Professor Jordan Peterson contra Linfield College: Student Free Speech Rights in the Academic Setting

While the culture war headlines have focused on Ann Coulter and her headaches with the University of California-Berkley, a more significant development has erupted to the north on the campus of Linfield College, a small private liberal arts college in McMinnville, Oregon. Jordan Peterson, a University of Toronto professor of Psychology,  was recently disinvited from a previously arranged speaking arrangement by Linfield College Administration and the Student Government Association. Jordan has gained notoriety of late due to his opposition to the Canadian Governments Bill C-16 which proposes to amend the Canadian Criminal Code to extend the protection against "hate propaganda" to gender identity or expression, allowing the prosecution to set out evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression. In its dis-invitation, the Linfield Administration expressed concern that Jordan was fostering "intimidation" and the "threat of force" with his presence on campus, citing a tweet made by Jordan that he would be soon invading "safe spaces" on the campus. The event took place, nevertheless, at an off-campus venue, to great fanfare (.https://www.youtube.com/watch?v=gnQw01x6hs0) in the McMinnville Community.


Such issues as have dogged Coulter and Jordan raise questions about a student's right to hear controversial speakers or to otherwise engage in dialogue on subjects of controversy in an academic setting. The watershed case in this area of the law remains Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In that case, which involved symbolic speech where students sought to wear armbands in opposition to the Vietnam War, the Supreme Court held for the first time that the First Amendment definitively applied to the public school setting. As such, public schools that sought to limit constitutionally protected free speech would have to demonstrate compelling reasons that the schools restriction of student speech was caused by something more than a mere desire to "avoid the discomfort and unpleasantness that always accompany[ies] an unpopular viewpoint." To meet such a burden, the public school would have to demonstrate that the speech, if allowed to proceed unfettered would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."


Applied to the primary and secondary school setting, the courts have upheld a variety of restrictions that impose time, place and manner limitations on student expression where it could be shown that the speech activity materially would disrupt the functioning of or the safety of students within the school. See e.g., Taylor v. Roswell Indep. Sch. Dist, 713 F.3d 25 (10th Cir. N.M. 2013) Students' free speech challenges denied because the speech caused substantial disruption); Wiemerslage v. Maine Tp. High School Dist. 207, 29 F.3d 1149 (7th Cir. 1994) (Speech restrictions on student expression upheld where concerns about safety or property damage). However, such restrictions cannot normally be premised on the potential reaction of others to a planned free speech expression. See Zamecnik v. Indian Prairie School Dist. #204, 636 F.3d 874 (7th Cir. Ill. 2011) (restriction on student from wearing "Be Happy, Not Gay" t-shirt held improper absent evidence that attire would  provoke a substantial disruption at the school).


To date, the Supreme Court has not extended its student speech holdings to the college campus. A recent 9th Circuit case has found first amendment claims in a case involving California State-Fresno, which could give rise to a claim of a First Amendment relation claim. See O'Brien v. Welty, 818 F.3d 920 (9th Cir. Cal. 2016); See also Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 869 (9th Cir. Ariz. 2016) Moreover, it is important to note that private academic institutions are immune to First Amendment restrictions on censorship and may limit speech as the institution sees fit. This would seemingly be of significant importance when evaluating the free speech restrictions imposed by a private college campus such as Linfield College.


However, the analysis is not that simple.


Given the proclivity of many academic institutions to seek funding wherever they can get it, hardly any institution is completely financially independent of the state or federal government, particularly when it comes to the funding of student aid. As has been noted previously in this blog, the Obama Administration, using federal funding as a pretext, has sought to extend Title IX, the law setting forth gender equity requirements upon  schools receiving federal funding, to transgender students in such schools. If Title IX applies to schools banning gender discrimination on the basis of federal funding, then surely the First Amendment would apply to private schools that similarly receive federal funding. Linfield is such an institution in as much as it incorporates federally issued student loans as part of its overall financial aid commitment to students who attend Linfield College.


By deliberately denying student right of expression, either directly, or, as in the Linfield College case, indirectly by disinviting a speaker whose opinions might offend persons at the college or in the college community, private institutions of higher learning such as Linfield College do a disservice to their own core mission of fostering intellectual discourse. Less significantly but of importance is the additional concern that such censorship of free speech also runs the significant risk of inviting costly litigation that any college would be wise to avoid.

Juvenile Court, Parental Fitness, and Conferral of Custody to Third Parties: Why Parents May be Found Unfit at Adjudication

Before a child can be placed in the custody of a third-party non-parent, both North Carolina General Statute Chapter 7B and Chapter 50 require a finding of parental unfitness or a finding that a parent's actions have been inconsistent with their constitutionally guaranteed status as a parent. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972); Price v. Howard, 346 N.C. 68 (N.C. 1997). In the recent unpublished case of In re C.P.,__ N.C.App.__,
__S.E.2d__ (N.C. App. March 7, 2017), the Court of Appeals confronted this very issue where a trial court awarded custody of a minor in a juvenile case to a third party relative.


In its opinion affirming the trial court's order, the appellate court noted the trial court's findings that the mother had made some significant, if late breaking progress in her case correcting issues that led to the involvement of the Mecklenburg County Department of Youth and Family Services. Nevertheless, despite these findings, the trial  court concluded that the best interest of the juvenile would be served by conferral of custody upon a third party relative. Curiously, the Respondent Mother, whose custodial rights were further compromised  by conferral of custody to this third party, made no objection to the fact that the trial court failed to make an affirmative finding of unfitness or behavior inconsistent with the parent's protected status.  The Court of Appeals surely noted this and when the Respondent Mother raised this issue for the first time on appeal, the reviewing panel refused to consider the argument, noting merely that a parent who failed to object to a trial court's failure to make a determination of his or her constitutionally protected status waives that right if the parent does not raise the issue before the trial court. See In re T.P., 217 N.C. App.181, 186, 718 S.E.2d 716, 719 (2011).

But the fact remains that the trial court may not have had to make such a finding even if the issue had been raised.

Unlike in a North Carolina Chapter 50 case, a Chapter 7B case requires an adjudication of a child as being either abused, neglected, or dependent. While certainly an argument exists that the dependency of a child may have little to nothing to do with a culpable parent, the same cannot be said for neglect or abuse which at their heart require either tortious or criminal conduct (in the case of abuse) or conduct which either actively hostile to a child's well-being (i.e. failure to provide adequate case, supervision, or discipline) or passively so (i.e. creating an injurious environment). In either case, depending upon the parent's level of culpability, an adjudication or either abuse or neglect, could it would seem, amount to per se unfitness in the case of abuse or per se inconsistent behavior in the case of neglect.

Protection of the family unit is an absolute right guaranteed by the due process and equal protection clauses, a protection which will remain undisturbed "absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children[.]" Petersen v. Rogers, 37 N.C. 397, 445 S.E.2d 901 (1994).  "Th[is] protected liberty interest complements the responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child." Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003).  However, this presumption is erased where a parent "fails to shoulder the responsibilities that are attendant to rearing a child." Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997). 

As the Supreme Court noted in Owenby, a finding under any of the provisions in section 7B-1111 will result in a parent "forfeit[ing] his or her constitutionally protected status." Owenby, 357 N.C. at 145, 529 S.E.2d at 267. When the protection of the parental presumption is lost, the trial court may then ask the lower threshold question of what is the "best interest of the child." Id. at 146, 579 S.E.2d at 267. A court making a finding that abuse or neglect has transpired affecting a child as it is defined by North Carolina General Statute 7B-101, invokes the  same definitions that inform the grounds for termination found at North Carolina 7B-1001, the same grounds the North Carolina Supreme Court has clearly held lead to a forfeiture of parental rights.

With all the above having been said, consider this: the legislature has recently provided an immediate ability to cease reunification efforts following adjudication pursuant to North Carolina General Statute 7B-901 (e.g., sexual abuse, chronic physical or emotional abuse, torture, abandonment, chronic or toxic exposure to alcohol or controlled substances). Given the holding of Owenby and these new statutes which deeply impact a parent's ability to work a DSS case plan or take make any effort to reunify with their child, a strong case exists to suggest that a judicial finding that 7B-901 factors of abuse or neglect exist in a case is tantamount to a finding of parental unfitness or parental actions inconsistent with  constitutionally protected parental status. Thus, the C.P. trial court's failure to find unfitness may have been fatal if the issue had been raised by the parent on the trial level, it may not always be so in cases where the neglect or abuse is of a more elevated and profound character.  

N.C. Senate Bill 594: Social Service Delivery Reform at Devasting Cost to County Authority and Budgets

The newly introduced Family/ Child Protection and Accountability Act, Senate Bill 594, purports to bring sweeping reform to the North Carolina child welfare system. Citing North Carolina’s dismal performance in both state and federal audits, the bill seeks to reorganize county departments of social services by regionalizing the delivery of services and placing direction and authority over social services delivery in the hands of the State of North Carolina.  Introduced on April 4, 2017, the bill already has its advocates. Most notably, Michelle Hughes of the N.C. Child advocacy organization, claims among other things that North Carolina’s child welfare system is failing and that the proposed legislation will lead to “modernized case management”; provide “real-time data about children in foster care” and reduce social worker caseloads.  

The reality is somewhat different from what the bill’s sponsors and Ms. Hughes portray.

First, it should be noted that regionalization is one of the failed parlor tricks of the North Carolina General assembly, demonstrated most notably by the State’s regionalization of the mental health system in the past decade.  Starting initially in 2001 with the separation of mental health management from mental health service provision, the State later embraced the consolidation of metal health management into regional Local Mental Health Entities (LME’s) through the use of the Medicaid 1915 (b)(c) Waiver Program. The results of this consolidation were devastating to many counties within the State where service provision diminished, the spectrum of services available to mental health clients diminished, and the overall quality of services being provided diminished.

Second, the current legislation, embracing E.F. Schumaker’s “small is beautiful” mantra, regionalizes by consolidating 100 current county based social service agencies into 30 regional agencies. Considering that most social services spending in counties has millions of dollars of impact, taking away this influx of cash from the economies of 2/3 of the counties surely will do much to stunt economic growth at a time when the economy is just starting once again to fill county coffers.

Third, while Senate Bill 594 gives lip service to local service provision and preserving existing judicial districts where legal action is necessary, the bill is sparse when it comes to the details. Exactly how does a regional entity provide localized services to populations who frequently don’t have basic transportation?  This question remains unanswered as does the question of how a regional agency can effectively carry out its necessary child welfare, child support and adult protective services legal functions when its territory takes  in multiple judicial districts.

Most problematic of all is Senate Bill 594’s seeming inability to recognize the root of the problem of social services delivery in North Carolina. As any educator knows, a student’s academic failure cannot necessary be solved by merely blaming the student. Certainly some of the blame does accrue to the student. However, questions must also be asked about the standards used to measure the student’s performance as well as the methodology used by the instructor to teach the student.

Senate Bill 594 dispenses with such inquiries and assumes without argument,that the problem must be with the counties. But isn’t the State of North Carolina somewhat to blame as well? And could it be possible that the federal audit failure was the result of an instrument that was designed to lead to failure?

Such questions must be asked before the legislature rushes headlong to pass a measure which will divest the counties of their statutory authority over social services delivery, and takes away a major source of their income.

Endrew F. v. Douglas County School District RE-1: Supreme Court Rejects 10th Circuit's More Than De Minimis IEP Benefits Interpretation

Whether a child has been integrated fully into a classroom setting or not, the Supreme Court has recently determined that a child under an Individualized Education Plan (IEP) required under the Individuals with Disabilities Education Act of 1990 (IDEA) must receive a education that is tailored to a child’s unique needs and seeks to enable the child to make educational progress appropriate in light of the child’s particular circumstances. The Court's opinion in Endrew F. v. Douglas County School District RE-1, 580 U.S. __ (2017), clarifies  an earlier decision by the High Court in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley,  458 U. S. 176 (1982), held that an IEP need only be "reasonably calculated to enable the child to receive educational benefits." This Rowley standard lent itself to a great deal of uncertainty as evidenced by the earlier decision, where the 10th Circuits held that the Rowley standard, when applied to a child not integrated fully in a classroom, could be satisfied by a demonstration of merely more than de minimis educational progress. See Endrew F. v. Douglas County School District RE-1, 798 F. 3d 1329, 1336 (CA10 2015). Vacating and remanding the 10th Circuit's decision, the Supreme Court emphasized that while the IDEA cannot promise any particular educational outcome, it must nevertheless enable the child to achieve a higher educational outcome that is appropriate to the child's particular life circumstances. Concretely, this means that a disabled child under an IEP who is integrated in a classroom should be equipped to progress through the curriculum just like other children in the classroom. For a child who is not able to be integrated into the classroom, the child's IEP need not aim for grade-level advancement but must nonetheless provide an  educational program must "appropriately ambitious in light of [the child's] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."

In re J.T: Court Reports Alone Are Not Substantive Evidence

If it has been said before, it has been said over a two or more times by the North Carolina Court of Appeals: DSS and GAL court reports can do a lot of things but without more, they cannot be the principle basis by which a court acts, whether it is conducting an adjudication, a disposition, a review or permanency planning hearing. Back in 2004, the Court of Appeals reviewed a disastrous case, In re D.L., which in principal consisted of a district court judge engaging in a protracted argument with a Respondent Mother In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004).


As arguments with judges typically do, this one ended badly for the respondent: the judge ended the hearing by receiving the DSS report into evidence and then proceeded to enter an order, without affording the DSS to supplement the report with additional testimony. The Court of Appeals reversed, noting that the trial court's findings of fact were based only on court reports, prior orders and the argument of counsel, none of which qualified standing alone as competent substantive evidence. A largely indistinguishable situation again resulted in the reversal in 2010 with the case of  In re D.Y., 202 N.C. App. 140, 688 S.E.2d 91 (2010).


The most recent incarnation of these facts has arisen out of Orange County (In re. J.T. COA 16-774) (February 21, 2017) where, as before, no oral testimony was received, not even a social worker to take the stand and adopt the DSS report into testimony, nor stipulations of all the parties that might have provided a basis for the court to receive the report as substantive evidence. In addition, the district court, which sought to terminate reunification efforts, failed to follow the statutory requirements found at N.C. Gen. Stat. §§ 7B-906.1 and 906.2 (2015) cease such reunification efforts. As a result, the district court's order was vacated and remanded.


The moral of the story remains the same: in every hearing where all parties do not stipulate to set and necessary facts, there must be oral testimony to support the court's adoption of particular facts (which coincidentally happen to appear in a DSS and/or GAL court report). This standard is satisfied even when a competent witness (i.e. social worker or GAL volunteer) takes the stand, and merely adopts the contents of their court report in full into their testimony. To do otherwise is to court reversal or in the alternative, the Court of Appeals vacating the order of the district court and remanding the same.

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.