Education Week - June 10, 2015 - 19

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 accommodation-that 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 Elonis, a Pennsylvania man whose postings on Facebook included talk of shooting up a kindergarten
class. But the majority stopped short of making
any broad First Amendment rulings about Internet threats.
Meanwhile, in a separate case being watched
by educators, Equal Employment Opportunity
Commission v. Abercrombie & Fitch Stores Inc.
(No. 14-86), the court bolstered religious protections for employees by ruling for a young
Muslim woman who was denied a job at a
clothing retailer because she wore a hijab, or
head scarf.
Both rulings, however, had some advocates
saying they had hoped for more clarity from
the high court on how the rulings should be applied by those seeking to make decisions in these
contentious areas. The Elonis ruling involved a
27-year-old amusement-park employee in 2010
who was experiencing difficulties with his wife
and his job when he began posting violent material on Facebook, including: "Enough elementary
schools in a 10-mile radius to initiate the most
heinous school shooting ever imagined. And hell
hath no fury like a crazy man in a kindergarten
class. The only question is ... which one?"
Mr. Elonis testified in court that the posting
was a reference to the song, "I'm Back," by the
rap artist Eminem, in which the artist had criticized his ex-wife and fantasized about participating in the 1999 shootings at Columbine High
School in Colorado. Mr. Elonis also maintained
that his violent postings were part of a fictitious,
rap-artist persona done in part for therapeutic
reasons.
He was charged under a general federal crimi-

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

she relishes the conflict that's now
in court. "It's something that she
really would have liked to have
avoided altogether," he said.
He noted that legislators could
have resolved the question of authority over state board staff, but declined
to approve a bill addressing the issue.
The tug of war between the superintendent and other state officials is
in some respects a political battle, but
it also has the potential to affect key
policy issues, including the one that
propelled Ms. Douglas' campaign.
Ms. Douglas and her allies were
frustrated in their common-core opposition after lawmakers rejected a
bill to repeal the common core this
year. In April, however, the state
board did agree to create a committee including Ms. Douglas, members
of the business community, and education officials that will review the
common core. (This followed a request to do so from Gov. Ducey.) Its

nal statute against making threats. His lawyers
sought a jury instruction that would have required proof that he intended to communicate
true threats to his targets. But the trial judge
instead held that 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
Writing for six other members of the court,
Chief Justice John G. Roberts Jr., said that it
was not enough to prove that reasonable people
would feel threatened by a statement.
"Such a 'reasonable person' standard is ... inconsistent with the conventional requirement for
criminal conduct-awareness of some wrongdoing," 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 with the outcome, Justice Samuel A. Alito Jr. said in an opinion that
the majority failed to provide enough guidance
to lower courts in threat cases.
Justice Clarence Thomas filed a dissent, saying he would have upheld the subjective-intent
standard.
"There is nothing absurd about punishing an
individual who, with knowledge of the words
he uses and their ordinary meaning in context,
makes a threat," Justice Thomas said. "For instance, a high school student who sends a letter
to his principal stating that he will massacre
his classmates with a machine gun, even if he
intended the letter as a joke, cannot fairly be described as engaging in innocent conduct."
Frank D. LoMonte, the executive director
of the Student Press Law Center in Washington, said the court's decision was "narrow"
and cautious."
"It would have been much better if the court
had grappled with the constitutional issues, be-

recommendations will be released by
the end of the 2015-16 school year.
Asked if Ms. Douglas was worried
that her legal fight with the state
board would hamstring her efforts
to roll back the common core as the
state undertakes its review, Mr. Tack
replied that she was "willing to work
with the board" during the process.
Although she would prefer standards other than the common core,
her focus now is to gradually improve
the standards so that teachers aren't
unduly disrupted, he added.
But Mr. Miller, the state board
president, stressed that a consistent
lack of collaboration between Ms.
Douglas and the board on a variety of
policy issues, such as Arizona's move
to change its A-F school accountability system, was hindering the state's
K-12 work.
Referring to his personal relationship with Ms. Douglas, Mr.
Miller, who began serving on the
board in 2010, he said, "There's
been no conversation."
He added that he hoped and expected Ms. Douglas would stick to
"her issues with the actual standards
themselves" while serving on the
common-core-review panel.
A spokesman for Gov. Ducey, Daniel Scarpinato, dismissed the notion
of a big rift between the superinten-

cause we are clearly in need of more guidance"
on First Amendment protection for potentially
threatening Internet speech, Mr. LoMonte said.
The splc had filed a friend-of-the-court brief
in support of Mr. Elonis, arguing that 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.
"Our concern is for the kid who makes a feeble attempt at humor about how he wishes his
school would blow up on the day of his calculus
final," Mr. LoMonte said. "That student certainly
doesn't belong in federal prison, and I think the
world is a little safer for that 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
Samantha Elauf, who had just graduated from
high school in 2008 when she sought a job at an
Abercrombie store at a Tulsa, Okla., mall.
Ms. Elauf interviewed for the job and received
generally high marks. But the store manager,
who presumed Ms. Elauf was Muslim and
wore the scarf for religious reasons, consulted a
higher-ranking manager, who said the head scarf
would violate the chain's "look policy," which
barred any head coverings by store employees,
and thus Ms. Elauf could not be hired. (The retailer has softened its policy since then and made
clear that Muslim head scarves are permissible.)
A federal district court granted summary
judgment to the eeoc, which had taken up Ms.
Elauf'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 the suit, concluding that
Title VII of the Civil Rights Act of 1974 does not
bar an employer from taking action against an
applicant or employee based on a religious practice unless the employer received explicit, verbal
notice of the religious conflict.
Writing for the Supreme Court majority, Jus-

dent and the governor, saying they
have a good relationship and adding
that the conflict "is really between
the superintendent and the board at
this point."

Money Questions
Ms. Douglas and Mr. Ducey also
disagree about the nature and pace
of changes to school spending.
Last month, the governor
launched the Classrooms First Initiative Council charged with overhauling school finance to "ensure
more funding for teachers and classrooms and instruction." Ms. Douglas,
Gov. Ducey, and Mr. Miller, among
others, will all serve on the council.
Yet last week Ms. Douglas indicated that she thought the group's
December deadline for filing its final
recommendations is too soon to come
up with truly meaningful changes to
K-12 funding.
Separately, mediation is underway between the state and various
education groups about the extent
to which the state will provide
schools additional money for previous years of underfunding. The
state Supreme Court ruled in 2013
that during the economic recession,
Arizona had failed to abide by a
2000 ballot initiative approved by

tice Scalia said that to prevail in a religious-bias
claim, a job applicant need only show that his or
her need for an accommodation was a motivating factor in the employer's decision, not that 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 employment decisions,"
Justice Scalia said.
His opinion was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer,
Sotomayor, and Kagan.
Justice Alito concurred in the judgment. Justice Thomas dissented, saying that Abercrombie
was merely applying its neutral policy against
head wear, not intentionally discriminating
based on religion.
Lisa Soronen, the executive director of the
State and Local Legal Center, based in Washington, said the ruling was a disappointment to
employers, including those in the public sector
such as school districts whose interests the center 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 whether an
employee needs a religious accommodation," she
said. "Employers would have liked more clarity
out of this opinion."
Jenifer Wicks, the litigation director of the
Council on American-Islamic Relations in
Washington, said the court's decision "sends
the message that Muslim women practicing
their religion is something that has to be
accommodated."
The group had filed a friend-of-the-court brief
on Ms. Elauf's side that discussed abuse that
some Muslim 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 the schools can use to discuss
these issues."
With the suit revived, the case now goes back
to the 10th Circuit court for reconsideration.

voters that requires school funding
to be adjusted annually based on
the rate of inflation.
For fiscal 2016 the state, which
is ranked 48th among states in
per-pupil spending according to a
recent U.S. Census report, provided
$74 million earmarked for an inflationary increase. But Mr. Ogle
of the administrators' association
characterized it as a "passive acknowledgement without correcting

the past indiscretions." Last year,
legislative analysts estimated that
the total "back pay" figure owed
by the state could be as high as
$1.2 billion from fiscal 2015
through fiscal 2019.
However, last week, Gov. Ducey
introduced a plan to increase school
spending by $2.2 billion over the
next decade without a tax increase
by boosting the share of funding
schools receive from state-trust land.

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