News: Rights Watch
The Courts Weigh In...

...On moment of silence, seat assignments, and ESP rights.

In a decision with national implications, a divided federal appeals court has upheld a Virginia law requiring every public school in the state to establish a daily "moment of silence" to enable students to "mediate, pray, or engage in any other silent activity."

The Fourth Circuit Court of Appeals last July rejected arguments by a coalition of students and parents in Brown v. Gilmore that the practice violates the First Amendment's requirement of church/state separation.

The minute of silence does not "promote" prayer or any other religious activity, the two-judge majority argued. Rather, it provides each student a daily opportunity "to think, to meditate, to quiet emotions, to clear the mind, to focus on the day, to relax, to doze, or to pray."

As such, the pause at the beginning of the school day is an effective "classroom management tool" and makes for a "better school day," the majority concluded.

Warning that the "Virginia statute is, like the Trojan Horse, a hollow guise," dissenting Judge Robert B. King complained that the law is nothing more that a "thinly veiled attempt to reintroduce state-sanctioned prayer into [the public] schools."

Asserting that "the statute's true aim" is "to encourage students to pray," the judge concluded that the law is unconstitutional under the 1985 Supreme Court decision Wallace v. Jaffre, which struck down an Alabama "moment of silence" statute.

In October, the Supreme Court refused to hear an appeal of the Fourth Circuit's ruling.

Can a school district secretly videotape its employees in order to catch them loafing on the job? Accord-ing to an Ohio appellate court, the answer is "yes."

In the fall of 1998, officials of the Kings Local School District in Ohio installed a hidden video camera in the staff break room of Kings High School to find out if custodians who worked the graveyard shift were taking excessive breaks.

Two of the custodians who were secretly taped later sued claiming that the practice violated their Fourth Amendment right to be free from unlawful searches and seizures.

Rejecting that claim, the Ohio Court of Appeals for the Twelfth District, ruled in July that, because the break room was open for use by all school employees, the custodians had no "expectation of privacy" in that space.

The court went on to say that, even if the custodians did have an expectation of privacy in the break room, the secret taping was still permissible because the employer had a legitimate interest in determining whether the custodians were taking excessive, unauthorized work breaks.

In reaching its decision, the court relied on an earlier federal court ruling from Kansas that community college officials did not violate the Fourth Amendment by secretly videotaping the locker room of college security officers during an investigation of alleged thefts.

A federal appeals court in Chicago has ruled that a Wisconsin third grade teacher can be sued for making student seating assignments based on race.

The parents of an African-American student at John Muir Elementary School in Madison, Wisconsin, sued their third-grader's teacher, Nancy Zabel, after learning that she utilized a racially-based seating plan that paired up African-American students.

Zabel attempted to justify the practice by claiming that, "in my education training sometimes we were told that African-American students need a buddy, and sometimes it works well if they have someone else working with them because they view things in a global manner."

Last August, the Seventh Circuit Court of Appeals held in Billings v. Madison Metropolitan School District that this practice violates the Equal Protection Clause of the U.S. Constitution and that Zabel--but not the school district--can be held personally liable for money damages.

Although education support professionals (ESP) are sometimes treated like second-class citizens, a federal appeals court recently reaffirmed that ESP are entitled to the full protection of the U. S. Constitution, and can't be fired because they support the "wrong" candidate in a school board election.

Harold Taylor had a spotless employment record as a custodian in the Bell County (Kentucky) School District. His principal called him "the best custodian" he had ever had.

He was also politically active. Unfortunately for him, Taylor campaigned for the losing candidate in a school board election, a candidate whose chief campaign promise was to get rid of the superintendent, Yvonne Gilliam.

Payback time. Claiming a "financial crisis," Gilliam laid off Taylor a few months after the election and replaced him with one of her own campaign workers. As an ESP, Taylor didn't have "tenure" or any other job protection.

Fortunately for Taylor, however, he belonged to the Kentucky Educational Support Personnel Association, which, along with NEA, funded a federal lawsuit on his behalf.

The trial court dismissed the case before trial. But in October the Sixth Circuit Court of Appeals reversed.

"The First Amendment of the United States Constitution," the court declared, "prohibits the discharge of a public employee for his political beliefs or affiliations."

Emphasizing Taylor's "exemplary" work record, the court concluded that there was more than enough evidence to support Taylor's claim that Gilliam retaliated against him for working in the campaign of her political enemy. The case, Taylor v. Bell County Board of Education, has been sent back to the lower court for trial.

--Michael D. Simpson
NEA Office of General Counsel

Supreme Court To Hear Voucher Case

The U.S. Supreme Court has agreed to decide whether public funds can be used to pay for private religious schooling.

The case involves the six-year-old Cleveland school voucher program, which provides low-income families with tuition vouchers worth up to $2,250. For the 1999-2000 school year, 3,761 Cleveland-area students received vouchers, and 96 percent of the students used the vouchers to attend pervasively religious schools.

In a lawsuit brought by NEA and several other pro-public education groups, the U.S. Court of Appeals for the Sixth Circuit ruled last year that the use of taxpayer money to fund religious education breaches the wall of separation between church and state.

"This scheme," the court said, "involves the grant of state aid directly and predominantly to the coffers of private religious schools," resulting in the use of public money to subsidize religious indoctrination. As an example, the court cited one voucher school that requires its students to "pledge allegiance to the Christian flag and to the Savior for whose Kingdom it stands...."

Although the High Court struck down a similar voucher program in 1973, the emergence of a conservative majority on the Court has voucher pro-ponents predicting success this time around.

NEA General Counsel Robert Chanin will present oral argument to the Court in February or March, and a decision is expected early next summer.

--Michael D. Simpson
NEA Office of General Counsel