The year 2023 has been a wild ride thus far for both pop culture and school law. The first six months had Prince Harry’s tell-all memoir about the life of the royal family and the iconic Barbie movie just recently appeared in theaters; we can only imagine what the rest of 2023 will hold. Just as pop culture has been spicy the last six months, the courts have also provided endless fodder for school attorneys. Let’s break down the recent cases which impact schools, and what they mean for you.
303 Creative LLC. v. Elenis, 143 S. Ct. 2298 (2023).
This is a free speech case SCOTUS decided on June 30, 2023. The case involved a graphic designer in Colorado who sought an injunction to prevent Colorado from forcing her to create websites promoting weddings which defied her beliefs that marriage should be a union between a man and a woman. The Court held that the Free Speech Clause of the First Amendment prohibits Colorado from forcing the designer to create a message which the designer disagrees with. The Court specifically referenced cases involving government compelled speech such as Barnette (the pledge of allegiance case). The Court reiterated the protections outlined in the First Amendment such as the protection of an individual’s right to speak one’s mind, including on the internet. As stated by the Court, “Nor, in any event, do the First Amendment’s protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive.”
What does this mean for schools?
While this case was decided on a narrow exception, it is important to note schools need to make sure they are not limiting employee free speech. The Pickering-Connick Test still applies and says that the First Amendment protects an employee’s speech if the employee speaks 1) as a citizen, 2) on a matter of public concern, 3) and not pursuant to the employee’s "official duties,” unless the school can show that it’s need for efficient operation, harmony in the workplace, and effectiveness of the employee outweigh the employee’s rights.
Groff v. DeJoy, 143 S. Ct. 2279 (2023).
This is a Title VII case SCOTUS decided on June 29, 2023. A USPS mail carrier, Gerald Groff, who occasionally was required to deliver packages on Sundays due to an Amazon fulfillment contract with USPS, argued that Sunday should be devoted to worship. He sued under Title VII of the Civil Rights Act of 1964 after he received discipline by USPS for failing to work on Sundays which resulted in his ultimate resignation. In general, Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in an undue hardship on the employer. SCOTUS held that to show an undue hardship, Title VII requires the employer to provide that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The Court did not define what “substantial costs'' look like. With this decision, the Court ultimately increased the burden employer’s must show to deny a request for a religious accommodation--albeit raising it from the old standard, which had been anything more than a de minimis (i.e., trivial) burden.
What does this mean for schools?
If you receive a request for a religious accommodation under Title VII, you must conduct an analysis on the reasonableness of the accommodation and whether it will create an undue hardship on the school. This analysis should look at things like productivity, employee morale, cost, etc. We highly recommend calling your school attorney to walk through this analysis before denying a request. (We promise it will be cheaper in the long run.)
Counterman v. Colorado, 143 S. Ct. 2106 (2023)
Decided on June 27, 2023, Counterman addressed true threats under the First Amendment in the context of a criminal prosecution. In this case, Counterman sent hundreds of Facebook messages to a local singer, C.W. Counterman and C.W. had never met nor did C.W. respond to any of Counterman’s messages. Counterman’s messages contained a mixture of innocuous (but creepy) comments and also threats such as “You’re not being good for human relations. Die.” These messages caused C.W. to live in a constant state of fear and impacted her daily living. C.W. made a report to local law enforcement who charged Counterman criminally under a Colorado statute. Counterman argued that his speech was protected under the First Amendment and that the messages were not “true threats.” The Supreme Court had to decide whether the First Amendment requires proof that the defendant had some subjective understanding of the threatening nature of the defendant’s statements, in order to avoid a “chilling effect” on speech made by unwitting speakers. The Court adopted a recklessness standard which means “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
What does this mean for schools?
In general, we believe there is a good argument that this case does not necessarily affect student discipline cases better handled under the Tinker standard. Because there is no criminal sanction triggered in student discipline, such as with Counterman, we like a school’s argument that the chilling effect on speech is mitigated. As always, for disfavored student speech or conduct that may implicate First Amendment protections, you should focus on gathering and documenting the evidence of disruption.
One of the great things about school law is that it is always interesting. One of the not-so-great things is that it is always changing, and more than ever cases outside of the school context seem to implicate things we’re all facing inside of schools. We do everything we can to keep our clients informed about developments in the law, which has been and will continue to be a wild ride in 2023-24. If you have questions about these decisions or any other emerging area of education law, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com.
KSB Webinar Series
As we gear up for school, the KSB crew has developed an exciting slate of webinars for this upcoming year. For Nebraska clients, click here and South Dakota clients click here to review the options and topics for 2023-2024.