Sexual Harassment

The issue of sexual harassment—of students by school personnel or peers—has been the subject of a growing number of cases. The relevant law for most of these cases is a federal statute known as Title IX of the Education Amendments of 1972. Title IX provides, in relevant part, that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receIving Federal financial assistance." Thus, Title IX prohibits sex-based discrimination in any educational program or activity receiving federal funding and applies to nearly every school district and college in the nation.

Lawsuits invoking Title IX protection for sexual harassment of students were rarely litigated until a case made its way to the Supreme Court in 1992. The case, Franklin v. Gwinnett County Public Schools, involved sexual harassment of a female student by a male teacher, and the plaintiffs sued their school district. Earlier decisions had established that Title IX applies to entities only, such as school districts, and not to individuals.

The Justices ruled that sexual harassment of students by school personnel constituted discrimination and that plaintiffs could recover monetary damages against school districts in such cases. Comparing the teacher/student relationship to that of a supervisor over an employee, the Court noted that "when a supervisor sexually harasses a subordinate because of the subordinate’s sex that supervisor discriminates on the basis of sex."

When the Court in Franklin implied that students have a right to sue school districts over sexual harassment, the decision created incentives for private litigation. Prior to this ruling, complaints of sexual harassment were handled administratively by the school districts themselves. With the Franklin decision, plaintiffs and lawyers alike would be more likely to file sexual harassment grievances with the courts instead. However, the Court did not articulate what the standard of liability would be. In other words, the elements a plaintiff would have to prove to recover money damages from a school district were unknown.

Various standards of liability were advanced in the federal courts. A "no fault" or strict liability standard would hold school districts liable without fault every time a school employee sexually harassed a student. This standard is similar to a workers’ compensation scheme, where a student might file a claim or complaint describing the incident, and the school district or its insurer would have to provide compensation.

Another standard advanced was a "constructive knowledge" standard, which is used in Title VII cases involving employer-employee sexual harassment. This standard says that if a school district knew or should have known of the abuse but failed to take action, it would be liable. For example, the offender in Franklin sometimes interrupted a class and requested that the teacher on duty excuse the student, whereupon he sexually abused her in an office on school grounds. Under a constructive knowledge standard, the plaintiff could allege that the offender’s behavior was sufficiently suspicious that school officials should have investigated. Therefore, school officials would not need to have direct knowledge of any particular incident to face liability, so long as the incident took place "under their guard."

The Eleventh Circuit adopted an "actual knowledge" standard. This standard says that a school district cannot be held liable unless it had actual knowledge of the abuse and did nothing to stop it. Therefore, the students themselves, or perhaps a parent or teacher, would be responsible for reporting misconduct to the proper school officials. Following this notice, the school district would have the opportunity to take action, and, failing that, could be held liable for its inaction.

In June 1998, the Supreme Court put the issue to rest in Gebser v. Lago Vista Independent School District. The case involved sexual abuse of a female student by a male teacher. Some incidents took place during class time in which the student was the sole pupil of the teacher in an advanced-placement course. The plaintiff, assisted by the U.S. Department of Education, utilized the Court’s prior reasoning that sexual harassment at school was akin to harassment at work, and argued for the constructive-knowledge standard.

The plaintiffs’ argument stressed that even if school officials had no knowledge of the affair, they should have discovered it through ordinary vigilance. Therefore, the school district should be held liable as if they had had actual knowledge of the affair.

The Court, in a 5-4 decision, disagreed and opted for the "actual knowledge" standard. To recover monetary damages under this standard, a plaintiff must prove that he or she gave notice of the harassment to a proper school official, and that the official was "deliberately indifferent" to their complaints. An "appropriate official," to paraphrase Justice Sandra Day O’Connor, is one who has sufficient authority to take corrective action on behalf of the school district. This might mean a principal or superintendent, but probably not a teacher.

The Court observed that Congress’s intent in enacting Title IX was to discourage sex-based discrimination in schools. As a remedy for such discrimination, a school district might lose its federal funding, but not until the school district had a chance to rectify the problem on its own. Justice O’Connor noted that damages in even one sexual harassment suit could exceed the amount of money a school district receives from the federal government every year. Therefore, she reasoned, a school district must receive actual notice of any misconduct by its employees and be given a chance to solve the problem administratively before facing a potentially expensive lawsuit. In Gebser, the student did not complain to any school official about the sexual abuse, and the abuse did not come to light until a police officer happened to discover the teacher-student affair.

The Gebser decision was widely seen as a kind of victory for school districts. The "actual knowledge" standard appears to limit the liability of school districts by ensuring they will have notice of any misconduct and a chance to respond before facing the threat of litigation. Justice John Paul Stevens, in a written dissent, said that few Title IX plaintiffs who allege sexual discrimination "will be able to recover damages under this exceedingly high standard."

U.S. Secretary of Education Richard W. Riley was quick to point out that the Department of Education will continue vigorous enforcement of federal law prohibiting sex discrimination in schools. "A school district … is still responsible for taking reasonable steps to prevent and eliminate that kind of misconduct." School district officials in this case noted that they had no knowledge of the affair, and once it was discovered, the teacher was fired. School districts may still face liability for the misconduct of their employees under other federal laws, such as Title VII, and under state civil and criminal statutes.

Peer sexual harassment was the subject of a widely anticipated case heard by the Supreme Court in January 1999. At issue in Davis v. Monroe County Board of Education was whether, and under what circumstances, a recipient of federal education funds may be held liable under Title IX for student-on-student sexual harassment.

Davis involved a fifth-grade girl who was teased, groped, and otherwise sexually harassed by a male classmate in her Georgia school. The student and her mother complained to at least two different teachers and the principal after various incidents. The offender’s seat was reassigned away from the plaintiff, and the principal threatened the offender with disciplinary action. The boy was even arrested, apparently at the behest of the girl’s mother, and plead guilty to a count of sexual battery.

The plaintiffs filed suit in U.S. District Court under Title IX, alleging that school district officials failed to prevent the harassment after being notified of several incidents. This failure to respond, in their view, created a hostile environment that prevented the student from learning. In turn, attorney Verna Davis argued, if a child cannot learn, he or she is being discriminated against. The original suit in District Court asked for $500,000 in damages against the school district.

The Eleventh Circuit ultimately ruled against the plaintiffs. The court held that Title IX does not apply to cases of peer sexual harassment. The National School Boards Association supported the Georgia school district in the Supreme Court hearing and urged the justices to dismiss the suit. They argued that a victory for the plaintiffs could result in a litigation explosion. Attorney W. Warren Plowden cited a survey that 75 percent of high school girls and 66 percent of all boys report at least one instance of sexual harassment.

The plaintiffs’ attorney Davis, of the National Women’s Law Center, countered that not "every teasing would be sexual harassment." The distinction, as she stated, would be whether school officials knew of improper behavior and did nothing to stop it.

In 1999, the Supreme Court rendered its anticipated decision in Davis. Reversing the Eleventh Circuit’s decision, the Justices held, 5-4, that a private action under Title IX for student-on-student sexual harassment is allowed where a school district acts with deliberate indifference to known acts of harassment in its programs and activities. In essence, the Court stated that its reasoning in Gebser was equally applicable to peer harassment and it applied the same standard of liability.

The Court explained that a recipient of federal funds could be held liable in damages under Title IX only for its own misconduct. In the case of student-on-student harassment, liability arises from a school board’s "own decision to remain idle in the face of known student-on-student harassment in its schools." The Court rejected arguments that its holding would expose school boards to a litigation explosion, explaining that an action would lie only for harassment that is "so severe, persuasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit."

To be held liable under Title IX, a school board must have substantial control over the alleged harasser and the environment in which the harassment occurs. These conditions are satisfied most easily when the harasser is an agent of the school district (such as a teacher, coach, or other employee) and when the harassment occurs during school hours and on school grounds.

The Court stressed that its holding—"that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment"—does not require school boards to take specific disciplinary action or "purge its schools of actionable peer harassment" to avoid liability. Schools retain significant flexibility to discipline students as they see fit. "Deliberate indifference" to peer harassment will arise only where the recipient’s response to the harassment or lack thereof is "clearly unreasonable in light of the known circumstances."

The Court also noted that children often interact in ways that would be considered unacceptable among adults. Consequently, simple acts of teasing and name-calling will not support a claim for damages. Harassment must be persistent and severe and result in a systemic effect on educational programs or activities. Peer harassment is less likely to satisfy these requirements than teacher-student harassment.

In January 2001, the U.S. Department of Education, Office of Civil Rights (OCR), released revised sexual harassment guidance that outlines schools’ compliance responsibilities under Title IX. The guidance remains largely the same as that issued in 1997, but limited changes were made to reflect the Supreme Court’s decisions in Davis and Gebser.

OCR is responsible for ensuring compliance with Title IX, and it works with schools to prevent sexual harassment. OCR responds to complaints on an administrative level, notifies schools of potential violations, and works with them to implement corrective measures. The guidance thus makes clear that OCR’s compliance standards are more extensive than the standards applicable in private litigation for money damages and are based in the Title IX regulations rather than case law.

In addition to the changes noted above, the guidance clarified a number of Title IX issues. For example, it points out that Title IX prohibits sexual harassment regardless of the sex of the harasser and the person being harassed, even if both parties are of the same sex. Further, it explains that gender-based harassment, including that based on sex-stereotyping, may rise to the level of a Title IX violation if it is sufficiently "severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."

Copyright Act

The 1998 Digital Millennium Copyright Act (DMCA) amended the U.S. Copyright Act to conform to two international copyright treaties and represented an attempt to "move the nation’s copyright law into the digital age." To implement U.S. treaty obligations, the DMCA requires legislation making it illegal to circumvent copy-blocking measures (such as encryption and encoding) that control access to copyrighted works. Thus, Section 1201 of the DMCA, which took effect in October 2000, provides that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act]."

The law does provide an exemption for "nonprofit library, archive and educational institutions." These groups may circumvent access control measures "solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work." Some argue that the DMCA may have an impact on the "fair-use" principle that allows teachers, librarians, and other educators to excerpt copyrighted materials in the classroom.

After receiving comments from interested parties and holding public hearings, the Librarian of Congress ruled in October 2000 that two additional exemptions to the anti-circumvention laws would be added: (1) lists of websites blocked by filtering software applications; and (2) literary works, protected by access-control measures that malfunction or otherwise fail to permit access because of damage or obsolescence. This ruling displeased library associations, who argued that by only allowing two exemptions "users of digital information will have fewer rights and opportunities than those who use print material."

The DMCA is an evolving law, and the Copyright Office continues to examine its "impact on non-infringing uses of access-controlled copyrighted works."

The new copyright law may also affect distance-learning programs. Current copyright law allows educators to display pages of a book or other material via analog media such as television, without fees. Increasingly, educators and schools are making use of the Internet to broadcast and receive distance-learning programs. Rural schools, for example, often use distance learning to import courses in specialized subjects, such as Advanced Placement courses, that they otherwise could not offer. Educators want the fee exemption to apply to digital media as well. Publishers, who forecast explosive growth in distance-learning programs, especially in higher education, support the idea of licensing fees for any and all uses of their content.

Congress granted the U.S. Copyright Office six months to study the issue of paying license fees to display copyrighted materials over the Internet.

The U.S. Copyright Office released its "Report on Copyright and Digital Distance Education" in May 1999. The extensive report makes a series of recommendations to "improve distance education and maintain an appropriate balance between users and owners of copyrighted works." The report tempered its conclusions in light of the rapidly changing digital environment, acknowledging the flux and evolution in this area.

The report recommends, among other things, eliminating the "physical classroom" requirement that currently allows the display of distance-education programs only in a classroom setting or to persons who are unable to attend a classroom. Given the flexible nature of distance education and developing technology in this area, eliminating this requirement would make it easier for students to participate. According to the report, this limitation is "conceptually and practically obsolete." At the same time, to protect the interest of distance-education providers, the report recommends that the law ensure that such transmissions are made available only to officially enrolled students.

The report also recommends that Congress clarify the fair-use doctrine with respect to distance education. More specifically, the Copyright Office asks Congress to reaffirm that fair-use principles apply to activities in a digital environment and to provide examples of acceptable use. The office suggests that interested parties meet and discuss the relevant issues to develop balanced, comprehensive guidelines.

Legislation reflecting these recommendations is currently pending in Congress.

School Discipline

Student searches are generally permissible to the extent they conform to the Fourth Amendment’s prohibition of unreasonable searches and seizures. The Supreme Court, in New Jersey v. T.L.O. (1985), stated that searches are permissible where school administrators can justify the search at inception and establish that the search was reasonable in its scope. A search is ordinarily justified at its start when school officials have reasonable grounds for suspecting a search of a student will uncover evidence that the student has violated or will violate the law or school rules. A search is generally permissible in scope where the measures adopted are reasonably related to the object of the search and not excessively intrusive in light of the student’s age and sex and the nature of the infraction.

This "reasonable suspicion" test is relatively subjective, but courts across the nation have tended to uphold most student searches. Application of the test varies according to the nature of reasonable suspicion and reasonable scope, areas searched, and search measures. Generally, the more invasive the search, the greater the need for its justification. Searches of students’ lockers and their personal items (such as purses or bags) are considered less invasive than the search of a student’s person. Under most circumstances, strip searches of students are considered unreasonable in scope, given their highly intrusive nature. To ensure that these types of searches do not occur, some states have passed laws prohibiting schools from performing strip searches of students under any circumstances.

Administrative searches, using such means as metal detectors or urinalysis, are aimed at large groups of students rather than an individual student who has come under suspicion. As these administrative-search methods have become more commonplace, they have increasingly become subjects of litigation. In upholding these searches, courts from Oregon to New York have stressed that the safety concerns of school districts can outweigh the privacy concerns of students, especially where the searches are minimally invasive. In one New York case, the school district’s highly detailed metal-detector policy was cited by the court as a key factor in upholding its constitutionality.

Student drug testing implicates the Fourth Amendment and must therefore meet Fourth Amendment requirements. The U.S. Supreme Court is poised to decide whether random suspicionless drug testing of students engaged in extracurricular activities constitutes an unlawful search under the Fourth Amendment. While the Supreme Court has upheld drug testing of student athletes, it has not yet made clear to what extent school administrators can test other students. Federal courts have rendered conflicting opinions on the constitutionality of policies related to drug testing.

In the leading case in this area, Vernonia School District 47J v. Acton, decided in 1995, the Supreme Court upheld a policy mandating random drug testing of student athletes. The Court laid out a balancing test to determine whether such searches violate the Fourth Amendment, weighing the intrusion on Fourth Amendment interests against the promotion of legitimate governmental interests.

In Vernonia, the school district presented evidence that it was suffering from a significant drug problem and that student athletes were at the crux of the problem. To remedy this problem, the school began randomly testing students as a condition of participating in athletic programs. The Supreme Court, employing the balancing test described above, upheld the constitutionality of the program. The Court first considered "the nature of the privacy interest upon which the search . . . intrudes." School children have a lesser expectation of privacy than do members of the population generally and, according to the Court, student athletes have an even lower expectation of privacy than other students.

Next, the Court examined the character of the particular intrusion involved, finding the urine sampling in question to be minimally intrusive. Finally, the Court considered the "nature and immediacy of the governmental concern at issue." Given the evidence showing a significant drug problem at the school, particularly among student athletes, and weighed against the minimal invasion of privacy, the Court upheld the policy.

Recent cases have presented a variation on the question addressed in Vernonia. In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2001), which the Supreme Court has agreed to review, the Tenth Circuit Court of Appeals held that a school district violated the Fourth Amendment when it required random tests of all students involved in extracurricular activities, including members of the band, choir, Future Farmers of America, and other organizations.

Applying the criteria used in Vernonia, discussed above, the court found that the policy violated the Fourth Amendment. First, the court pointed out that, unlike the district in Vernonia, Independent School District 92 failed to demonstrate that it was suffering from a widespread drug problem, particularly among the students it tested. During a two-year period, very few students tested positive for drugs.

Looking next at the nature of the intrusion on Fourth Amendment rights, the court concluded that students have a reduced expectation of privacy and that participants in extracurricular activities have an even lesser expectation of privacy. Given this reduced expectation of privacy and the relatively nonintrusive nature of the drug testing (analogous to that of Vernonia), the court held that the "invasion of privacy was not significant."

Finally, the court considered the nature and immediacy of the concern and the efficacy of the intervention. It concluded that the district failed to show that it suffered from a substantial drug problem and failed to demonstrate that its testing policy properly addressed its concerns. On balance, therefore, the court found the policy to be unconstitutional. According to the court, "any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem."

As noted by the Earls court, a number of other federal courts have reached different conclusions regarding the constitutionality of random suspicionless drug testing. Sometime in 2002, the Supreme Court will likely clarify the extent to which school officials can administer drug tests.

School districts have increasingly turned to police to assist with searches. Police are held to a strict standard of "probable cause" when searching suspects, students or not, whereas educators are held to the lesser "reasonable suspicion" standard. The law is unclear on the standard needed for joint searches, but the rule of thumb appears to be that if educators initiate the search, then reasonable suspicion applies even if the police assist.

The federal Gun-Free Schools Act of 1994 requires that schools, as a condition to receiving Elementary and Secondary Education Act (ESEA) funds, have a policy mandating a one-year expulsion for students who bring firearms to school. Schools are allowed to adjust the mandatory one-year expulsion as circumstances warrant. Most states have complied with the law and now require districts to expel students for at least a year if they bring weapons to school.

For the most part, the zero-tolerance policies are doing what they were intended to do. However, some districts have expelled or suspended children over seemingly minor offenses such as bringing a G.I. Joe doll’s one-inch plastic gun to school.

The success of zero-tolerance policies for firearms possession has led many schools to enact similar policies for other infractions. Some commentators argue that adopting zero-tolerance policies for other types of student behavior, such as drug possession or fighting, is unjustified and has led to a dramatic increase in student suspensions and expulsions. Further, they argue that such policies disproportionately affect students of color. Researchers at Harvard University recently released a report that discusses the effectiveness of zero-tolerance policies and echoes these concerns. While they have come under increased scrutiny, zero-tolerance policies continue to play a central role in school disciplinary policy.

The Individuals with Disabilities Education Act (IDEA) is designed to ensure that children with disabilities receive a "free appropriate public education" that meets their special needs. IDEA provides federal funds to states that agree to provide disabled children with special education and "related services."

The Supreme Court recently examined the scope of a school district’s obligation to provide "related services" under IDEA. In Cedar Rapids v. Garrett F. (1999), the U.S. Supreme Court held that the term "related services" includes the provision of one-on-one nursing services to a student during school hours. The plaintiff in Cedar Rapids, wheelchair bound and dependent on a ventilator, required assistance during the school day. The student’s mother requested that the school district pay for the services needed by her son. The school district refused, arguing that IDEA did not obligate it to provide continuous one-on-one nursing services.

The student’s mother requested a hearing before the state board of education where an Administrative Law Judge agreed with her claims. The U.S. District Court and U.S. Court of Appeals affirmed. As the Court of Appeals explained, the student’s needs clearly fell within the definition of "related services" set out in earlier cases. First, the court explained, the requested services were "supportive services" because the student could not otherwise attend school. Second, the services requested did not constitute "medical services" (which must be administered by a physician and which school districts are not obligated to provide with a few minor exceptions) because a nurse or qualified layperson could perform them.

The school district appealed the case to the U.S. Supreme Court, which agreed with the Court of Appeals. The Court explained that the term related services "broadly encompasses those supportive services that ‘may be required to assist a child with a disability to benefit from special education’." Although acknowledging the district’s concerns over the cost of providing such services, the Court stated that it saw no reason to diverge from settled law in this area.

Congress passed the 1997 Amendments to the Individuals with Disabilities Education Act (IDEA) in an effort to balance school safety concerns with the protection of the due-process rights of disabled students. The 1997 Amendments clarified and codified much of the existing case law regarding discipline of disabled students.

Prior to the IDEA Amendments, there had been considerable litigation over discipline of students with disabilities. Two of the main issues were whether disabled students could be lawfully removed from their schools through suspension or expulsion, and, if so, whether their rights to a "free appropriate public education" were violated when these students were expelled. A principle known as the "manifestation of disability doctrine" emerged from the courts. This doctrine stated that a disabled student could not be suspended or expelled for misbehavior that was a manifestation of that student’s disability, but could be expelled if there was no relationship between the misbehavior and the disability. Courts were split on whether or not a disabled student who had been properly expelled would have to be provided educational services during the expulsion period.

Under the 1997 IDEA Amendments, a set of procedures are required to determine whether misconduct is related to the student’s disability. The team that developed the student’s individualized education program (IEP) is responsible for making this determination, employing all the evaluation data and behavioral history available to it. If evaluation data are not current, new assessments should be conducted. If the team determines that the student’s misbehavior was not a manifestation of his or her disability, the student may be disciplined in the same manner as a nondisabled student. The student’s parents may appeal the determination via an expedited hearing. If a hearing is requested, school officials bear the burden of proving that their decision is correct.

If a student is suspended or expelled under the IDEA, the law makes it clear that a free appropriate public education must be provided during the expulsion period. In addition, a behavioral assessment must be conducted with the goal of preventing any further misconduct.

The IDEA Amendments enhance school officials’ authority to discipline "dangerous" students, those students caught with weapons or drugs, or those who otherwise pose a risk to themselves or others. If school officials believe that a child with a disability is substantially likely to injure himself or others in his regular placement, they may ask an impartial hearing officer to remove the child to an interim alternative education setting for up to forty-five days. The team that developed the student’s IEP is required to conduct a functional behavioral assessment within ten days of the alternative placement and implement a behavioral intervention plan for the student.

The interim placement must be one in which the student can continue to participate in the general curriculum and educational goals specified in his or her IEP. At the conclusion of the interim placement, the student is to return to his or her former school, unless the school district and parent have agreed to a new placement. If school officials believe it would be dangerous to return the child after forty-five days, they may ask an impartial hearing officer to order that the child remain in the interim alternative educational setting for an additional forty-five days. They may also request subsequent extensions. Previously, a student’s placement could not be changed over the objections of the parent, even for dangerous behavior, unless the school district obtained a court order. Under the current law, if a disagreement occurs, an expedited hearing may be requested.

If a hearing is requested, school districts have the burden of proving that maintaining the student in his or her current educational placement is substantially likely to result in an injury to the student or others. School administrators must also show that they took reasonable measures to minimize that risk in the student’s current placement.

In March 1999, the U.S. Department of Education released its final regulations governing part B of IDEA, which guarantees a free appropriate public education to all children with disabilities. With respect to discipline, the regulations largely implement the 1997 IDEA Amendments discussed above. The regulations also clarify several issues. First, they provide a definition of "change in placement" that reflects longstanding Department policy. A "change of placement" in the disciplinary context occurs "when a child is removed for more than 10 consecutive school days or is subject to a series of removals that constitute a pattern."

The regulations also make clear that multiple short-term removals (ten consecutive days or less) for separate incidents of misconduct are allowed to the extent that children without disabilities would be subject to the same removal and as long as a "change of placement" does not occur.

In an effort to maintain flexibility, the regulations provide that if a removal is for not more than ten consecutive days or is not a manifestation of the child’s disability, services must be provided "to the extent necessary to enable the child to continue to appropriately progress in the general curriculum and appropriately advance toward the goals in his or her IEP." School personnel determine the extent of services needed to meet this requirement, with the assistance of the child’s special-education teacher. If a change in placement occurs, however, a child’s IEP team must be involved.

The final regulations also provide that "manifestation" determinations (and the IEP team meetings to make these determinations) are only required when a child is subjected to a disciplinary change of placement. This change aims to eliminate the need for unnecessary and repetitive IEP team meetings.

Religion and the Schools

Religious activities in public elementary and secondary schools have become one of the signature legal issues of the 1990s and beyond. Prior to 1990, the Establishment Clause of the U.S. Constitution, as interpreted by the Supreme Court in Lemon v. Kurtzman (1971), was thought to doom most attempts to integrate religious activities into public schools. The Lemon test states that, in order to be constitutional under the Establishment Clause, a law must have a secular purpose, must neither advance nor inhibit religion, and must not result in an excessive entanglement between government and religion.

During the 1990s, three strands of legal development emerged to challenge the Lemon test and affect the level of religious activity in public schools. First, the Equal Access Act (EAA), passed by Congress in 1984 and upheld by the Supreme Court in 1990 in Board of Education of Westside Community Schools v. Mergens, created a statutory right of access to school facilities for "noncurriculum related" student groups during noninstructional time. Courts have interpreted the EAA to apply to periods before and after school, and during lunchtime and activity periods.

The EAA provides that schools create a "limited public forum" if they allow noncurriculum-related student groups to meet. Under such circumstances, a school may not deny access or discriminate against student groups based on religious, political, philosophical, or other speech content. Schools are free under the EAA to prohibit religious clubs or other student-led religious activities as long as they prohibit all other noncurriculum-based clubs as well.

The EAA has recently been the subject of litigation over the definition of curricular and noncurricular clubs, particularly in the context of gay and lesbian student groups. Courts have been asked to decide whether schools unlawfully discriminate against such groups under the EAA by prohibiting them from meeting.

A second strand in the development of religious activities in schools emerged from the 1993 Supreme Court case Lamb’s Chapel v. Center Moriches Union Free School District. That case concerned the use of public school facilities after school hours by a religious group. In essence, the unanimous decision declared that religious speech was a fully protected subset of free speech. The key concept in the Court’s decision was that public school districts could not engage in "viewpoint discrimination." So, for example, a 1994 case held that a public school that permitted a Boy Scout troop to use its premises after school could not prohibit a parent-led religious group from also using the school premises at the same time, because both were involved with the viewpoint of moral development (Good News/Good Sports Club v. School District of the City of Ladue).

Similar to the idea of free-speech rights in Lamb’s Chapel is the concept of forum analysis. Forums are generally classified into one of three categories: traditional public forums (such as sidewalks or street corners), limited or designated public forums, and nonpublic forums. Various levels of free-speech protection attach to each forum designation. If a school opens its facilities to certain groups, it has created a limited public forum and cannot arbitrarily exclude certain groups because it disagrees with their message. Thus, a higher education case in 1981, Widmar v. Vincent, determined that once a University opened its campus to student groups, the campus shifted from a nonpublic forum to a public forum, and the university could not prohibit meetings for religious purposes.

The general legal assumption is that public elementary and secondary schools are nonpublic forums. However, if, for example, a school permits the distribution of nonreligious materials in a particular hallway, a court may find that the school has created a limited public forum in that hallway, and free-speech rights will attach to it. Therefore, the school could not prohibit the distribution of religious materials in that hallway. This was the result in a Seventh Circuit case in 1993 (Hedges v. Wauconda Community School District).

More recently, in Good News Club v. Milford Central School (2001), the Supreme Court held that a school district could not prohibit a religious group from holding after-school meetings in one of its elementary schools. Because the school had created a "limited public forum" by allowing other groups to meet, it was unlawful for the school to engage in "viewpoint discrimination" and bar the religious group from meeting. As noted above, when an entity creates a limited public forum, it is not required to allow all types of speech, but it must not discriminate against speech based on viewpoint, and its regulations must be reasonable in light of the forum’s purpose.

In Good News Club, the Court found that the club was engaging in the teaching of morals from a religious viewpoint, rather than engaging in religious worship. The Court rejected claims that allowing the group access would violate the Establishment Clause. Relying on its holding in Lamb’s Chapel, the Court explained that "there was no realistic danger that the community would think that the district was endorsing religion," as the meetings would be held after school hours, would not be sponsored by the school, would be open to the public, and the forum was already open to other groups.

School officials argued that, unlike Lamb’s Chapel, this case involved elementary students who would be more susceptible to believing that the school was endorsing the club and feel coerced to participate. The Court rejected these arguments, finding no basis for such a conclusion.

As will be discussed in more detail below, the last two decades have seen enormous changes in Supreme Court jurisprudence in this area.

The U.S. Supreme Court ended its 1996-97 term with a surprising reversal on providing public-school services in religious schools. The practical effect of Agostini v. Felton is to allow public school teachers to teach nonreligious subjects to students who qualify for Title I remediation inside the classrooms of private, religious schools. Prior to this ruling, Title I services could not be provided inside the premises of religious schools, resulting in the use of mobile classrooms, parked near the school grounds.

The Agostini case also laid the groundwork for a revised test for reviewing Establishment Clause cases. In Agostini, the Court modified the Lemon test and examined the challenged statute to determine whether it (1) has a secular purpose and (2) has the effect of advancing or inhibiting religion. According to the Court, government aid has the effect of advancing religion if it (1) results in government indoctrination; (2) defines its recipients by reference to religion; or (3) creates excessive entanglement. As will be further discussed below, a sharply divided Supreme Court continues to grapple with its review of Establishment Clause cases.

In one of a series of religion cases addressed by a divided Supreme Court during the 2000-01 term, the Court ruled in Mitchell v. Helms that Chapter 2 federal funds could properly be distributed to religious schools without violating the Establishment Clause. Chapter 2 of the Education Consolidation and Improvement Act of 1981 provides federal funds through state educational agencies to local educational agencies, which in turn lend educational materials and equipment, such as library and media materials and computer software and hardware, to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs.

Although a majority of the Court agreed that the program did not violate the Establishment Clause, there was no clear majority on the method used to reach this conclusion. Four justices, led by Justice Thomas, followed Agostini and concluded that the Chapter 2 funds did not have the effect of advancing religion. In support of their conclusion, the justices explained that the Chapter 2 program did not define its recipients by reference to religion, did not result in indoctrination, and the aid provided did not have an impermissible content.

Justice O’Connor concurred in the decision but wrote a separate opinion to explain her reasoning, with which Justice Breyer agreed. While she concurred that there was no violation of the Establishment Clause, she took issue with the breadth of the four justices’ analysis, fearing that it overemphasized the importance of neutrality to the exclusion of other relevant factors. The three dissenting justices argued that the ruling deviated from long-standing precedent and set the groundwork for allowing all types of aid to religious schools.

In June 2000, the Supreme Court held, 6-3, that a school district’s policy permitting student-led, student-initiated "invocations" at football games violated the Establishment Clause. At issue in Santa Fe Independent School Dist. v. Doe was a district policy authorizing student elections to determine, first, whether "invocations" should be delivered at football games, and second, who should deliver them. This policy was challenged and modified by the District Court to permit only nonsectarian, nonproselytizing prayer. Despite this modification, the Fifth Circuit Court of Appeals invalidated the policy as violating the Establishment Clause.

The U.S. Supreme Court agreed with the Fifth Circuit, finding the school policy invalid. The Court rejected the district’s argument that this was "private student speech," rather than public speech, explaining that the message was delivered on school property, at a school-sponsored event, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer. The Court also rejected the argument that the school football game was a public forum and distinguished cases involving forum analysis.

Instead, the Court relied on a 1992 school prayer case, Lee v. Weisman, and held that the policy violated the Establishment Clause because it did not have a secular purpose and resulted in "both perceived and actual endorsement of religion." Like the Weisman case, the Court found that the policy coerced students to participate in religious activities. Employing a student election process did not remove state responsibility for the message delivered.

Although this decision prohibits prayer under the circumstances described above, the Supreme Court has implicitly approved student-led prayer at graduation ceremonies. In Adler v. Duval County School Bd., the Eleventh Circuit upheld a school policy allowing for student-led invocations at graduation ceremonies. The Eleventh Circuit distinguished the Santa Fe case, arguing that in this case students voted to have a student speaker and then allowed student speakers to decide the content of their message. Thus, the terms of the school policy did not necessarily invite prayer or religious content as in Santa Fe. The Supreme Court recently declined to hear an appeal of the Adler case, implicitly endorsing the Eleventh Circuit’s decision.

Many school voucher programs implicate Establishment Clause concerns, and they have generated increasing controversy. The Supreme Court is poised to address the constitutionality of such programs, having agreed to review an Ohio voucher program that allows students to attend private parochial schools at state expense.

The Ohio program at issue provides primarily low-income families with vouchers for up to $2,250. Parents receive the voucher checks and must sign them over to the chosen school. Participating private schools must meet state standards and agree not to discriminate based on race or religion. All of the schools enrolled in the program at issue are private, and most are religious schools. Concerned parents challenged the program, arguing that it violated the Establishment Clause.

Although the Ohio Supreme Court upheld the program, lower federal courts rejected it as unconstitutional. Relying on a 1973 Supreme Court case, Committee for Public Education v. Nyquist (where the Court struck down a tuition reimbursement program), the Sixth Circuit Court of Appeals held, 2-1, that the provision of state funds to parochial schools violated the Establishment Clause. The court distinguished Agostini, discussed above, and reviewed the challenged legislation under the Lemon test. The court found that the voucher program violated the second prong of the Lemon test because it used state funds to advance religion. "As in Nyquist," the court explained, "the Ohio program contains no ‘effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and non-ideological purposes’."

The dissenting justice argued that the case should have been reviewed under the revised Lemon test and in light of the changed case law in this area.

The case was appealed to the Supreme Court, which will decide the constitutionality of the program and, possibly, the future viability of the Lemon test. Voucher advocates argue that the program is neutral toward religion and is consistent with changes in Establishment Clause jurisprudence. Voucher opponents maintain that the program is not neutral because choices are limited largely to religious schools. Given the changes in Establishment Clause jurisprudence, the Court may uphold the policy if proponents can establish that it is administered on a "neutral" basis.

Although the Court previously struck down a tuition reimbursement program, recent cases indicate that the Court is moving away from its previous position. The idea of "neutrality" appears to be the defining one of recent Establishment Clause jurisprudence. While pending Supreme Court decisions should add some clarity to the law in this area, the issue of religion in schools is far from settled.

Following are some guidelines suggested by the U.S. Department of Education and various commentators:

1. The school’s harassment policy should include protection from religious harassment.
2. Teachers and administrators should not support or participate in forms of student religious activities such as flagpole meetings or group prayer sessions.
3. Free speech is not an absolute right; governments can to some degree control time, place, and manner of expression, and school officials may want to designate certain locations in a building for forms of student expression such as distribution of literature.
4. Individual students can pray or read a religious text alone.
5. Schools may teach about religion, or its role in art, history, philosophy, music, and so forth.
6. School officials should include religion in their diversity statement to ensure that all religions and religious beliefs will be given equal protection and recognition.

Family Education Rights and Privacy Act

The Family Education Rights and Privacy Act (FERPA) is designed to protect the privacy rights of students in their "educational records." Under FERPA, "educational records" are "those records, files, documents, and other materials which—(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." Educational records must be kept confidential under the act.

This provision of FERPA has been implicated in a recent case involving peer grading. The Tenth Circuit Court of Appeals ruled in Falvo v. Owasso Independent School District (2000) that the peer-grading practice unlawfully violated students’ privacy rights under the act. The plaintiff in Owasso, whose son is learning disabled, argued that the practice "severely embarrassed" her son and unlawfully revealed "education records," protected under the act.

The Tenth Circuit agreed that the peer-grading process violated FERPA. First, the court explained that grades on student tests, which are subsequently entered into teachers’ grade books, fall within the first part of the statutory definition of "educational records" because they contain information directly relating to a student. The court next concluded that such records are "maintained" when they are written down and that a student who grades a test on behalf of a teacher is a "person acting for [an educational] agency or institution" under FERPA. Thus, the court held that the policy violated the act.

The school’s lawyers argued that the lower court’s ruling unnecessarily intrudes into school decision-making authority and goes beyond what was contemplated by FERPA. FERPA, they argued, protects students’ privacy in final institutional records only. Others argue that the case represents a victory for student privacy rights and protects students’ emotional well being.

The Supreme Court heard oral arguments in this case in November 2001 and may issue its ruling sometime next year. Two related issues that might be resolved in this case are whether a private right of action exists under FERPA (that is, whether parents can sue to enforce the statute) and to what extent courts should defer to agency interpretations of policy.