First thing to note, without reading the plaintiffs' complaint, but inferred from coverage, the speech issue is grounded on the Minnesota Constitution Bill of Rights, rather than (possibly in addition to) U.S. Constitution, First Amendment.
That seems prudent, given the turkeys on the U.S. Supreme Court and the comparative higher quality of Minnesota Supreme Court Justices, and that the general principle is that a State can be more protective of an individual right than the federal standard might be. Dodging biased chaotic ill-restrained rabid idiots seems prudent, and beyond that, Education is a local issue, primarily.
Moreover, there is Minnesota Constitution, Art.XIII, Sect. 1 which might have reach to the issues of the contested Becker School Board Policy 471. (online reporting has been remiss in discussing the item with a word or two excerpted, but without giving the above link to the full text). Art.XIII, Sect.1 states :
Section 1. Uniform system of public schools.
The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.
While likely ancillary, the provision does want uniformity, Policy 471 being an exceptional provision unique to Becker schools, and the intent of public education is to promote a survival of a stable republican form of government via "intelligence of the people," so that "a thorough and efficient system of public schools [exists] throughout the state."
It could be argued that Policy 471 intrudes upon promoting "intelligence of the people" should discovery in the litigation uncover a hidden intent to squelch teaching of CRT, in a multi-page guise of equitable treatment being required, person to person, in Becker schools That could be a factor.
Even if there is found to be no material intent to stymie CRT as a classroom topic, as likely or unlikely as that may be, there nonetheless is a question of whether the policy's constraints generally work against "intelligence of the people" as well as the separate question of whether it is Constitutionally infirm as an unlawful constraint of speech.
Furthermore, the Policy is six pages long, not something shorter and crystal clear, as if saying, "Any teacher teaching CRT can be fired for that, and likely would," which would be easier to contest based on specificity, whereas the longer item might be open to contesting on "void for vagueness" elasticity grounds; over wording detail, where it could be overturned as written only to be tightened up and reimposed with more careful language. Presumably the plaintiffs and defendant(s) would prefer a more lasting determination, for one side or the other.
With all that as a prelude, MPR, e.g., has posted Friday, Aug. 19:
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Further online coverage: SC Times; CBS Minnesota; MPR (Aug 2); Strib (Aug 2); Strib(lawsuit coverage); Education MN (press release); websearch.
The EdMN press release begins:
ST. PAUL, Minnesota. Aug. 18, 2022 – A sweeping policy of prior-restraint against the speech of its staff has prompted a lawsuit against the Becker Public School District by the union representing its teachers.
So the matter is framed as prior restraint, and the Policy 471 text runs together coverage upon students and staff; i.e., there is no independent teacher conduct provision. Moreover, the policy states:
II. GENERAL STATEMENT OF POLICY
[...] Classrooms, hallways and all other Becker Campus locations during school hours are to remain a positive learning atmosphere that are [sic] respectful, fair and equitable for everyone at all times. Classrooms must be free of any personal bias or *non-school materials* favoring any particular group, *political ideology,* favored class or promoting controversial issues. Grandstanding by students, staff and employees will not be permitted.
There are two interesting dimensions. Curbing non-school materials can be argued by the board as aimed at uniformity - using school materials - per the earlier cited Constitutional provision. Curbing personal bias favoring any political ideology makes the issue inclusive of prior restraint of political speech or expression. In particular controversial political speech is curtailed. (Note, however the Policy's definition's section embraces a specialized meaning for "controversial issues" apart from the common meanings one might attach.)
Presumably, a student wearing a tee shirt emblazoned, "Fuck Socialism. Capitalism Rocks," would or could be punished for being in contravention of Policy 471.
Policy Sect. V, clause 8 reads:
8. Individuals found in violation of this policy can expect disciplinary action up to and including suspension, termination, or discharge.
A teacher wearing a tee shirt saying "Fuck Capitalism, Socialism Rocks," could be fired. On the spot. Security will escort you to your automobile. Right to a hearing is not specified in Policy 471; but there might be contract language or another Board policy on point.
The policy was passed without any implementation process, due process procedures or hearing rights, explicitly delineated beyond:
VI. IMPLEMENTATION/NOTICE OF POLICY
The Superintendent is hereby directed by the School Board to immediately enact all necessary administrative procedures, necessary definitions, directives, and/or district rules to implement, enforce and effectuate the intent of this policy. A written copy of the Superintendent’s Administrative procedures, directives and/or district rules will be provided to all school board members.
The Superintendent is also charged with the responsibility to track and document each incident where this adopted board policy has not been consistently applied, enforced and/or has been violated and to report such deficiencies to the School Board. The Superintendent is further required to report to the board in writing specifically "why" the adopted board policy was not enforced and what specific actions were taken by the Superintendent to immediately address any deficiencies noted in the Superintendent’s report.
School board members will get enforcement procedural detail. No provision is made for comparable "implementation" notice to faculty (unless buried elsewhere than in the enforcement clause). Ditto for student/parent notice.
Clause VI is followed by an extensive list of "Legal references," stuff readers could easter egg hunt, with one notable item, "Policy 403 (Discipline, Suspension, and Dismissal of School District Employees). There is no explicit stated mandate that Superintendent "Implementation" be consistent with Policy 403; yet that arguably is implicit.
Courts in Constitutional challenges to statutes and regulations often will read provisions in a way which may limit a provision but will save it in the limited way as Constitutional.
However, Policy 471 is such a thing that it would be unfair to expect a judge to wrestle with it in all its glory to fashion a limited way it would be Constitutional, unless holding it to be Constitutional, as written, no divining of things needed.
Defendant(s) could challenge standing and argue a rational analysis rather than strict scrutiny should apply.
However, prior restraint of political speech where a job loss could result from such speech suggests litigating things now meets standing concerns, especially if vagueness argument is also offered. Presumably the Constitutional basis for objection likely will result in a strict scrutiny analysis. But judge shopping might tip the scale one way or the other on technical modes of dispute.
Presume the case is not rejected as unripe for litigation now on standing grounds, there not being a specific plaintiff already injured in some way by Policy 471 being enforced; and let the strict scrutiny question vs rational basis issue hang; it is fun to speculate on boundaries.
The tee shirt saying "Rolling Stones" should be okay under the full text of Policy 471. But what of one saying, "Grateful Dead. Ship of Fools?" It touts a song; but might school authorities discern an intent to criticize or ridicule the board or administrators over Policy 471, implicit though not explicit ridicule, and exact some Draconian or light punishment per enforcement/implementation vagueness of Policy 471?
That is an interesting hypothetical.
The gut level guess of Crabgrass? It would take a special judge to not throw out Policy 471, ditto for a special panel of appellate judges. The guess is EdMN and ACLU will prevail. The further guess, the Board, if losing, will not give up and will author and pass a replacement text, more tightly written, (but however narrow or broad, it will impede CRT being taught in the Becker schools).
Guesswork can always prove wrong. The Board faces the question of how much tax spending on litigation voters will tolerate, as well as the question of how popular in the district Policy 471 stands.
That's anybody's guess.
________UPDATE_______
Ripeness and standing - The EdMN press release (final paragraph) seems to have anticipated presenting an actual plaintiff harmed by a chilling effect, two actually, as representative plaintiffs:
The co-presidents of the Becker Education Association, Jason Baune and Ben Pany, had no additional comment about the lawsuit because any such comment to the news media might reflect negatively on the district. Such a comment to the news media is currently prohibited and could expose the staff members to disciplinary action.
________FURTHER UPDATE_________
To clear confusion, it appears the ACLU and Education Minnesota lawsuit is aimed against TWO things, with Policy 471 being one. Finding things clearly from online reporting has been a challenge for Crabgrass.
The ACLU in a letter dated July 29 objected to passage of Policy 471. In Education Minnesota's Press Release dated Aug. 18, objection was raised to a Becker Schools communication plan, the EdMN item stating:
The lawsuit claims a communications plan approved by the Becker school board May 2 violates the free speech provision of the state constitution and several state laws. The lawsuit asks the court to prevent the district from enforcing the policy against its staff.
To the best of Crabgrass understanding this second item, along with Policy 471 is at issue in the instigated litigation. No copy of a Plaintiffs' Compliant has been located by Crabgrass online which would fully confirm issues raised.
The contested communications plan is online HERE. It appears to have a separate history to Policy 471, yet arguably overlapping.
LGBTQ issues are intermixed. A Strib image re Becker Schools and that dimension.
Policy 471 proposing banning all flags except Old Glory would curtail display of the Gay Rights Rainbow flag, as well as a Somalia flag or an Israeli one. It is speculative but perhaps the flag thing is aimed less at the Union Jack, etc., than at the Rainbow flag. The LGBTQ dimension includes an anti-gay presentation objected to where two Board members subsequently resigned.
The contested communications plan online HERE states:
The mission of Becker Public Schools is to prepare self-directed learners to thrive in a changing global community.
[...] Key Components of the Plan
•To ensure compliance with data privacy laws and other legal considerations, employees may not make statements to the media, individuals, or entities outside the District relating to student or personnel matters. Inquiries regarding such matters must be directed to Directors and Building Administration. The Director of Community Education and Superintendent will oversee district communication and may also be used as a resource on specific inquiries.
•Communication must be tied to the goals, objectives, and emphasis of the school district mission statement.
•Key messaging should position Becker Public Schools as a collaborative, “community centered” school district that is committed to providing an exceptional education for all students
The language, "To ensure compliance with data privacy laws and other legal considerations, employees may not make statements to the media, individuals, or entities outside the District relating to student or personnel matters" surely states a prior restraint gag order. What beyond "student or personnel matters" goes on in a school? The language includes curriculum critiques, as "student matters," and Policy 471 commentary, which would relate to a student and personnel matter. The language does not state a process may follow improper communication, however it might be specified as proper or otherwise. It is a blanket, "may not" ban on everything.
In addition to the above referenced ACLU letter to the board, there is another letter online. Under signature of former Rep. Erin Maye Quade, Gender Justice, Advocacy Director, another letter was sent as reported/reproduced online, here, stating in part:
I am reaching out on behalf of Gender Justice regarding Policy 471. We have heard from concerned parents, teachers, and advocates that Policy 471 is a veiled attempt to censor LGBTQ students’ speech and expression. We are concerned and disappointed that the Becker School Board is once again promoting anti-LGBTQ policies. This policy would violate students’ First Amendment rights, the Minnesota Human Rights Act, and Title IX. We urge you to reject proposed Policy 471.
As we made clear in a letter on March 21, 2022, the Becker Public Schools school board has a legal obligation to protect and support LGBTQ students. Under the Minnesota Human Rights Act, schools have a duty to ensure that students are not subject to hostile environments in school on account of their sexual orientation, gender identity, gender expression, or transgender status. Further, the U.S. Department of Education’s Office for Civil Rights issued a notice of interpretation that confirms that Title IX protects students from discrimination based on sexual orientation and gender identity, and is subject to enforcement.
When it comes to protecting the health, safety, and well-being of marginalized youth in your school district, there are no “two-sides” to the question. Policy 471 defines a controversial issue as “an issue that is the subject of a public referendum which is being debated by political candidates, groups, communities, committees, or organizations”. Even though some political candidates feel entitled to dispute the rights of LGBTQ people, and turn basic human rights into a political debate, your students are human beings, not “political issues.” Our state and federal laws are clear: it is nonnegotiable that schools must uphold and protect the rights of LGBTQ students.
If the Becker Public Schools continue down this path of failing to prevent discrimination against LGBTQ students, you are putting yourselves at risk for legal action. As we need not remind you, the Anoka-Hennepin school district was sued for discrimination and for violating the constitutional rights of students. [...]
So, Education Minnesota, ACLU, and Gender Justice oppose Policy 471 and the communications policy in various combinations and under varying stated grounds for objection. It appears Gender Justice is not a litigation party. Whether Board members are individually named as defendants in the Complaint is unknown without seeing a copy of the item.
Hopefully this update helps understanding of readers.
GRUMPING CURMUDGEON: One of the several MSM outlets publishing online about the litigation might help readers immensely by posting the Complaint. It is a step expected of reasonable commercial media outlets; but is yet to be seen.
Indeed, from commercial media coverage it is not entirely clear whether EdMN and ACLU are suing in a joint compliant, or each suing separately, via separate complaints. Better detail might help better understanding.
FURTHER: It is unclear whether a notice of representation or a responsive pleading to the complaint(s) has been filed at this time.
FURTHER: Incorrect references to the Policy 471 herein as 741 were noted and corrected.
FURTHER: Thanks to a Los Angeles outlet, the 16 page teachers' union Complaint is online. (NO THANKS TO STRIB). ACLU is not a listed plaintiff, suggesting their Complaint is separate. Or that they have not actually filed. The online item from the union only challenges the communications policy, not Policy 471. It appears it might be the only lawsuit served, so far. The online item is signed and dated, but has no cause number, nor court receipt stamp. It might be pocket filed, having been served but not filed at the time the press outlet posted it.
Bring Me The News posts online, here (Aug. 19) and here (Aug. 4), should help readers understand things. As of Aug. 19 reporting was:
The same union is also considering legal action against another proposed policy in Becker that seeks to restrict students from learning the history of racism and LGBTQ-related topics within the district.
The policy, the proposal of which was criticized, states that classrooms would need to be free of any "personal bias" or materials "favoring any particular group, political ideology, favored class or promoting controversial issues."
This comes amid a wider push from right-wing activists nationwide to restrict the teaching of and access to materials relating to race, sex, and LGBTQ+ people.
After the policy was proposed, the ACLU of Minnesota and Education Minnesota each sent the district a letter, stating the policy interferes with the First Amendment.
The school board chose to delay the vote during a meeting held on Aug. 1, saying a legal review was needed to go forward. No meeting has been held since.
The Becker Public Schools District issued the following statement to Bring Me The News:
“We have been made aware of recent court filings in connection with a legal action challenging certain aspects of the School District’s new communication plan. We disagree with the claims and assertions being made in those filings, and believe the lawsuit misconstrues the purpose and effect of language in the School District’s plan. Because the judicial system is the more appropriate forum in which to address these issues, the School District will respond through the legal proceedings before the Court.”
So, ACLU has voiced issues but not filed any court action. And, Policy 471 presumably is being honed and tuned and cleaned up while tabled. Hopefully, we have seen the last of it. It could stay tabled forever.
"Will respond" in the final Aug. 19 paragraph means no responsive pleading has been filed. A response this soon after the union filed would not normally be expected. The released statement quoted in the final paragraph suggests a blanket denial will be the response.
The initial impression Crabgrass had was an action against Policy 471 had been filed. This is incorrect.
FURTHER: The same Los Angeles website posting the complaint also posted the ACLU letter:
https://www.losangelesblade.com/content/files/2022/07/ACLU-of-Minnesota-Letter-to-Becker-Schools.pdf
The ACLU letter references and the posting includes a data request. At three pages total it is a very tightly worded and worthwhile read.
Of interest, the ACLU letter references U.S. Constiution Bill of Rights Amenement 1. The union lawsuit, Count 1, p.7 et seq. is premised on Minnesota's Bill of Rights.
This has been previously commented upon in earlier paragraphs.
____________FURTHER UPDATE___________
Some really weird wording in the Becker board's proposed Policy 471 made this reader say, huh, that is really strange; I wonder what strange mind came up with that. It is within "Definitions":
E. “Inherently Divisive Concepts”: advancing any ideas in violation of Title IV and Title VI of the Civil Rights Act of 1964, as amended, including the following concepts: (i) one’s race, sex, or faith is inherently superior to another race, sex, or faith; (ii) an individual, by virtue of his or her race, sex, or faith, is inherently racist, sexist, or oppressive, whether consciously or subconsciously; (iii) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race, sex, or faith; (iv) members of one race, sex, or faith cannot and should not attempt to treat others as individuals without respect to race, sex, or faith; (v) an individual's moral character is inherently determined by his or her race, sex, or faith; (vi) an individual, by virtue of his or her race, sex, or faith, bears responsibility for actions committed in the past by other members of the same race, sex, or faith; and (vii) meritocracy or traits, such as a hard work ethic, are racist or sexist or were created by a particular race to oppress another race.
That is convoluted, overly wordy, and just more than would be needed to be clear.
Some "creative" but tortured mind wrote that, and it is stylistically different with other parts of the draft Policy 741, where clarity exists.
Answer. The new ultra conservative Virginia governer in January of this year issued one of several prompt executive orders, this one having the language:
For the purposes of this Executive order “inherently divisive concepts” means advancing any ideas in violation of Title IV and Title VI of the Civil Rights Act of 1964, including, but not limited to of the following concepts (i) one race, skin color, ethnicity, sex, or faith is inherently superior to another race, skin color, ethnicity, sex, or faith; (ii) an individual, by virtue of his or her race, skin color, ethnicity, sex or faith, is racist, sexist, or oppressive, whether consciously or subconsciously, (iii) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race, skin color, ethnicity, sex or faith, (iv) members of one race, ethnicity, sex or faith cannot and should not attempt to treat others as individuals without respect to race, sex or faith, (v) an individual's moral character is inherently determined by his or her race, skin color, ethnicity, sex, or faith, (vi) an individual, by virtue of his or her race, skin color, ethnicity, sex, or faith, bears responsibility for actions committed in the past by other members of the same race, ethnicity, sex or faith, (vii) meritocracy or traits, such as a hard work ethic, are racist or sexist or were created by a particular race to oppress another race.
Ape something stupid, look like a stupid ape. Just because some East Coast dogmatic politician with a wild hair wherever had a scrivener who would so scriven does not mean it is good scrivening. To the contrary, ich bin glaringly awful.
Fit to be tabled.
Just say, CRT es ist Verboten, Ja! It is a cleaner way. Keeping the conceptual elegance.
What this means, however The Becker Board thought it's policy helped rather than hindered recognition and fostering of the rights of LGTQ students, or otherwise; somebody inserted a CRT kill switch, using bad text to plagiarize. Some reporting has mentioned Youngkin, but absent detail of linguistic taking.
For readers wondering at the length and repeated updating to this post, the answer is that education is one of the most critical things a government mandates and implements. The future of the nation is the young in the schools. The world's future is the world's young. They have rights. They deserve respect. and kindness rather than political censorship in the guise of quelling "political indoctrination."
A school board that is negligent or wrongly beligerant in tuning the minds and rights of the young will reap what it sows.
We know what Youngkin is sowing; and it is against Virginia's best interests.