and limits the assistance schools may provide with immigration enforcement activities. The bill’s major provisions are described below.

Discrimination:

The bill expressly prohibits discrimination on the basis of immigration status. Immigration status cannot be used as a basis to deny students access or opportunity within public schools.

Collection of private information:

School officials are prohibited from collecting or requesting information or documents regarding the citizenship or immigration status of students or their family members unless required by law, such as for student work permits or the federal school lunch program. The bill restates a recently enacted prohibition on asking for Social Security numbers or the last four digits of Social Security numbers.

Detained and deported parents:

A school should not contact Child Protective Services (CPS) to assist students whose parents have been detained or deported by immigration officials until it has exhausted all other avenues to ensure their care. Schools are required to pursue all contacts on the child’s emergency card or any other instructions provided by a parent or guardian prior to contacting CPS. The intent of this provision is to avoid the unnecessary placement of children in foster care.

Student and family support:

Schools must provide “Know Your Rights” information to parents. For example, students have the right to a free public education regardless of immigration status, and schools must advise parents of this right. This information and notification may be provided in a school or school district’s annual notice to parents, or by any other cost-effective means. The California Attorney General’s website includes Know Your Rights resources at https://oag.ca.gov/immigrant/rights.

Bullying and harassment education:

Under AB 699, schools must educate students about the negative impacts of bullying based on a student’s actual or perceived immigration status or their religious beliefs or customs. According to a Legislative analysis, there have been hundreds of reported incidents of bullying, harassment and intimidation across the country based on these factors this year. The California Department of Education is now required to ensure school districts adopt policies prohibiting discrimination and establish procedures for reporting and addressing such incidents. Schools may need to modify anti-bullying curricula and provide additional professional development to staff in order to address immigration status and religious practices and customs.

Safe Haven Policies:

By April 1, 2018, the California Attorney General must create model policies that address immigration agents’ requests to access school sites or for information about students or their family members. Schools must implement equivalent policies by July 1, 2018.

Report to Board:

Superintendents or charter school principals are required to timely report to their governing boards any law enforcement request for student information or for school site access for immigration enforcement.

Senate Bill 54: “Sanctuary State” Bill Limits Assistance with Immigration Enforcement

Informally known as the “Sanctuary State” law, Senate Bill (SB) 54 prohibits state and local law enforcement agencies, including school police and security departments, from assisting immigration enforcement in any way. Specifically, law enforcement agencies may not use money or personnel to investigate, interrogate, detain, detect or arrest persons for immigration-related offenses.

By October 1, 2018, the state Attorney General must publish model policies for limiting assistance to immigration enforcement and to ensure that public schools, public health agencies and courthouses remain safe and accessible to all California residents, regardless of immigration status. All public schools, California Community Colleges, California State Universities, public health centers and courthouses must adopt these policies and become “safe zones” for immigrants. Other organizations that provide services related to education or physical and mental health such as libraries, shelters and the University of California system, are encouraged to adopt similar policies.

SB 54 does not prevent Immigration and Customs Enforcement or the Department of Homeland Security from doing their work by using their own resources to enforce immigration laws. The law seeks to ensure effective policing to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments. Nothing in the new law prohibits California law enforcement agencies from asserting its own jurisdiction over criminal law enforcement matters.

Senate Bill 257: Residency Retention for Students Whose Parents are Detained or Deported

Existing law generally requires students to attend school in the district in which their parent or legal guardian resides. Senate Bill (SB) 257 adds section 48204.4 to the Education Code permitting students to meet residency requirements when both of the following requirements are met:

(1) The student’s parent or guardian has departed California against his or her will, and the student can provide official documentation evidencing the departure; and

(2) The student moved outside of California as a result of his or her parent leaving the state against his or her will, and the student lived in California immediately before moving outside the state. The student must provide evidence of enrollment at a public school in California immediately before moving outside of the state.

SB 257 also allows a parent who must depart against his or her will to designate another adult to attend school meetings and to serve as an emergency contact.

The bill defines a person who has departed against their will as either:

  • A person in the custody of a government agency who is transferred to another state;
  • A person subject to a lawful removal order, who was either removed or was permitted to voluntarily leave California before being removed; or
  • A person subject to any additional circumstances consistent with these purposes, as determined by the school district.

If you have questions about these new laws and their impact on schools, 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

Sara E. Santoyo

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.