Legal Entanglement Project: Part 3 - Case Law Reviews
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The Student and Wellness Policy adopted December 15, 2016 stated
information to protect the rights of students primarily about nutrition and physical
exercise. For example, there are listed seven “Mandated Regulatory Procedures”
regarding student’s wellness and fitness. For instance, Coordinated School Wellness
Councils is appointed, Nutrition standards, Education and Promotion are established.
Physical education and Physical activity rules are also represented. In addition, a term
“Other school-based activities were also included in this policy. “Other school-based
activities are in regard to wellness messages. However, one pertinent activity is missing
and that is students' right to recess is not clearly defined or mentioned regarding the
student’s First Amendment rights to recess under the rights to expression through play,
but rather this policy can be misconstrued or taken for granted that recess is always
implemented. But is it always?
The policy needs to be revised to include the students rights to recess because It
seems like if you keep children inside or even as a punishment for misbehavior, they will
act out more. If students don't get to go play and burn off their energy this infringes on
their first amendment rights. They have the first amendment right to recess because
they will be able to express their emotional and physical energy. In addition, playing at
recess helps the students to burn off stress and extra weight while doing so. For this
reason, the rights to recess helps to lower stress and lower stress improves health and
wellness. Therefore, students' right to recess is a self amendment right of expression
that directly leads to their health, wellness and safety.
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Case Analysis
In Morgan v. Plano Independent School District, 589 F.3d 740 (5th Cir. 2009) the
Fifth Circuit Court of Appeals upheld the school district’s rules for student distribution of
written materials. The 2005 Policy permits distribution of materials: 1. 30 minutes before
and after school; 2. At three annual parties; 3. At recess; and 4. During school hours,
but only passively at designated tables. Morgan sets out the importance of Recess as a
place or time in which students may exercise their First Amendment Rights, and enjoy
uninhibited conversations with each other. This case sets out the schools liability for
violations; a student’s first Amendment rights if school Prohibits or penalizes racial
insults that are made at Recess. This case is important because it establishes recess as
a place in which students may exercise their first amendment rights.
The following three cases go to the primary objections regarding allowing recess,
namely the potential liability of the school for the conduct and behavior of students
during recess.
Simonetti v. School Dist. of Philadelphia, 308 Pa. Superior Ct. 555 (1982), 454
A.2d 1038. The Philadelphia case says what proper supervision is thereby in the
Handbook says it real clearly what proper supervision is. In Simonetti v. School Dist. of
Philadelphia,there was a student who got hurt in the eye while playing and returning
from recess to class;recess was over and the students were coming inside. The family
Legal Entanglement Project: Part 3 - Case Law Reviews
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was saying that the teachers should have been paying more attention and should have
been able to prevent this incident from occurring in the first place. The family was
awarded damages, but the ruling stated that the teacher did nothing wrong. As a result
were kept inside and this indicates that because the students were already getting
recess prior to this incident in questions it suggests that the students while at recess
were exercising their first Amendment rights, and to take away recess would only
impede that right to expression. Expression in this case, means they have the right to
exercise for wellness and to collaborate and communicate with one another during
recess. The teachers actions or inactions were.insufficient to impose liability on the
school.
Dariano v. Morgan Hill Unified School District, 745 F.3d 354 (9th Cir. 2014)
Discusses a school's liability for infringing on students' first amendment rights. A group
of students wore T Shirts showing the American flags; the school officials became
aware that this could lead to violence requested that the students turn their shirts inside
out or go home with excuse absences. The family of the students didn’t think it was a
fair decision and sued. The students claim this action violated their constitutional rights
to their freedom of expression. In addition, The student thought they were being treated
differently from other students thereby their fourteen Amendment rights were also
violated. The students lost the case because it was ruled that the school officials acted
reasonable given the official circumstances of threats. The students in this case, tried to
exercise their rights to freedom of expression, but were stopped due to concerns from
the school officials about violence. If students were to be kept in from recess, they
would lose their fourteenth amendment rights to equal protection for recess rights as
Legal Entanglement Project: Part 3 - Case Law Reviews
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other have had in the past.
Sax v State College Area School Districts 240 F.3d 200, 140 Ed.Law Rep. 946
(3rd Cir. 2001). Sax v State College Area School Districts makes it clear that school may
enforce an anti harassment policy without incurring liability. This case discusses free
speech and anti harassment in the school. The school adopted a new anti harassment
policy. David Sax is claiming that the policy is unconstitutional because it violates free
speech. The first ruling was stated that it was not unconstitutional. The courts said it
was fine because it was limiting only harassment speech therefore, it was okay. When
the case was appealed, the court said that it was overly broad, and it was limiting too
many types of speech. The indication is that freedom of speech is a type of freedom of
expression from the first amendment rights. Therefore, recess is another form of
freedom of expression because students communicate and plan activities to freely
express themselves with each other while they play during recess.
Conclusion
In summary, these three cases demonstrate that a school’s fear of liability for
whatever happens during recess is not worth sacrificing the substantial benefits to
children in allowing recess because there is ample guidance from the courts as to what
actions and policies are too restrictive. These cases go to the primary objections
regarding allowing recess namely the potential liability of the school for conduct and
behavior of the students during recess.
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https://cases.justia.com/federal/appellate-courts/ca9/11-17858/11-17858-
2014-09-17.pdf?ts=1411079996
Morgan v. Plano Independent School District, 589 F.3d 740 (5th Cir. 2009)
https://cases.justia.com/federal/appellate-courts/ca5/12-40493/12-40493-
2013-07-26.pdf?ts=1411002693
Sax v State College Area School Districts 240 F.3d 200, 140 Ed.Law Rep. 946 (3rd Cir.
2001). https://www.lexisnexis.com/community/casebrief/p/casebrief-saxe-v-state
-coll-area-sch-dist
Simonetti v. School Dist. of Philadelphia, 308 Pa. Superior Ct. 555 (1982), 454 A.2d
1038 https://law.justia.com/cases/pennsylvania/superior-court/1983/308-pa-super-
555-0.html
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