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School
Law News IN THIS ISSUE:
Fourth Circuit Rules Public Bodies
May Open Meetings With Prayer The Fourth Circuit United States Court of Appeals’
recent decision in Wynne v. Town of Great Falls, South Carolina affirms
the right of public bodies, including school boards, to open their
meetings with a ceremonial, non-sectarian prayer.
A three-judge panel of the Court of Appeals said that while a
public body “generally may invoke Divine guidance for itself before
engaging in its public business,” the public body cannot “exploit this
prayer opportunity to ‘affiliate’ the Government with one specific
faith or belief in preference to others.”
By way of background, the Town Council (Council) of
Great Falls, South Carolina, routinely opened its meetings with a prayer,
which concluded with “in Christ’s name we pray.”
Darla Wynne, a citizen of the community and follower of the Wiccan
faith, began regularly attending Council meetings in 1999.
Although Ms. Wynne initially took part in the prayer, including
standing and bowing her head, she eventually objected to the
aforementioned practice and asked that instead, the Council’s prayers
reference only “God,” or that the Council set up a way for members of
different religions to be allowed to offer the opening prayers. To put it mildly, the Council was not supportive of Ms.
Wynne’s request. In fact,
the mayor indicated in a public meeting that the Council had always opened
its meetings with specifically Christian prayers and would not change
because of Ms. Wynne. After Ms. Wynne requested that the opening prayers be
modified, the Council began restricting her speaking time at its meetings
and began treating her differently than other citizens. For example, at one meeting, the Council would not permit Ms.
Wynne to participate after she arrived a few minutes late in order to
avoid the specifically Christian prayer, even though she had met the other
requirements such as signing up in advance to speak at the meeting.
Additionally, citizens in the community began referring to Ms.
Wynne as a “Satanist,” ostracizing her, and threatening her welfare.
In August 2001, Ms. Wynne filed a lawsuit requesting
that the Council be required to replace Christian prayers with reference
to a generic deity, such as “God.”
After hearing arguments, the U.S. District Court issued an
injunction banning the Council “from invoking the name of the specific
deity associated with any one specific faith or belief in prayers given at
the Town Council meeting.” On appeal, the Fourth Circuit agreed.
Specifically, the Court of Appeals determined that the Council’s
prayers violated the Establishment Clause of the First Amendment to the
U.S. Constitution because they promoted Christianity over all other
religions. The Fourth Circuit
also ruled, however, that public officials may offer brief invocations
before engaging in public business, as long as such invocations are
“non-sectarian” and “non-proselytizing.”
It also indicated, without expressly deciding, that public bodies
likely would not violate the First Amendment if they allowed members of
various religions to offer brief prayers on a rotating basis, primarily
because no religion would be “advanced” or “disparaged” by the
public body through such prayers. In light of this recent Fourth Circuit decision,
which is binding in South Carolina, school boards that choose to open
their meetings with prayers should generally ensure that any prayers
offered are non-sectarian and non-proselytizing.
In other words, school boards should ensure that such prayers do
not promote or advance any one specific religion, including Christianity.
As the Court of Appeals stated the point, the school board
“cannot exploit this prayer opportunity to affiliate the Government with
one specific faith or belief in preference to others.” Alternatively, school boards may choose to invite
clergy or members of the community from different faiths to offer brief
invocations on a rotating basis. Obviously,
the decision of whether or not to open public meetings with a prayer is a
serious one that may require thoughtful consideration and deliberation of
the various options. Fourth Circuit Permits Distribution
of Religious Flyers The Fourth Circuit United States Court of Appeals
recently determined that a Maryland school district’s refusal to
distribute information promoting an after-school “Good News Club” run
by the Child Evangelism Fellowship violated the Establishment Clause of
the First Amendment of the U.S. Constitution.
The Establishment Clause prohibits public bodies from taking any
action, which has the effect of either endorsing or coercing participation
in religious activities. In the Maryland school district, elementary school
teachers routinely distributed materials for numerous governmental and
non-profit organizations, such as the 4-H Club and the Boy Scouts.
The school district, however, denied the request of the Good News
Club to distribute information and permission slips to students on the
basis that involving public school teachers in the distribution of overtly
religious materials would imply government endorsement of religion in
violation of the Establishment Clause.
In Child Evangelism Fellowship of Maryland, Inc. v.
Montgomery Cty. Pub. Schools, the Fourth Circuit determined that the
school district could not demonstrate a compelling governmental interest,
based on Establishment Clause concerns, to justify its policy against
distributing religious materials while allowing distribution of
non-religious materials. The
Fourth Circuit also determined that the distribution of the Good News Club
materials during non-instructional times would not create a perception of
endorsement or coercion by government officials.
Further, it specifically determined that the school district could
not refuse to allow the Good News Club to distribute its flyers simply
because they were religious in nature. Based on this decision, a school district is not
required to distribute religious flyers or other materials. If, however, a school district permits some organizations,
such as Boy Scouts, Girl Scouts, little league organizations, or other
community organizations to distribute materials, it may be required to
permit religious organizations to distribute information as well. In other words, once a school district decides to permit the
distribution of materials by non-school groups, it generally may not
differentiate between outside organizations on the basis of the content of
their materials. In light of the unclear and ever-changing nature of
religious issues in public schools, the decision of whether to allow
outside groups to distribute materials in the schools must be made on a
case-by-case basis, based on the totality of the circumstances and the
best needs of the district. Pledge Of Allegiance In Schools
Upheld By U.S. Supreme Court In June 2004, the United States Supreme Court
overturned a decision by the Ninth Circuit Court of Appeals, which had
previously ruled that a school board policy mandating teachers to begin
each school day by requiring students to recite the Pledge of Allegiance
is unconstitutional. Although
the Supreme Court did not specifically rule that such a policy is
constitutional, its decision has the effect of permitting the Pledge of
Allegiance to be recited by school children. In this case, the Supreme Court overturned the lower
court on a technical matter related to the plaintiff’s custody of his
daughter. In this case, Elks
Grove United School District v. Newdow, the self-professed atheist father
of the student filed suit on behalf of his daughter challenging a school
board policy, which required teachers to begin each school day by having
students recite the Pledge of Allegiance.
Neither the mother nor the child objected to the recitation of the
Pledge of Allegiance. Because
the father is the non-custodial parent of the student, the Court ruled
that he did not possess sufficient legal “standing” to challenge the
constitutionality of the words “under God” in the Pledge of Allegiance
on behalf of his daughter. As a result of the Supreme Court’s decision,
schools may continue their daily recitations of the Pledge of Allegiance.
The decision, however, does leave open the possibility that another
parent, who possesses proper legal standing, may challenge the
constitutionality of the Pledge of Allegiance.
To date, no such challenge has been filed with the United States
Supreme Court. “Faith Based Organizations” And
Federal Grant Programs On June 4, 2004, the United States Department of
Education (DOE) issued final regulations concerning the ability of
religiously-affiliated organizations, called “Faith Based
Organizations” (FBO), to compete for opportunities to participate in
federally-funded programs as a grantee, subgrantee, or contractor to a
grantee or subgrantee. The new regulations are amendments to existing DOE rules on
federal grants accounting and administration.
The following summary addresses only the obligations of a local
school district as a grantee or subgrantee, when it is contracting with an
FBO to carry out a program supported by a grant; however, the basic rules
for FBO practices and limits are the same regardless of the method by
which the federal grant funds come to the FBO.
The new rules clearly state that an FBO is eligible
to contract with a school district on the same basis as any other private
organization under federally-funded programs.
In fact, in the selection of goods and services providers under
federal grants, a school district cannot discriminate for, or against, a
private organization on the basis of the organization’s religious
character or affiliation. Under the rules, if an FBO receives federal grant,
subgrant, or grantee-contract funds, the FBO cannot use the funds to pay
for religious worship, instruction, or proselytization, nor may it use the
funds to purchase equipment or supplies to be used for such activities. The rules also provide that a private organization, which
engages in inherently religious activities such as religious worship,
instruction, or proselytization, must offer those services separately in
time or location from any programs or services supported by a contract
with a school district, and participation in any such inherently religious
activities by beneficiaries of the programs supported by the contract must
be voluntary. Both of the
foregoing provisions contain an exception for situations where the FBO
receiving the funds “is selected as a result of the genuine and
independent private choices of individual beneficiaries of the program and
provided the organization otherwise satisfies the requirements of the
program.” Under the new regulation, the FBO may retain
independence, autonomy, right of expression, religious character, and
authority over its governance. The
FBO may not, however, discriminate against a beneficiary or prospective
beneficiary in the provision of program services on the basis of religion
or religious belief. Finally, a religious organization’s exemption from
the federal prohibition on employment discrimination on the basis of
religion is not forfeited when the organization contracts with a grantee
or subgrantee. U.S. District Court Judge Dismisses
Overtime Suits Against South Carolina School Districts On April 14, 2004, U.S. District Court Judge Henry
Floyd dismissed all cases that had been filed by the Mississippi-based
School Litigation Group on behalf of classified employees of 25 different
South Carolina school districts on the ground that the Eleventh Amendment
to the U.S. Constitution bars individual employees from filing suits
against South Carolina school districts under the Federal Fair Labor
Standards Act (FLSA). In his
decision, Judge Floyd ruled that because South Carolina school districts
are so closely regulated by South Carolina law and State Department of
Education regulations, they are “arms of the State,” and as such, they
share the State’s immunity from private FLSA suits.
At the time of Judge Floyd’s decision, none of the districts sued
in other states – including Mississippi, Alabama, Georgia, or Arkansas
– had moved to dismiss or otherwise sought a ruling on the Eleventh
Amendment defense. The School Litigation Group did not appeal any of the
dismissals. Thus, Judge
Floyd’s decision, combined with the failure to file an appeal, should
effectively prevent any South Carolina school district employee from
filing a private lawsuit in federal court seeking unpaid overtime wages
under the Fair Labor Standards Act (FLSA).
The decision may also permit districts to raise the Eleventh
Amendment to defeat other types of future lawsuits. The attorneys who filed the cases on behalf of
classified employees in South Carolina claim to have recovered almost $30
million for classified employees in Mississippi alone.
Given most South Carolina districts’ limited financial resources,
the potential financial impact on public education in South Carolina could
have been devastating had these suits been allowed to go forward. Districts should understand, however, that the ruling
does not mean that they are no longer covered by the FLSA. Although employees cannot bring private suits, the United
States Department of Labor still has jurisdiction to investigate unpaid
overtime compensation claims against school districts and enforce the FLSA
through legal action. If the
Department of Labor concludes, after investigation, that a district has
violated the FLSA, an aggrieved employee normally would be allowed to
recover his or her actual unpaid wages going back two years.
Employees would not, though, be able to recover any of the
liquidated damages, interest, and attorney’s fees that would be
recoverable in a private lawsuit and which drove school districts in other
states to settle the suits the School Litigation Group filed against them. The Department of Labor does not appear inclined to
pursue any type of systemic investigation of school pay practices in South
Carolina, and employee complaints to the Department of Labor have been
very isolated. Nevertheless,
school districts should continue to examine their pay practices for FLSA
compliance and promptly correct any errors.
U.S. Department Of Labor Clarifies
Volunteer Rules For Classified Employees Since the Mississippi-based School Litigation Group
began pursuing collective-action overtime lawsuits against school
districts in the Southeast two years ago, many school districts have asked
local offices of the U.S. Department of Labor (DOL) to conduct audits and
provide assistance in complying with the Fair Labor Standards Act (FLSA). Local DOL offices have given school districts inconsistent
advice regarding whether school district employees can properly
“volunteer” for school-related activities.
This inconsistent and often incorrect advice has caused many
districts significant administrative problems with after-school activities
and resulted in substantial overpayments to classified employees,
particularly employees with coaching and assistant coaching duties.
In a recent opinion letter to Congressman Cass Ballenger of North
Carolina, the DOL has attempted to clarify how the FLSA rules apply to
school employees who donate their time for coaching duties, field trips,
booster clubs, tutoring, and other after-school activities. To qualify as volunteer service exempt from the FLSA:
(1) participation in an activity must be the employee’s own free choice,
without direct or implied coercion from the employer;
(2) the duties performed as a volunteer must be different from the
duties of the employee’s regular job; and (3) the employee must either
receive no compensation for the volunteer service or “nominal
compensation” such as reimbursement for expenses, reasonable benefits,
or other insignificant sums not designed to substitute for compensation. In the letter to Congressman Ballenger, the DOL
indicated it would not pursue overtime or minimum wage claims on behalf of
non-exempt employees who volunteer for certain after school services.
For example:
Unfortunately, the DOL did not attempt to define
“nominal compensation” for the purposes of the exemption, and it
remains unsettled whether stipends or other fees commonly paid for
assistant coaching duties can be considered “nominal” compensation
under the FLSA rules. Although this new guidance is potentially very
helpful to school districts, which permit non-exempt employees to
volunteer as coaches and club sponsors, districts must still be prepared
to establish that their employees’ services are truly voluntary and not
coerced or implied. In
addition, school districts should not assume that stipends paid for
coaching and other volunteer duties are sufficiently “nominal”
compensation in compliance with the FLSA volunteer rules.
Accordingly, districts should review their practices with regard to
assistant coaches and other traditional “volunteer” positions and
implement controls to make sure they can continue to receive favorable
treatment under this new guidance. The SCHOOL LAW NEWSLETTER is published twice yearly
by Childs & Halligan, P.A., 900 The Tower at 1301 Gervais Street, P.O. Box 11367,
Columbia, SC 29211, (803) 254
4035, and is designed only to give general information on the developments
actually covered. It is not
intended to be a comprehensive summary of recent developments in the law,
to treat exhaustively the subjects covered, or to provide legal advice or
render a legal opinion. Copyright © 2007 Childs & Halligan, P.A. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.
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