Case Study

High Court Rules in Online Threat, Religious Rights Cases By Mark Walsh

In two decisions last week, the U.S. Supreme Court touched on a pair of issues—potentially threatening online speech and religious accom­ modation—th a t are playing out in schools as much as in the rest of society.

The speech case, Elonis v. United States (No. 13-983), saw the justices ruling 8-1 to overturn the federal criminal conviction of Anthony Elo­ nis, a Pennsylvania man whose postings on Face- book included talk of shooting up a kindergarten class. But the majority stopped short of making any broad F irst A mendm ent rulings about In ­ ternet threats.

Meanwhile, in a separate case being watched by educators, E qual Em ploym ent Opportunity Commission v. Abercrombie & Fitch Stores Inc. (No. 14-86), th e court bolstered religious pro­ tections for employees by ru lin g for a young M u slim w om an who w as d enied a jo b a t a clothing re ta ile r because she wore a hijab, or head scarf.

Both rulings, however, h ad some advocates saying they h ad hoped for more clarity from the high court on how the rulings should be ap­ plied by those seeking to make decisions in these contentious areas. The Elonis ruling involved a 27-year-old am usem ent-park employee in 2010 who was experiencing difficulties w ith his wife and his job when he began posting violent mate­ rial on Facebook, including; “Enough elementary schools in a 10-mile radius to initiate the most heinous school shooting ever imagined. And hell h ath no fury like a crazy m an in a kindergarten dass. The only question is ... which one?”

Mr. Elonis testified in court th a t th e posting w as a reference to th e song, “I’m Back,” by the rap artist Eminem, in which the artist had criti­ cized his ex-wife and fantasized about partici­ pating in the 1999 shootings a t Columbine High School in Colorado. Mr. Elonis also maintained th a t his violent postings were p art of a fictitious, rap -artist persona done in p a rt for therapeutic reasons.

He was charged under a general federal crimi­

Ariz. Officials Squaring Off On K-12 Issues CONTINUED FROM PAGE 15

she relish es th e conflict th a t’s now in co u rt. “I t ’s so m e th in g t h a t she r e a lly w o u ld h a v e lik e d to h a v e avoided altogether,” he said.

H e n o te d t h a t le g isla to rs could have resolved the question of author­ ity over state board staff, but declined to approve a bill addressing the issue.

The tu g of w ar between th e super­ inten d en t and other state officials is in some respects a political battle, but it also has the potential to affect key policy issues, including th e one th a t propelled Ms. Douglas’ campaign.

Ms. Douglas an d h e r allies w ere fru stra ted in th e ir common-core op­ position after law m akers rejected a bill to repeal th e common core th is year. In A pril, however, th e s ta te board did agree to create a commit­ tee including Ms. Douglas, members of the business community, and edu­ cation officials th a t will review th e common core. (This followed a r e ­ q u est to do so from Gov. Ducey.) Its

nal statute against making threats. His lawyers sought a ju ry instruction th a t would have re­ quired proof th a t he intended to communicate tru e th rea ts to his targets. B ut th e trial judge instead held th a t Mr. Elonis could be convicted if a “reasonable person” would have perceived his communications as threatening.

He was convicted on four counts and sentenced to nearly four years in prison, a sentence he has served.

High School Threats

W riting for six other mem bers of th e court, Chief Justice Jo h n G. Roberts Jr., said th a t it was not enough to prove th a t reasonable people would feel threatened by a statement.

“Such a “reasonable person’ standard is ... in­ consistent with the conventional requirement for criminal conduct—awareness of some wrongdo­ ing,” the chief justice said.

Justices Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan joined his opinion.

Though he concurred w ith the outcome, J u s ­ tice Samuel A. Alito Jr. said in a n opinion th a t the majority failed to provide enough guidance to lower courts in threat cases.

Justice Clarence Thomas filed a dissent, say­ ing he would have upheld the subjective-intent standard.

“There is nothing absurd about punishing an individual who, w ith knowledge of th e words he uses and their ordinary meaning in context, makes a th reat,” Justice Thomas said. “For in­ stance, a high school student who sends a letter to his principal statin g th a t he will m assacre his classm ates w ith a machine gun, even if he intended the letter as a joke, cannot fairly be de­ scribed as engaging in innocent conduct.”

F ra n k D. LoMonte, th e executive director of th e S tu d e n t P re s s Law C e n te r in W ash­ ington, said th e court’s decision was “narrow ” an d cautious.”

“It would have been much better if the court had grappled with the constitutional issues, be­

cause we are clearly in need of more guidance” on F irst Amendment protection for potentially threatening Internet speech, Mr. LoMonte said. The s p l c h ad filed a friend-of-the-court b rief in support of Mr. Elonis, arguing th a t students and other young people who are prolific users of social media often are unaware of how far their speech will travel in cyberspace and how it will be perceived.

“O ur concern is for the kid who makes a fee­ ble attem pt a t humor about how he wishes his school would blow up on the day of his calculus final,” Mr. LoMonte said. “T hat student certainly doesn’t belong in federal prison, and I think the world is a little safer for th a t student today after Elonis.”

A ‘Straightforward’ Rule

In the head-scarf case, the justices ruled 8-1 to revive the religious-discrimination suit filed by Sam antha Elauf, who had ju s t graduated from high school in 2008 when she sought a job a t an Abercrombie store a t a Tulsa, Okla., mall.

Ms. Elauf interviewed for the job and received generally high marks. B ut th e store manager, w ho p resu m ed Ms. E la u f w as M uslim an d wore the scarf for religious reasons, consulted a higher-ranking manager, who said the head scarf would violate th e chain’s “look policy,” which barred any head coverings by store employees, and thus Ms. E lauf could not be hired. (The re­ tailer has softened its policy since then and made clear th a t Muslim head scarves are permissible.)

A federal d istric t court g ran te d sum m ary judgm ent to the EEOC, which had taken up Ms. E la u f s discrimination complaint. After a trial over damages, a jury awarded her $20,000.

The U.S. Court of Appeals for the 10th Circuit, in Denver, threw out th e suit, concluding th a t Title VII of the Civil Rights Act of 1974 does not bar a n employer from taking action against an applicant or employee based on a religious prac­ tice unless the employer received explicit, verbal notice of the religious conflict.

Writing for the Supreme Court majority, Ju s­

tice Scalia said th a t to prevail in a religious-bias claim, a job applicant need only show th a t his or h er need for an accommodation was a motivat­ ing factor in the employer’s decision, not th a t the employer had knowledge of the need.

“The rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in em ployment decisions,” Justice Scalia said.

His opinion was joined by Chief Justice Rob­ erts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.

Justice Alito concurred in the judgment. Ju s­ tice Thomas dissented, saying th a t Abercrombie was merely applying its n eu tral policy against h ea d wear, not in te n tio n ally discrim in atin g based on religion.

Lisa Soronen, th e executive director of th e S tate and Local Legal Center, based in Wash­ ington, said the ruling was a disappointment to employers, including those in th e public sector such as school districts whose interests the cen­ te r represented in a friend-of-the-court brief on Abercrombie’s side.

“I think it is still unclear after this ruling how far an employer has to go to find out w hether an employee needs a religious accommodation,” she said. “Employers would have liked more clarity out of this opinion.”

Jen ifer Wicks, th e litigation director of th e Council on A m erican -Islam ic R e la tio n s in W ashington, said th e court’s decision “sends th e m essage th a t M uslim women practicing th e ir relig io n is so m e th in g t h a t h a s to be accommodated.”

The group had filed a friend-of-the-court brief on Ms. E la u f s side th a t discussed abuse th a t some M uslim girls have faced in schools for wearing a hijab. While the legal principles of the case apply to employment, Ms. Wicks said, “this decision is one th e schools can use to discuss these issues.”

With the suit revived, the case now goes back to the 10th Circuit court for reconsideration.

recommendations will be released by the end of the 2015-16 school year.

Asked if Ms. Douglas was worried th a t h e r legal fight w ith th e s ta te board would h a m strin g h e r efforts to roll back th e common core as the state undertakes its review, Mr. Tack replied th a t she was “willing to work w ith th e board” d u ring th e process. A lth o u g h sh e w ould p re fe r s ta n ­ dard s oth er th a n th e common core, h er focus now is to gradually improve the standards so th a t teachers aren’t unduly disrupted, he added.

B u t Mr. M iller, th e s ta te b o ard president, stressed th a t a consistent lack of collaboration betw een Ms. Douglas and the board on a variety of policy issues, such as Arizona’s move to change its A-F school accountabil­ ity system, was hindering the state’s K-12 work.

R e fe rrin g to h is p e rs o n a l r e la ­ tio n s h ip w ith Ms. D o u g las , Mr. M iller, w ho b e g a n s e rv in g on th e b o a rd in 2010, h e s a id , “T h e r e ’s been no conversation.”

H e added th a t he hoped an d ex­ pected Ms. Douglas would stick to “her issues with the actual standards th e m se lv es” w hile serv in g on th e common-core-review panel.

A spokesman for Gov. Ducey, Dan­ iel Scarpinato, dismissed th e notion of a big rift between th e superinten­

d en t and th e governor, saying they have a good relationship and adding th a t th e conflict “is really betw een the superintendent and the board at this point.”

Money Questions

Ms. Douglas an d Mr. Ducey also disagree about the n atu re and pace of changes to school spending.

L a s t m o n t h , t h e g o v e r n o r launched th e Classrooms F irs t Ini­ tia tiv e Council charged w ith over­ h a u lin g school fin an ce to “e n s u re more funding for teachers and class­ rooms and instruction.” Ms. Douglas, Gov. Ducey, an d Mr. Miller, am ong others, will all serve on th e council.

Yet la s t w eek Ms. D ouglas in d i­ cated th a t she th o u g h t th e group’s December deadline for filing its final recommendations is too soon to come up w ith truly meaningful changes to K-12 funding.

S ep arately , m e d iatio n is u n d e r­ way between th e s ta te an d various education groups about th e ex ten t to w h ic h th e s t a t e w ill p ro v id e schools ad d itio n a l m oney for p re ­ vious y e a rs of u n d erfu n d in g . The sta te Suprem e Court ruled in 2013 th a t during th e economic recession, A rizo n a h a d failed to ab id e by a 2000 b allo t in itiativ e approved by

voters th a t requires school funding to be ad ju ste d a n n u a lly b ased on th e ra te of inflation.

For fiscal 2016 th e s ta te , w hich is r a n k e d 4 8 th am o n g s ta t e s in per-p u p il sp en d in g according to a recent U.S. Census report, provided $74 m illion e a rm a rk e d for a n in ­ flatio n ary in crease. B u t Mr. Ogle of th e a d m in is tra to rs ’ association c h a ra c te riz e d it as a “p as siv e ac­ know ledgem ent w ithout correcting

th e p a s t in d iscretio n s.” L a s t year, legislative an aly sts estim a ted th a t th e to ta l “b a c k p ay ” fig u re owed by th e s ta te could be a s h ig h as $ 1 .2 b i ll io n f ro m f i s c a l 2 0 1 5 th ro u g h fiscal 2019.

However, la s t w eek, Gov. Ducey introduced a plan to increase school sp e n d in g by $2.2 b illion over th e next decade w ithout a ta x increase by b o o stin g th e s h a re o f fu n d in g schools receive from state-trust land.

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