School Bus Driver Claims First Amendment Right to Display Confederate Flag
A school district in Oregon that contracts with a private company to provide student transportation services asked the company to stop a school bus driver it employed from displaying the Confederate flag, overprinted with the word "redneck," on his truck while parked at a district-owned bus yard leased by the contractor. The case sheds light on how much control a school district has over employees of private companies with which it contracts for services.
The superintendent made the request because he was concerned that the flag sent a potentially disruptive and racially divisive message to students who attended a school program located in a district building adjacent to the bus yard. The district had a history of racial incidents and gang activity that sensitized the superintendent to the symbolic messages a Confederate flag can convey. The school district's anti-harassment policy prohibits jokes, stories, pictures, or objects that are offensive, tend to alarm, annoy, abuse, or demean certain protected individuals or groups in district schools and facilities.
Although the contractor had not previously disciplined its driver for displaying his flag, it reacted to the superintendent's request by asking the driver to remove or conceal the flag while his truck was parked on the lot. The driver refused and instead asked the employer for its policy prohibiting the display, which it did not have. Instead, the school district provided its anti-harassment policy to the contractor. Based on the district's policy, the contractor temporarily suspended the driver. After eventually asking the driver three times to refrain from displaying the Confederate flag on district-owned property, the contractor fired him.
The bus driver then sued his former employer, the school district, and the superintendent for depriving him of his First Amendment rights of freedom of speech and expression and for violating the tort claims provisions of the Oregon state constitution. They, in turn, moved for summary judgment against the plaintiff.
The bus driver's lawsuit depends on his ability to show that his employer's actions were taken under "color of state law." This means that his employer -- a private contractor -- was a "state actor" when it disciplined and fired him. To prove that his employer violated his constitutional rights under color of state law, the driver must show that there was a "close nexus" between the state (as represented by the school district and superintendent), his employer, and the challenged conduct. The Supreme Court has defined four tests for determining whether a private entity's actions amount to state action: (1) public function; (2) compulsion; (3) joint action; and (4) governmental nexus.
In considering whether the bus driver satisfied any of these tests, the district court magistrate judge concluded that material questions of fact exist as to whether the school district and superintendent coerced the contractor to terminate the bus driver and whether the contractor and the school district were joint actors in the driver's termination. Therefore, the judge ruled, the court cannot properly resolve by summary judgment the legal issue of whether the contractor acted under color of state law when it fired the driver.
Another set of tests applies to the question of whether the school district, as a public employer, violated the bus driver's constitutional rights. These tests, articulated by the Ninth Circuit in the sequentialPickering analysis, include whether the driver intended for the flag to express a public message, whether he spoke as a private citizen or a public employee, and whether the driver's protected speech was a substantial or motivating factor in the adverse employment action. The judge concluded that the bus driver satisfied each step of thePickering analysis, and therefore, the defendants' motion for summary judgment on the bus driver's claims should be denied.
The magistrate judge also ruled that the superintendent is not entitled to qualified immunity for the bus driver's First Amendment claim. According to the court, the superintendent could not have believed that he could lawfully demand that the bus driver remove his flag or that he could enforce the school district's anti-harassment policy against the driver, a private employee, either directly or through the contractor.
As for the bus driver's claim under state law, the magistrate relied on the Eleventh Amendment to the Constitution, which bars citizens from bringing suit in federal court against a state unless that immunity is waived by the state or abrogated by Congress. Therefore, the judge recommended dismissal of the bus driver's second claim.
The overall result is that the bus driver will have an opportunity to argue in court that the school district, the superintendent, and his employer violated his constitutionally protected right to free speech and expression when they worked together to prevent him from displaying the Confederate flag on his truck.
Student Loan Debt Burden for "Noncompleters"
Student loan burden is especially heavy for those who do not obtain a postsecondary credential within 6 years of enrolling. Some relevant facts derived from 2009 postsecondary educational data:
· The percentage of "noncompleters" is highest for students in public 2-year colleges and private for-profit institutions.
· The cumulative amount borrowed per credit earned was highest for noncompleters who attended for-profit institutions ($350 per credit).
· The median cumulative federal student debt for all noncompleters was 35% of their annual income.
-- National Center for Education Statistics
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