NAACP Request to Ban Confederate Flag in Orange County Schools at Variance with Constitutional Standards

The Raleigh News and Observer has recently reported that the Northern Orange County NAACP has again asked the Orange County (North Carolina) Schools Board of Education to ban the Confederate flag. According to the article (http://bit.ly/2lMFgMe)) NAACP President Patricia Clayton recently sent a letter to both the Orange County school board as well as Superintendent Todd Wirt, requesting that the school district ban the flag on school grounds.  According to the article, Clayton rationalized the NAACP’s request on the basis that the “. . . flag is a racially inflammatory symbol, which is undeniably rooted in slavery and racism" and further added that "[g]iven OCS’ commitment to serve all students, the district should not allow the Confederate flag on its campuses.”

This is the second time the Northern Orange County NAACP has made such a request.  On the previous occasion, school officials demurred to the request, citing instead district policies already in place which prohibit  student appearance or clothing that is “. . . deemed disruptive, provocative, indecent, vulgar, or obscene, or if it endangers the health or safety of the student or others.”

Notwithstanding the strong symbolic content of images of the Confederate Battle Flag which may be unsetting to some, First Amendment issues clearly complicate the manner of response made to the NAACP by the Orange County School system.  While it is true that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), it is also true that students do not "shed their constitutional rights to the freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988); Barr v. Lafon, 538 F.3d 554, 562 (6th Cir. 2008). Generally, school campuses are not public forums where the full protection of the First Amendment applies. Instead, schools are able to limit students' rights to free speech due to the special characteristics of the school environment where an appropriate learning environment must be maintained. It is important to note, however, that student speech may only be limited when on balance, the student interest in free speech is outweighed by a compelling governmental interest in maintaining discipline and preserving the learning environment necessary to accomplish the school's educational mission." Barr at 562. Usually this burden of proof requires a tangible demonstration that a particular form of speech is actually impeding discipline or disrupting the learning environment or would reasonably lead to such a situation. See DeFoe v. Spiva, 650 F. Supp. 2d 811, 819 (E.D. Tenn. 2009).

At present, the Northern Orange County NAACP has not made such an evidentiary showing. Moreover, it believes it does not have to do so. According to the News and Observer report, the organization is opposed to having to demonstrate that the flag disrupts the learning environment in as much as it “sidesteps” community concerns about the Confederate flag. As quoted in the article, the NAACP has taken the position that the Confederate Flag is “ . . .symptomatic of racial and cultural bias in the district, which is inextricably tied to the persistent underperformance of African American children.”

The NAACP's position in seeking to ban the Confederate Flag without evidence of its presence being either disruptive or a hindrance to Orange County Schools educational mission ignores the importance our Constitution places on the toleration of divergent viewpoints, whether those viewpoints be religious or political, high philosophy or just plain non-sense. Upholding this core value, our courts have consistently placed the strictest scrutiny on government actions which seeks abridge free speech, even when that speech was most unpopular. Applied to the school room, this scrutiny has upheld a student's right to do a great many unpopular things, including the right to protest the Vietnam War which the NAACP no doubt would have supported at the time.

The NAACP’s position,  while certainly raising some worthy points, nonetheless should be reconsidered by not only Patricia Clayton but by the NAACP as a whole. Does the NAACP really wish to suspend particular speech because it betrays attitudes that may be viewed as hostile? If so, the NAACP is asking the Orange County School Board to impose a policy that is analogous to an Orwellian ban on thought crime, where it matters not what the speech does as much as whether  that expression betrays an impurity of thought which might lead to otherwise undesirable consequences.

 

New Extended Foster Care Judicial Review Legislation Fails to Extend Subject Matter Jurisdiction to District Courts

 

While any effort to extend resources to young adults who have been in foster care is welcome, it seems that North Carolina's efforts to extend foster care to 18-21 year olds has run into a bit of a snag. The problem is that North Carolina General Statute §7B-910.1, which provides for judicial review of such foster care agreements, cannot be implemented by county departments of social services because judicial review is not authorized pursuant to North Carolina General Statutes §7B-200 and §7B-201.

The subject matter jurisdiction of the North Carolina District Courts to hear matters pertaining to juveniles is set forth in North Carolina General Statute §7B-200. The statute sets forth generally subject matter authority “. . . over any case involving a juvenile who is alleged to be abused, neglected, or dependent.” N.C. Gen. Stat. §7B-200.  A juvenile is defined by the North Carolina Juvenile Code as “. . .a person who has not reached the person’s eighteenth birthday and who is not married, emancipated, or a member of the Armed Forces of the United States. N.C. Gen Stat. §7B-101(14).  In addition to the authority generally conferred upon the district courts in North Carolina over juvenile, North Carolina General Statute §7B-200 also provides for subject matter jurisdiction in the following circumstances:

1. Proceedings under the Interstate Compact on the Placement of Children ;
2. Proceedings involving judicial consent for emergency surgical or medical treatment of a juvenile in the absence of parental or guardian granted authority;
3. Emancipation proceedings;
4. Proceedings to terminate parental rights;
5. Proceedings for the reinstatement of parental rights;
6. Proceedings to review the placement of a juvenile in foster care pursuant to an agreement between the juvenile’s parents or guardian and a county department of social services;
7. Obstruction petitions;
8. Proceedings involving consent for an abortion on an un-emancipated minor;
9. Proceedings by an underage party seeking judicial authority to marry;
10. Petitions for judicial review of a director’s determination that an individual should be named to the Responsible Individual List.

The North Carolina Department of Health and Services has authorized, effective January 1, 2017, county departments of social services to “extend foster care services to an individual who has reached age 18 and desires to remain in foster care. Memorandum, North Carolina Administrative Office of the Courts, Extended Foster Care for Young Adults Ages 18-21 (January 19, 2017).  For those who fall within the age parameters, this authorization allows a county department of social services to allow foster care placement until the age of 21 years of age provided that the individual is (1) completing secondary education or a program leading to an equivalent credential; (2) enrolled in an institution that provides postsecondary or vocational education; (3) participating in a program or activity designed to promote, or remove barriers to employment; (4)  employed for at least 80 hours per month; or (5) incapable of completing the afore-mentioned educational or employment requirements due to a medical condition or disability . Id.  As part of the process of extending foster care for individuals who meet the requirements of participation, the North Carolina Legislature has implemented North Carolina General Statute 7B-910.1 which requires the district court to review placement agreements extending foster care services to young adults. N.C. Gen. Stat. §7B-910.1. The procedure for judicial review consists of requiring the county department of social services that is extending foster care to a young adult to calendar a hearing before the district court not more than 90 days from the date the agreement was executed. Id. At the judicial review hearing, the district court is tasked with making the following determinations:

1. Whether the placement is in the best interests of the young adult in foster care;
2. The services that have ben or should be provided to the young adult in foster care to improve the placement;
3. The services that have been or should be provided to the young adult in foster care to further the young adult’s educational or vocational ambitions, if relevant.N.C. Gen. Stat. §7B-910.1 (a)(1-3). Further review hearings are authorized by statute upon the written request of either the county department of social services or the young adult to allow the court to “. . . monitor the placement and progress toward the young adult’s educational or vocational ambitions.” N.C. Gen. Stat. §7B-910.1(b).

North Carolina General Statute §7B-200 specifically enumerates those actions involving juveniles that the legislature has authorized the North Carolina district courts to hear. While there is an abundance of matters that the legislature has authorized the district courts to hear, the legislature has specifically not authorized any judicial oversight in matters pertaining to young adults who have reached the age of 18 years of age. Id. In addition, the North Carolina Legislature has specifically limited judicial authority in abuse, neglect, and dependency actions to individuals who have not yet reached the age of 18 years of age. See N.C. Gen. Stat. §7B-201; In re K.C.G., 171 N.C. App. 488 (N.C. Ct. App. 2005). Where there is no legislative authorization provided to a court to exercise subject matter jurisdiction, the court is powerless to act and any order rendered in such a matter is null and void on its face. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005); In re Ivey, 156 N.C. App. 398 (N.C. Ct. App. 2003).

 

As the North Carolina District Courts lack subject matter jurisdiction to review extended foster care placements, a county agency, while permitted to extend to young adults such agreements, have no basis for requesting judicial review at this time. County departments of social services should therefore refrain from calendaring review of extended foster care placements until such time as the North Carolina Legislature amends North Carolina General Statute §7B-910.1 to permit review of extended foster care agreements of individuals 18-21 years of age, and amends North Carolina General Statute §7B-201 to extend the court’s jurisdiction in extended foster care matters to the age of 21.