First Amendment Story Archives - West Virginia Public Broadcasting

Lawsuit Claims Morgantown Panhandling Ordinance Unconstitutional

A lawsuit filed in federal court Monday argues Morgantown’s ordinance against panhandling is unconstitutional.

Legal nonprofit Mountain State Justice filed the suit in the Northern District of West Virginia on behalf of Anthony Rowand, who has been cited by police at least seven times in the past year for violating a city ordinance against soliciting donations from people traveling in vehicles.

Lesley Nash, staff attorney for Mountain State Justice, said they are arguing the city’s ordinance violates Rowand’s First Amendment rights.

“There have been numerous cases from just about every Circuit Court of Appeals in the country, as well as the Supreme Court, that have held that it is unconstitutional to put content-based restrictions on speech,” she said. “Because this ordinance in Morgantown specifically targets speech that solicits charity, that is a content-based restriction on speech, and we believe it is facially unconstitutional.”

Nash said the ordinance was first passed in 2005, but was sparsely enforced prior to an increase of citations starting in the summer of 2023. In a press release, Mountain State Justice said a “homelessness crisis” has led to “government efforts to shame, drive out, and ticket, fine and arrest our neighbors for experiencing poverty and illness in public.”

“At its heart, this case is not about being unhoused or people who are affected by homelessness, it is about the First Amendment right to free speech,” Nash said. “Soliciting charity is an act of free speech.”

Nash said the goal of the suit is to see the ordinance not be enforced and preferably removed from the books entirely. She said the court process could take several months, but the next step is for Morgantown to be formally notified of the suit and submit a response.

Cabell County School Board Agrees To Implement Freedom Of Religion Training For Staff

The Cabell County Board of Education has settled a lawsuit in an out-of-court agreement with four families who sued over violations of religious freedom.

In February 2022 two teachers escorted their entire homeroom classes to a sermon by revivalist Nic Walker at the school. They later denied requests by some students to leave. The event was hosted by the Fellowship of Christian Athletes and attendance was supposed to be on a voluntary basis.

In a video recorded by one of the students who was forced to attend the sermon, Walker preached about being punished by God, the importance of meeting God before you die, and asked students to know Jesus.

“You will sit there in that place, apart from God,” Walker said in the video. “And you will remember this service, you’ll remember this moment, you’ll remember this opportunity, where you had this chance, you had to get right. And you’ll be tormented with this memory. Over and over, and over, and over, and it never ends, like it’s eternity.”

The Cabell County Board of Education agreed to make significant changes in policy that would prevent future First Amendment violations. Subsequently the board announced that it will be mandating religious freedom training for staff. The school also implemented stronger specifications in its policy.

“The Board of Education has adopted an additional policy which provides for further training to board of education employees to remind them that the board of education and its employees must remain neutral as it pertains to issues of religion, prayer and religious worship. The board of education has implemented the foregoing policy to safeguard against the occurrence of similar instances in the future,” Ashley Stephens from the Cabell County Schools said in an emailed statement.

The families were represented by the nonprofit organization the Freedom From Religion Foundation. Attorney Patrick Elliot represented the families in the suit. He said that while the school had written policies in place, the school system had a widespread practice of allowing these types of things to happen. This was not the first time a religious event had taken place at the school.

“I think the good news is, you know, because of how egregious this was, I think people paid attention, and said we can’t allow this in our school,” Elliot said. “I think that was a huge benefit to trying to stop it before it was going into all schools in the state.”

He said he believes that this new training paired with the schools already sufficient written policies will protect this from happening again.

“So the way to do that is obviously to make sure that all employees are aware of legally what is required of them when they’re working in their role. And so they can’t, you know, kind of get out of that by saying, ‘Oh, I didn’t know’ or ‘it wasn’t clear to me what the school’s policies were’,”

The district’s insurers paid nearly $175,000 in the lawsuit for the plaintiffs attorney fees and $4 to the families. The Freedom From Religion Foundation gave each student plaintiff a $2,000 scholarship.

KCS Sued By School Counselor For Rights Violations

A school guidance counselor from Belle has sued the Kanawha County Board of Education and Superintendent Thomas F. Williams alleging the defendants violated her first amendment rights.

Chelena McCoy filed a complaint through her attorney in Kanawha Circuit Court asking for injunctive relief and damages for violation of her first amendment rights along with her protection from retaliatory and discriminatory actions under the West Virginia Whistleblower law.

The complaint stems from temporary policy changes around the West Virginia General Summative Assessment (WVGSA), also known as annual standardized tests. The U.S. Department of Education requires a 95 percent test participation rate from students.

In 2020, these tests were canceled due to the pandemic. In 2021, the school system again required the test and the USDOE allowed a waiver from the 95 percent participation rate and instructed the county to offer various safe testing options for students.

According to the complaint, parents of students who chose to have their students learn remotely during the pandemic became concerned about sending their students into the school for the test, but they had not been informed of their rights to ask for safe testing alternatives.

McCoy asked to notify these parents of their options, but according to the lawsuit “Danielle Burke, Belle’s Principal, and Jon Duffy, Director of Counseling and Testing informed McCoy that she could not do so. Duffy said it was their policy not to preemptively share the availability of testing alternatives for fear it could lower test participation rates, not just that year, but also in future years when accountability standards are reinstated.”

McCoy then reached out to the news media to get the information out. WCHS-TV ran a story on the issue on April 19, 2021 with “interviews with McCoy and Duffy. In the story, Duffy conceded that children were not required to take the test.”

On April 27, 2021, McCoy received a formal letter of reprimand for allegedly providing inaccurate information to the news media.

McCoy-Letter-of-Reprimand Download

According to the lawsuit, “McCoy was later informed by the Board that the letter of reprimand would go into the Board’s personnel file, the letter would follow her within and outside the Kanawha County Schools, including school systems in other states, and that McCoy could face further disciplinary action if there were future infractions.

“The letter of reprimand was also requested by both licensing agencies for school counselors, the West Virginia Department of Education and the National Board of Certified Counselors. Both licensing agencies also requested that McCoy explain in writing her shortcomings and failures as it related to the receipt of the reprimand received by Kanawha County Schools.”

In a brief email, Williams declined to comment on the lawsuit.

Through her attorney Hoyt Glazer, McCoy issued the following statement:

“My case is about the public’s right to complete and truthful information and the right of teachers and school counselors to be honest; it is about a school counselor’s ethical obligation to protect the public when a school board opts to place it’s narrow self-interest above the public welfare by suppressing information that the public has a right to know; it is about the right of public employees to be free from harassment, abuse, and retaliation for sharing factual information that the board may deem unflattering or harmful to them; and it is about basic democratic principles such as free speech and the government’s obligation to serve the people and not itself.”

Public Hearing To Focus On Government, Religious Freedoms

The law would establish a judicial test if a complainant said a government action, with a few compelling exceptions, would substantially burden a person’s exercise of religion.

A public hearing is set for Friday on a bill “relating to forbidding government limitations on the exercise of religion.” The contentious proposal failed in 2016.

Del. Jonathan Pinson, R-Mason, is the lead sponsor of House Bill 3042 called the Religious Freedom Restoration Act. The law would establish a judicial test if a complainant said a government action, with a few compelling exceptions, would substantially burden a person’s exercise of religion.

Pinson used the example of a Mennonite legally compelled to place an orange rather than a white slow moving vehicle sign on the back of a horse and buggy.

“A white reflective placard is just as effective at warning motorists of a slow moving vehicle as a bright orange one. Orange is not against my religion, I don’t have a conviction against it,” Pinson said. “But there are religious minorities that do have a conviction against it. So the long story short, the Religious Freedom Restoration Act is to protect religious minorities and to protect religious conviction.”

Del. Joey Garcia, D-Marion, is among those lawmakers saying religious freedom is already guaranteed by the First Amendment, and has concerns that the bill would nullify anti-discrimination protections enacted by West Virginia municipalities.

“It could strike down any law that we already have on the books based on somebody saying that it interferes with their religion,” Garcia said. “However, it’s not necessarily religious activities. It’s in the daily things that we do. It’s whether somebody can get a job, whether somebody can get housing. There’s a lot of situations where there may be discrimination and I think that this is a type of bill that can be used to allow a group of people to discriminate against someone else and use religion as an excuse for that.”

Pinson said the federal government passed a Religious Freedom Restoration Act in 1993 and since then, 31 states have enacted a form of the act, either in code or by judicial edict. He said the law has not been used to thwart local anti-discrimination protections.

Garcia said he knew of several situations where anti-discrimination problems with the law did come into play.

West Virginia’s Religious Freedom Restoration Act was advanced by the House Judiciary Committee to the House floor.

The Judiciary Committee will host a public hearing on HB 3042 from 4 to 5 p.m. Friday, Feb. 24 in the House chamber. Sign-ups to speak will begin at 3:30 p.m. in the chamber.

Judge Denies Injunction To Halt W.Va. Senate From Restricting Gallery Recordings

The question of whether the state Senate can restrict recording of meetings is still open after a court hearing on Thursday.

Kanawha Circuit Judge Carrie Webster refused to issue an injunction against the Senate that would have limited its authority to control chamber proceedings.

When Tiffani Morgan Walton tried to video record a heated July 29th Senate debate on the abortion bill from the gallery, she was threatened with arrest by the Capitol Police.

The ACLU of West Virginia filed legal actions, on Walton’s behalf, in state and federal courts against the West Virginia Senate, Senate President Craig Blair and the Capitol Police. They requested an injunction from Webster claiming the move violated their client’s first amendment rights and was a violation of an open meeting “sunshine” law, the West Virginia Open Governmental Meeting Act.

An attorney in the case said the act did not apply directly to the Senate or the House of Delegates. The attorney said the law applies to boards and committees, but not to the full Senate or House.

“The Senate has the power to control its galleries,” Senate attorney Michael Hissam said in court.

The attorney said Webster noted that language in the act shows the legislature may have exempted itself from the law.

Senate President Craig Blair said it’s his understanding that the rules on recording restriction options are the same for the U.S. House and Senate. He said the gallery rules on recording are posted and there’s full transparency.

“We are not trying to keep anybody from being aware of what’s going on and I can prove it,” Blair said. “Everything is available online. it’s archived for historical purposes, you can see everything that takes place.”

However, Blair said with the subject matter of abortion being passionately debated on the Senate floor, the gallery became out of control, forcing him to clear the gallery and shut off all recording cameras.

“When I put the Senate in recess and had the sergeant arms clear the gallery, what you couldn’t see or hear was all the profanities being shouted from the galleries by these people,” Blair said. “It was an embarrassing moment and there may be recordings of that out there, I have no idea. But I’m pretty certain that the Senate recording system, whenever I put us into recess for 15 minutes, our cameras were turned off.”

Webster asked both sides to research if the open meetings law applies to the Senate, prepare new briefs and then return to court later in the fall.

W.Va. House Passes Religious Liberties in Schools Act

Following an incident in Mineral County last year, a bill to create a Religious Liberties in Schools Act has passed the West Virginia House of Delegates in a 76 to 22 vote and will move on to the state Senate for consideration.

House Bill 4069 would require local school districts to adopt a model policy, similar to the one recommended in the legislation with an objective of ensuring that schools aren’t discriminating against or sponsoring the expression of any particular religious viewpoint.

“By starting in the schools and making sure students know their civil rights matter at that age, this could make them the civil rights leaders of the future,” Del. Gary Howell, R-Mineral, said last Wednesday after the bill passed the House Education Committee. Howell is the bill’s lead sponsor.

He says the legislation was prompted by an event in October, when members of both football teams at a game in Frankfurt were photographed holding an impromptu prayer before the game.

The Freedom From Religion Foundation, a Wisconsin-based nonprofit advocating for the separation of church and state, wrote a letter criticizing the Mineral County school board for the incident.

“This was the students expressing their first amendment right, freedom of religion,” Howell said.

The bill stipulates that model policy should include “neutral criteria” for the selection of student speakers at school events. The bill recommends selecting students based on “positions of honor,” such as student council officers or football team captains.

Many of the delegates who spoke against the bill are Democrats on the House Education committee that considered the bill last week. They argued this criteria interferes with local control.

“The Legislature does not need to be telling our county school systems who can speak at graduations, who cannot speak, [or] for how long,” Thompson, a teacher in Elkins, Randolph County, told other Delegates on Tuesday. “I just worry [that] we’re going to start getting into this weird area, where we’re not going to let students with disabilities or special needs speak … I don’t like that. I like letting the schools make that decision.”

The legislation also prohibits a student from including any remarks that are “obscene, vulgar, offensively lewd or indecent,” with all of these terms being defined according to a school district’s interpretation.

According to Del. Sean Hornbuckle, D-Cabell, this language isn’t specific enough.

“There’s nothing really detailing who is going to be the one to determine what would be offensive, lewd or anything like that,” Hornbuckle said during an interview on Friday.

Earlier last week, Hornbuckle proposed a couple amendments dealing with language and speaker requirements, both of which failed in the House Education Committee.

“I just think it’s a bad policy, because it also means that what Huntington High might deem as offensive, or lewd, let’s say Pendleton county might not,” Hornbuckle said. “So, there’s really no consistency there in the law across the state.”

Another thing the bill addresses is how a school should assess a student’s written, oral and artistic assignments. According to the bill, “students may express disagreement and offer opposing views regarding any issue based on religious beliefs.”

The bill was amended on Tuesday by request of Del. Mike Pushkin, D-Kanawha, to add that this provision does not excuse students from answering a question correctly just because the content “is counter to the religious beliefs of the student.”

Del. Jim Butler, R-Mason, disagreed with the amendment. He said on Monday he proposed changing the bill to include a similar provision, but one with the “acknowledgement that sometimes science is either wrong or it changes as circumstances change or evidence changes.”

A request from Del. Mick Bates, D-Raleigh, on Tuesday to send the bill to the House Judiciary Committee for a second opinion failed, despite arguments from the bill’s opponents that the first amendment already allows the freedom of religious expression in public places.

Although the event that inspired the legislation dealt Christians praying before a football game, Howell said last week his bill is meant to help students of all religions, minority or majority, by protecting them from discrimination.

When asked last Wednesday whether Howell supports other proposals dealing with discrimination — namely a bill in his committee to prevent discrimination based on hair type, or several bills to prohibit discrimination based on gender identity or sexual orientation — he said he had yet to read them.

Emily Allen is a Report for America corps member.