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Immediate Family Immigration

Individuals who are immediate family members of US citizens have immediate access to an immigrant visa in the United States once they have provided the bona fides of their relationship.  Immediate family members are the spouse, children, and parents of a US citizen.  A child under 21 and unmarried at the time of filing a petition is an immediate family member.

Extended Family Immigration

If the non-US citizen seeking an immigration benefit is not the spouse, child or parent of a US Citizen, the individual still may seek an immigration benefit provided he or she has a clearly defined relationship to the petitioning US citizen or lawful permanent resident.

Religious Worker Immigration

The Firm has substantial experience in handling the petitions of religious organizations to bring in ministers, monks, nuns, and professional and non-professional religious workers.  Lawful permanent resident status is available for defined classes of religious workers.

Canadian TN Visas

Canadians may present their credentials and an employment contract at the US port of entry and obtain TN status to enter and work in the United States in certain classifications.  The North American Free Trade Agreement (NAFTA), Appendix 1603.d.1, lists the types of professionals and the qualifications that are needed for TN status.

Inbound Investor Visas

Most countries with which the United States trades have treaties of freedom, commerce, and navigation.  These treaties provide that an inbound investor or an inbound marketer may qualify for an E-visa, which will permit them to reside in the United States for up to five years.  These visas are quite complex, and the application procedure is subject to “consular absolutism,” as we view this matter as immigration lawyers.

Naturalization

Given the increased enforcement of US laws that allow the removal of lawful permanent residents if they violate certain laws, US citizenship has become a much more important feature of our law practice.  Citizenship also confers a number of benefits, such as the ability to leave the US for a substantial period without seeking a returning resident visa.  Naturalization petitions are not complicated to prepare, and the procedure is relatively safe provided the individual has the appropriate background for an application.

The members of the Immigration Practice Group are John C. Newman, Matthew D. Getty, and Kim J. Miller, Paralegal.

Here at Kenlan, Schwiebert, Facey & Goss, P.C., we have attorneys with extensive experience in defending and advising individuals charged with DUI in both Vermont and New York. We maintain internal resources dedicated to the defense of DUI cases and have access to external research support services.   We follow a structured approach to analyzing, preparing and executing the defense of our clients.

We work to ensure your special-needs child receives the early intervention and special education services, and other related services, including occupational, physical and speech-related services, mental health services, language and autism services he or she may be entitled to under the Individuals with Disabilities Education Act, and Vermont’s Special Education Laws.    Our lawyers understand the interplay between education and public benefits and will assist you in accessing those services as well.

Our experienced attorneys will represent you or your disabled or elderly family member recover from financial exploitation, and assist you when a loved one needs a guardian.  When conflict cannot be resolved, we will assert your rights in probate and superior courts.

In his affidavit eighteen-year-old Joseph Frederick testified that after Principal Deborah Morse of Juneau-Douglas High School confiscated his banner reading, “BONG HiTS 4 JESUS,” he asked, “What happened to the Bill of Rights? This is our right to do this. It’s a free speech exercise.” She responded, “not here it’s not.” He later asked his assistant principal, “What about the Bill of Rights? Doesn’t that still exist?” Frederick claimed to have been told, “not until you graduate,” and “not in schools.”¹ Regardless of the veracity of Frederick’s testimony, these exchanges symbolize the underlying confrontation between the school officials’ interests and Frederick’s rights. As a legal adult facing state punishment for expressing an unpopular message, Frederick balked at the perceived denial of his freedom of speech. He believed that he had the right to express himself amongst his fellow students on a public sidewalk during the school day. Principal Morse and the administration, however, claimed to have the authority to censor him for promoting an opinion contrary to the mission of his school. This dilemma remained central as Frederick and the school fought their way to the Supreme Court, and this question reignited a national debate that unfortunately continues to fester in our nation’s schools and courts.

In Morse v. Frederick (2007), ² the US Supreme Court reexamined the subject of students’ voices in public schools for the first time since Hazelwood School District v. Kuhlmeier (1988).³ In their recent decision, the Court ruled in a 5-4 majority with five written opinions⁴ to support Principal Morse and further restrict student speech rights in America’s government-run educational institutions. The infamous “BONG HiTS 4 JESUS” case has now added a new caveat to the standard for proscription that many legal critics consider muddled and unnecessary. Rather than awarding qualified immunity without ruling on the constitutional issue, as Justice Breyer supported, the majority opinion allows schools to restrict speech that a reasonable person could interpret as the promotion of illegal drugs. Given the opaque language and divided majority, many scholars have noted that is unclear how the lower courts will interpret this decision.⁵ A few recent cases indicate that the majority’s imprecise logic in Morse will have many unexpected implications. The decision emerged as a misguided attempt to expand the powers of administrators without curtailing other forms of religious and political expression in schools. Rather than clarifying the law, the Court merely created an ambiguous exception to Tinker v. Des Moines.⁶ As Justice Breyer wrote in his partial concurrence this “unwise and unnecessary”⁷ ruling “raises a host of serious concerns”⁸ without providing clear and cogent guidance for lower courts, schools, and students.

Many essential questions thus remain unresolved in school settings. What forms of speech does the First Amendment protect? What limits must reasonable administrators respect while attempting to maintain decorum in their schools? What future exceptions will the Supreme Court carve from students’ existing speech rights? Left unresolved, these questions leave many students, school officials, and courts unsure how to proceed in the face of rising litigation.⁹ Indeed, similar situations to Frederick and Morse’s are likely to arise again between students and administrators as they attempt to navigate the difficult waters of student speech law.

The Original Precedent: Tinker

Student speech rights is a unique field of First Amendment law. Three cases prior to Morse v. Frederick, starting with Tinker v. Des Moines,¹⁰ laid out the concept that these rights are not coextensive with adult rights and that courts need to balance the completing interests of decorum and liberty. The Warren Court was the first to ‘discover’ the constitutional mandate to protect students from administrators’ prescriptions of political orthodoxy on campus. Tinker raised the question of whether students could wear black armbands in opposition to the Vietnam War. Prior to this ruling, school officials had an almost unlimited ability to regulate student expressions.¹¹ Political discussions in the Vietnam War era had a tendency to get heated, so teachers who wished to avoid controversy would go to great lengths to stifle speech that made them uncomfortable. The Court’s decision in support of the students’ symbolic protest affirmed that young people do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”¹² Students’ right to protests were akin to ‘pure speech’, which is granted the greatest protection by the First Amendment.¹³ This decision justifiably protected students who wished to display a non-disruptive political message.

The real question, however, was how far students’ speech rights paralleled those of adults. What allowed public educational institutions to restrict expressions that could not be proscribed outside schools? Tinker said that, given the “special characteristics of the school environment,”¹⁴ regulation of student expression was generally permissible only when the speech would (1) “materially and substantially disrupt the work and discipline of the school”¹⁵ or (2) “impinge upon the rights of others.”¹⁶ This two-pronged test made it substantially more difficult for public schools to punish students for espousing controversial viewpoints. There was no explicit requirement that student speech be political or of high value, and courts have read the second prong as only limiting speech with tortuous liability, such as slander.

As a result, students had much liberty. They could make a speech in front of an audience of their peers that could, under Tinker, deride the faculty, other students, or the mission of the school as long as they did not create a substantial disruption or violate any preexisting laws governing speech, such as those prohibitions on expressions that presented a clear and present danger to society or those that constitute libel, obscenity, or slander. The ruling also protected the student who presented an expository essay in English class with violent themes as long as it did not create a ‘substantial disruption.’

The Court placed the onus on the administration to show that it was not simply suppressing, “expressions of feelings with which they do not wish to contend.” ¹⁷ Justice Black’s dissent, however, warned that this decision effectively “surrender[ed] control of the American public school system to public school students.”¹⁸ His voice was prophetic of the apparent shift in the Court’s subsequent decisions.

Tinker Revisited

Seventeen years later the composition of the Court changed and so did the attitude towards student speech rights. Bethel School District v. Fraser¹⁹ added a caveat to the Tinker test with Chief Justice Burger ruling that schools could restrict non-obscene speech²⁰ if it was “offensively lewd and indecent.”²¹ The case involved a student who delivered a speech to a school assembly using sexual innuendo to endorse his friend for student government. Given that students were often a captive audience, the Court decided that schools could restrict speech that was incongruous with the “habits and manners of civility.”²² This ruling would apply to the proscription of speech in a cafeteria where students made lunch announcements as well as in an auditorium where debates were held. This case also mentioned that schools do not need to tolerate vulgar speech that “undermine[s] the school’s basic educational mission.” ²³ These words provided the basis for Principal Morse’s assertion that Tinker did not protect non-political speech that conflicted with a school’s mission.²⁴

The third case in this student speech trilogy was Hazelwood School District v. Kuhlmeier²⁵, in which Chief Justice Rehnquist’s Court ruled that administrators could censor the speech of students in a school newspaper if it was not, “by policy or by practice…[open] for indiscriminate use by… student organizations.”²⁶ Because the student newspaper was not a public forum, the school could restrict student expression because “the public might reasonably perceive [the student’s opinion] to bear the imprimatur of the school.”²⁷ The Court reasoned that teaching students how to use their voices appropriately in a public setting included showing them what is appropriate or inappropriate for publication.²⁸ This case arose in Morse when the Principal dubiously claimed that her failure to act would lend implicit support for Frederick’s “BONG HiTS 4 JESUS “ banner, and hence her actions were necessary to prevent the perception that drug advocacy bore the school’s imprimatur. Needless to say, the Court agreed in Morse with earlier holdings that the government’s mere failure to censor does not constitute their tacit support for a particular opinion.²⁹

Morse v. Frederick: Key Facts, the Path to the Court, and the Decision.

This Morse case presented a unique challenge to the courts for six particular reasons. First, Frederick did not enter school grounds prior to attending the Olympic Torch Relay where he displayed the banner and the event was not clearly in-school activity. ³⁰ This issue required the immediate attention of the courts. Second, Frederick’s banner did not pose a ‘substantial disruption’ as the courts had previously interpreted these words, and other students who went unpunished were engaged in much more physical mischief. ³¹ The third unique aspect of the case arose because of the banner’s ambiguous language. While Morse claimed that a reasonable person would interpret the message as the drug advocacy, this was by no means the only meaning of the vague phrase. ³² The fourth unique and less debated aspect of this case concerned the urgency of Morse’s decision when censoring the banner and punishing Frederick. While her censorship was made posthaste, the decision to suspend Frederick was made after she had ample time to reflect upon the legality of her actions. ³³ A fifth surprising attribute was the distinction between the banner and Frederick’s suspension.³⁴ While this issue was discussed in Justice Breyer’s partial concurrence, the Court largely avoided looking into the legitimacy of the individual infractions that justified Frederick’s suspension. The sixth and final unique aspect of the case arose because of the school’s unusual justification for the censorship and punishment. Had they defended themselves by claiming that the banner constituted a disruption, the case would not have progressed to the Supreme Court. Their unique interpretation of the law in defense of their anti-drug mission led to the ultimate conclusion.

Frederick initially lost in the district court on the basis that Fraser permitted schools to restrict speech that was inconsistent with their educational mission.³⁵ This logic, however, conflicted with the application of the cases as outlined by then Judge Samuel Alito in Saxe v. State College Area School District (2001). ³⁶ For any restriction to be permitted, Alito wrote, the speech must just be shown to be school supported (Kuhlmeier), lewd (Fraser), or disruptive (Tinker).³⁷ On this basis, Frederick won in the Ninth Circuit Court of Appeals, although that court did not award damages or explicitly deny qualified immunity.³⁸ The Ninth Circuit simply found that the banner constituted a form of protected speech and remanded the case to the district level.³⁹ Morse appealed to the Supreme Court with the help of Kenneth Starr, who stressed that the Circuit Court decision left principals personally liable for damages when attempting to maintain decorum and support an anti-drug message in their schools.⁴⁰

Such facts partially explain the outcome in the Supreme Court, but as the debate in the courts unfolded, the ACLU, religious organizations, LGBT organizations, and drug policy reform advocates forged an unlikely alliance behind Frederick, fearing a broad expansion of administrative powers. Some of their concerns arose from the fact that the condemned speech was off-campus, non-disruptive, and non-obscene. ⁴¹ These groups were worried that the widening of student speech restrictions would eventually encompass all forms of expression. Religious groups in particular feared that anti-homosexual and anti-abortion speech could be restricted. ⁴² None of the previous student speech cases explicitly allowed Morse to seize the banner because of its message, and free-speech advocates were concerned that schools would be given broad leeway in their censorship. ⁴³ Justice Thomas’s characteristically outlandish concurring opinion aimed to do exactly that by completely overturning Tinker and by denying the very concept of student rights. ⁴⁴ Whatever decision these amici supported, all the parties agreed that the Supreme Court should not act as the overseer of all matters of school discipline; administrators should be given some leeway to act with reasonable judgment to maintain decorum and fulfill their mission. ⁴⁵ How far their powers extended was debatable.

The majority’s opinion answered this question by establishing a new loophole in the Tinker standard: schools could now restrict speech that could reasonably be interpreted as advocating illegal drugs. ⁴⁶ In Roberts’s majority opinion, he abandoned his judicial philosophy of producing narrow, unanimous decisions, and forged a small majority to impose a content restriction on student speech. His controversial opinion created a special speech restriction because of the Court’s well-founded concern that, “drug abuse can cause severe and permanent damage to the health and well-being of young people.”⁴⁷ By justifying this restriction based on an expression’s potential harm, he opened the door for the censorship of many other forms of speech in schools.

Roberts did not join two opinions of other justices, Alito⁴⁸ and Breyer, who presented more viable alternatives that the majority could have adopted. Alito’s ruling was more explicitly narrow and acknowledged Stevens’ concern about setting a precedent for broader restrictions. Alito specified that he and Kennedy joined the majority as long as:

(a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’[49]

This more limited decision became the controlling opinion for lower courts to follow.⁵⁰

Roberts also chose not to endorse Breyer’s limited concurrence. Breyer supported simply overturning the lower court by granting qualified immunity to Morse and relying on the lower court to decide if the suspension was justified on non-speech grounds.⁵¹ This approach would sidestep the constitutional question completely and leave the Tinker standard intact. In hindsight, Breyer’s extremely narrow holding represented the best choice amongst the written opinions insofar as it did not muddle the waters in schools and lower courts.

Subsequent Lower Court Decisions: The Application of Morse may be Loud, but it Certainly is not Clear.

As students prepared to return to Montpelier High School, Principal Peter Evans was confronted with a nightmare: opening the first day of school with violent protesters in front of the school protesting Vermont’s first day of gay marriage.⁵² On August 19^th, 2009 protesters from the evangelical Westboro Baptist Church, called the Montpelier Police Office to provide notice of their intent to protest in front of the “pervert-run Montpelier High School.”⁵³ These particular protesters incite violence wherever they go, including their protests in 2004 at the funerals of fallen Massachusetts soldiers where they held signs reading, “Thank God for dead soldiers.”⁵⁴ They argued that God was getting revenge for the state’s recently enacted gay marriage law.⁵⁵ Evans, and most likely the school district’s attorneys, had to decide if students should be allowed to protest against the church members. If so, what was the extent of the students’ rights? In the midst of the protests, was the school expected to compare, following Justice Roberts’ logic, the potential harm of their students’ speech to the dangers of drug advocacy or apply Tinker’s substantial disruption test? After Morse, the question is still unclear for both school administrators and counsel advising them as a review of five post Morse decisions illustrates.

The first two cases, Ponce v. Socorro⁵⁶ and Boim v. Fulton County School Districts,⁵⁷concern physical threats in schools; the second two, Harper ex rel. Harper v. Poway Unified School District⁵⁸ and Nuxoll ex rel. Nuxoll v Indian Prairie School District No. 204⁵⁹ deal with potential psychological harm. These four cases found it necessary to ignore Alito’s stern demand that his opinion only permit restrictions on pro-drug speech in order to bend the law to conform with schools’ legitimate pedagogical demands.⁶⁰ The last case, Wisniewski v. Board of Education of Weedsport Central School District⁶¹ concerns Internet speech and cites Morse as a justification for limiting any expression that targets students, not just speech made on school grounds. Together these cases illustrate the continuing evolution of the law and how Morse is being misconstrued.

Ponce⁶² uses Morse as a means of sidestepping the more rigorous protections of Tinker when there are physical threats to the safety of students. Ponce involved a student’s private diary, in which the author invented a pseudo-Nazi group to carry out violence, including a Columbine-style attack on high schools.⁶³ Tinker has commonly been applied to cover all categories of speech, except those explicitly defined by Fraser and Hazelwood, and requires a school to reasonably forecast a disruption before imposing censorship. However, in cases of “speech that gravely and uniquely threatens violence, including massive deaths, to the school population as a whole” ⁶⁴ then the “Morse analysis is appropriate.”⁶⁵ Drawing on Alito’s opinion, the Ponce Court claimed “some harms are in fact so great in the school setting that requiring a school administrator to evaluate their disruptive potential is unnecessary.”⁶⁶ Given this shockingly liberal interpretation of Morse, Ponce “ripped the narrow concurring opinion of Justices Alito and Kennedy from its factual moorings and took it for a judicial joyride down a slippery slope of censorship.”⁶⁷ While it may have been necessary for the Circuit Court to expand schools’ powers to avoid a Columbine-style attack described in the private diary, Morse provides very tenuous support for this decision.

In Boim,⁶⁸ the Eleventh Circuit similarly held in a case, involving a confiscated private student notebook describing a student’s dream of killing her math teacher, that Morse legitimizes censorship on speech concerning violence. When reviewing Morse’s decision upholding restrictions on student expressions conflicting with a significant governmental interest, they found that “that same rationale applies equally, if not more strongly, to speech reasonably construed as a threat of school violence.”⁶⁹ In both cases, a violent message that revealed a student’s alleged state of mind led courts to uphold restrictions on speech because of the potential for harm that exceeded or was at least on par with the danger posed by Frederick’s banner.

Creative applications of Morse have not been restricted to physical threats. After the Supreme Court vacated and remanded⁷⁰ the Ninth Circuit’s ruling in Harper, on remand the district court held Morse applicable to psychologically harmful speech.⁷¹ Judge John Houston wrote that Morse,

affirms that school officials have a duty to protect students, as young as fourteen and fifteen years of age, from degrading acts or expressions that promote injury to the student’s physical, emotional or psychological well-being and development which, in turn, adversely impacts the school’s mission to educate them.[72]

While the previous cases addressed purely physical harms, Judge Houston interpreted Morse as supporting regulations on speech that causes ‘emotional’ or ‘psychological’ injuries.⁷³ The holding sweeps up any speech, “disparaging of, and emotionally and psychologically damaging to, homosexual students and students in the midst of developing their sexual orientation in a ninth through twelfth grade, public school setting.”⁷⁴ Such an expansive ruling certainly does not limit Alito’s opinion to illegal drugs but applies it to any type of potential harm.

Nuxoll⁷⁵ also concerned psychologically harmful speech. Judge Posner applied Morse’s permissive language to permit restrictions on “derogatory comments…that refer to race, ethnicity, religion, gender, sexual orientation, or disability.”⁷⁶ In doing so, he wrote:

Imagine the psychological effects if the plaintiff wore a T-shirt on which was written ‘blacks have lower IQs than whites’ or ‘a woman’s place is in the home.’ From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school–symptoms therefore of substantial disruption–the school can forbid the speech.[77]

In Nuxoll, the Court was willing to defer to schools whenever “[i]t seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way.”⁷⁸ Additionally, Judge Posner remanded the case to the District Court with instructions:

to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity.[79]

Although assigning constitutional rights to such a campaign denigrates the intention of the First Amendment, Posner’s conclusion required an astonishing broad reading of Alito’s opinion.

Given the uncertainly in the lower courts, almost any speech restriction seems possible at this juncture. In a humorous hypothetical foray, Clay Calvert, suggests imagining a t-shirt with the words, “Thin People Stink” on the front and “Eat Trans Fats” on the back.⁸⁰ Either the emotional or psychological harm on the front or potentially physical harm on the back could merit censorship.⁸¹ However, a court could also apply Tinker and find a political message worthy of greater protection.⁸² Regardless, this hypothetical illustrates the confusion currently confronting the courts. The central problem is the disagreement regarding how to interpret Morse. While the above decisions broadly interpreted Morse, other courts have restricted their interpretations to apply it only to cases regarding the advocacy of illegal drugs.⁸³

Lastly, there is also an indication that the lower courts are employing Morse to defend punishments for Internet speech written outside schools. Roberts’ majority opinion applied student speech standards in Morse because Frederick “directed his banner towards the school, making it plainly visible to most students.”⁸⁴ In Wisniewski⁸⁵ , the Second Circuit upheld “an eighth-grade student’s suspension for sharing with friends via the Internet a small drawing crudely, but clearly, suggesting that a named teacher should be shot and killed.”⁸⁶ Despite the fact that a police investigator and psychologist both concluded that the icon was meant as a joke and that the student posed no threat, the court gave great deference to the school regardless of whether the speech was produced on or off campus.⁸⁷ Just as Frederick’s banner was directed at students, the Second Circuit’s ruling allows for any speech that is aimed at students to be regulated by administrators. In response, Connecticut lawmakers have even gone so far as to propose legislation protecting students’ rights to offensive online speech.⁸⁸ While Justice Alito did not warn explicitly against this interpretation, it is unlikely that he fully considered the implications of his decision to online expressions.

As the number of cases brought before the courts continues to rise⁸⁹, one can imagine a future case arising in which a student wearing a t-shirt, or posting an online message, quoting President Obama: “I inhaled frequently, that was the point.” The back of the shirt might also state, “Honesty about smoking pot doesn’t prevent you from becoming President.” One possible reading of these messages is the advocacy of drug use; however, the message is also about social norms regarding illegal substances. The hypothetical expression could also be seen as commenting about the debate on decriminalizing marijuana use. Should schools be forbidden from restricting half of the hypothetical shirt but then have a pedagogical obligation to censor the advocacy of illegal substances? In the wake of Morse, specifically Justice Alito’s logic, courts could justify ruling both for the student or school. Such ambiguity in the law does a disservice to students, educators and all those who support America’s public schools.

Ronald Schildge is currently a teacher of history at Suffield Academy in Suffield, Connecticut. He is a 2003 graduate of Middlebury College (B.A. Independent Studies, cum laude), a 2005 Congressional James Madison Fellow, and a 2009 graduate of the Dartmouth College Masters in Liberal Studies Program (M.A.). He is married to Story Schildge Parker and they are expecting their first child this fall.

Michael A. Stahler is an associate at Kenlan, Schwiebert, Facey & Goss, P.C. in Rutland, Vermont. He is a 2003 graduate of Middlebury College (B.A. Cum laude, Political Science) and a 2008 graduate of the Vermont Law School (J.D. Cum laude). He is a member of the litigation practice group. Michael is engaged to Jennifer Wlodarski.

1

[2] Morse v. Frederick, 551 U.S. 393 (2007).

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

[4] Chief Justice Roberts delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito joined. Thomas filed a concurring opinion. Alito filed a concurring opinion, in which Kennedy joined. Breyer filed an opinion concurring in the judgment in part and dissenting in part. Stevens filed a dissenting opinion, in which Souter and Ginsburg joined.

[5] See Erwin Chemerinsky, How Will Morse v. Frederick Be Applied? 21 Lewis &Clark L. Rev. 1(2008).

[6] Tinker v. DesMoines, 393 U. S. 503 (1969).

[7] Morse, 551 U.S. at 425 (Breyer, J. concurring in part).

[8] Morse, 551 U.S. at 425, 426 (2007).

[9] Richard Arum and Dorert Preiss. Law and Disorder in the Classroom: Emphasis on student rights continues in classrooms even when the Court begins to think otherwise. Education Next, Fall 2009, at 58.

[10] 393 U. S. 503 (1969).

[11] While student rights existed, see e.g. West Virginia v. Barnette, 319 U. S. 624 (1943) (holding that students may not be compelled to salute the flag), Tinker introduced explicit protections for students’ speech.

[12] Tinker, 393 U. S. 503, 505 (1969).

[13]Id. at 505-506, 508.

[14]Id.

[15]Id. at 509.

[16]Id.

[17] Id. at 511 (citing Burnside v. Byars, 363 F.2d 744, 769 (5th Cir. 1966)). See also Id. at 509 (“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”).

[18] Id. at 526 (Black, J., dissenting).

[19] Bethel School District v. Fraser, 478 U.S. 675 (1986).

[20] Note that under existing Supreme Court precedent obscenity could be stifled outside of schools (See e.g. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)), and particularly for the protection of minors (see FCC v. Pacifica Foundation, 438 U. S. 726 (1978)).

[21] Fraser, 478 U.S. at 685 (1986).

[22] Id. at 681 (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)).

[23] Id. at 685.

[24] “Fraser permits schools to prohibit student speech that undermines the basic educational mission.” Brief for Appellant Deborah Morse, at 21, Morse v. Frederick, 551 U.S. 393 (No. 06-278) January 16, 2007.

[25] Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988).

[26] Id. at 267 (citing Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 47 (1983).

[27] Id. at 271.

[28] Id. (“Educators are entitled to exercise greater control […] to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity [….]”).

[29] See Morse v. Frederick, 551 U.S. 393, 406 (2007) (“Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur”).

[30] See Morse v. Frederick Jt.App., 36 (Micaela F. Croteau Aff.).

[31] See Frederick v. Morse 439 F.3d 1114, 1115-1116 (9th Cir. 2006) (“There was disorder at the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick and his fellow sign-holders. Coca-Cola handed out samples in plastic bottles, and students threw them at each other. Students threw snowballs. Some students got into fights. But Frederick and his group did not participate in these disorders, saving their energy for what they hoped would be their nationally televised sign display. And, the disruption that took place occurred before the display of the banner, so it could not have been caused by it.” [cites omitted]). While the school claimed that the banner was disruptive to the educational mission of the school, Tinker’s requirement has been interpreted as placing the onus on schools to show that an expression poses a more concrete disturbance.

[32] See Morse v. Frederick Jt. App., p 62 (deposition testimony about the term “bong hits”), p 66 (Frederick stating in his deposition that he intended for his words to lack any explicit meaning for them to signify, “whatever you wanted it to be, or nothing if you don’t […].][i]t’s just anything”). Morse v. Frederick, 551 U.S. at 434 (Stevens, J., dissenting) (“I would hold, however, that the school’s interest in protecting its students from exposure to speech ‘reasonably regarded as promoting illegal drug use,’ cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs.” [cites omitted]).

[33] Morse v. Frederick Jt. App., p.26. (Declaration of Deborah Morse).

[34] Morse v. Frederick Jt. App., p.106 (Frederick’s Notice of Suspension).

[35] Frederick v. Morse, 2003 U.S. Dist. LEXIS 27270 (D. Alaska 2003).

[36] Saxe v. State College Area School Dist., 240 F.3d 200 (3d Cir. 2001).

[37] Saxe, 240 F.3d at 214 (summarizing Tinker and its progeny).

[38] Frederick v. Morse 439 F.3d 1114 (9th Cir. 2006).

[39] Id.

[40] See generally Brief for Petitioner Deborah Morse. Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278),

[41] In opposition to the appeal to the Supreme Court and in defense of Frederick, briefs were submitted by (in alphabetical order) the Alliance Defense Fund, American Center for Law and Justice, Center for Individual Rights, Christian Legal Society, Drug Policy Alliance (who had also written an earlier brief to the 9th Circuit and were now joined by the Campaign for New Drug Policies), Lambda Legal Defense and Education Fund, Liberty Counsel, Liberty Legal Institute, National Coalition Against Censorship (joined by American Booksellers Foundation for Free Expression), Rutherford Institute, Student Press Law Center (also writing again and now joined by Feminists for Free Expression, The First Amendment Project, The Freedom to Read Foundation and the Thomas Jefferson Center for the Protection of Free Expression) and Students for Sensible Drug Policy.

[42] See Brief for Christian Legal Society as Amici Curiae Supporting the Respondent (Frederick), Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278).

[43] See Brief for National Coalition Against Censorship as Amici Curiae Supporting the Respondent (Frederick), Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278).

[44] See generally Morse v. Frederick, 551 U.S. at 410 (Thomas, J. concurring).

[45] Both sides argued that the actions of a reasonable school administrator are entitled to at least qualified immunity. Brief for Respondent Joseph Frederick at 36, Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278), (citing Malley v. Briggs, 475 U.S. 800, 818 (1982) (allowing for at least qualified immunity for officials “who make reasonable mistakes). Brief for Petitioner Deborah Morse at 35 Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278), (citing Malley as well as Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

[46] Morse, 551 U.S. at 404.

[47] Id. at 407.

[48] Joined by Justice Kennedy.

[49] Id. at 422 (Alito, J., Kennedy, J. concurring).

[50] See Ponce v. Soccorro, 508 F.3d 765, 769-770 (5^th Cir. 2007) (quoting and explaining Morse, 551 U.S. at 404). Courts refer to Alito’s logic because he was the fifth vote needed for the majority and they interpret his limiting language as controlling.

[51] Morse, 551 U.S. at 404 (Breyer, J. concurring in part, dissenting in part) (“Given the high probability that Frederick’s request for an injunction will not require a court to resolve the constitutional issue, [citation omitted] I would decide only the qualified immunity question and remand the rest of the case for an initial consideration.”).

[52] Daniel Barlow, Church hate group to visit Vt. on Sept. 1, The Barre-Montpelier Times Argus, Aug. 19, 2009, http://www.timesargus.com/article/20090819/NEWS02/908190331/1003/NEWS02.

[53] Id.

[54] Editorial, It’s Free Speech. Just Ignore It. The Caledonian Record, Sept. 1, 2009, http://caledonianrecord.com/main.asp?SectionID=3&SubSectionID=3&ArticleID=46680. See also Barlow, supra.

[55]Id.

[56] Ponce v. Soccorro 508 F.3d 765 (5th Cir. 2007).

[57] Boim v. Fulton County School Dists., 494 F.3d 978 (11th Cir. 2007).

[58] Harper v. Poway Unified Sch. Dist., 545 F. Supp. 2d 1072 (S.D. Cal. 2008).

[59] Nuxoll ex rel. Nuxoll v Indian Prairie School District No. 204, 523 F.3d 668 (7th Cir. 2008).

[60] Morse, 551 U.S. at 422 (Alito, J., Kennedy, J. concurring).

[61] Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d. 34 (2d Cir. 2007)

[62] 508 F.3d 765 (5th Cir. 2007).

[63] Ponce, 508 F.3d at 766.

[64] Ponce, 508 F.3d at 772.

[65]Id. at 770-771, fn 2.

[66] Id. at 770.

[67] Clay Calvery, Misuse and Abuse of Morse v. Frederick by Lower Court: Stretching the High Court’s Ruling Too Far to Censor Student Expression. 32 Seattle Univ. L. R. 1, 15 (Fall 2008).

[68] Boim v. Fulton County Sch. Dist., 494 F.3d 978 (11^th Cir. 2007).

[69] Id. at 984.

[70] 549 U.S. 1262 (2007) (vacating and remanding the Ninth Circuit).

[71] Harper, 545 F. Supp. 2d at 1101 (denying Harper’s F.R.C.P. 60(b)(5) motion to reconsider the decision to grant the defendant school district’s F.R.C.P. 56 motion).

[72] Id.

[73] Id.

[74] Id.

[75] 523 F.3d 668.

[76] Nuxoll, 523 F. 3d. at 674 (From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school–symptoms therefore of substantial disruption–the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test. [….] The School’s rule bans “derogatory comments that refer to race, ethnicity, religion, gender, sexual orientation, or disability.”)

[77] Id.

[78] Id.

[79] Id. at 676.

[80] See Calvery at 15.

[81] Id.

[82]Id.

[83] Doninger v. Niehoff, 527 F.3d 41, 48 (2^nd Cir. 2008) (“Finally, given the special nature of the school environment and the ‘serious and palpable’ dangers posed by student drug abuse, public schools may also ‘take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.’” (citing to Morse)); Lowery v. Euverard, 497 F.3d 584, 602 (6^th Cir. 2007)(“The Court’s holding was a narrow one–namely, that ‘a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.’”); Zamecnik v. Indian Prarie Sch. Dist., 619 F. Supp. 2d 517, 524 (N.D. Ill. 2007)(“[Morse], however, stands for the proposition that opposing the use of illegal drugs is a sufficient justification for regulating student speech. It did not change the scope of [Tinker] and its progeny.”).

[84] Morse, 551 U.S. at 401 (Roberts explaining that school action was necessary considering that the banner was held on a public sidewalk and not on school grounds but directed towards the school and the students).

[85] 494 F.3d 34 (2d Cir. 2007).

[86] Wisniewski, 494 F.3d 34, 35 (2d Cir. 2007).

[87] Wisniewski, 494 F.3d at 36 (stating that police investigator did not see it as a threat) and at 39 (citing Thomas v. Board of Education, 607 F.2d 1043, 1052 n.17 (2d Cir. 1979) (“We can, of course, envision a case in which a group of students incites substantial disruption within the school from some remote locale.”) See Doninger, 527 F.3d 41. For a conflicting ruling, see Layshock v. Hermitage Sch. Dist. 496 F. Supp. 2d 587, 598 (W.D. Pa. 2007).

[88] Joseph Abrams, Lawmaker Presses for Free Speech in Foul-Mouth Student’s Blog Case, Fox News, (February 05, 2009), http://www.foxnews.com/politics/2009/02/05/lawmakers-press-free-speech-foul-mouth-blog-case/.

[89] See Arum at 58

In the previous article, we reviewed how the land gains tax operates. Now, here are some examples to demonstrate the effects of gain and holding period on the rate and size of the tax. Where homes are included, assume they are vacation homes (the land gains tax does not apply to most sales where the property is the primary residence of the seller or will be of the buyer).

Example #1. Home and land is purchased by a couple for $200,000. After an “extreme home makeover,” the vacation home is sold three months later for $600,000. The couple elects to accept the Tax Department’s 25% allocation of gain to land. Without accounting for basis adjustments, these facts will result in an 80% tax on the 25% of the $400,000 gain that is attributable to land, for a total tax of 80% x ($400,000 x 25%): $80,000.

Example #2. Home is purchased for $200,000, and resold after 5 1/2 years for $600,000. The lister’s card indicates land is 20% of the overall value. The 20% of the $400,000 gain is taxed at a rate of 10%, for a total tax of $8,000. While dramatically less than $80,000, this amount of tax will come as a shock to the unsuspecting, particularly if it could have been avoided by proving a higher basis (thereby reducing the computed gain) or, in this case, simply by waiting another six months.

Example #3. A parcel of land is purchased for $300,000 and is resold in three years for $400,000. This scenario will result in a 15% tax on the $100,000 gain, or $15,000.

Withholding Tax

There is one other important detail with respect to the administration of this tax: the buyer is subject to a withholding requirement. The law states that the buyer must withhold 10% of the total purchase price, unless the seller proves the sale is exempt or he can get permission from the Tax Department to withhold less.

This permission to withhold less must be obtained in advance of closing in the form of a commissioner’s certificate. If you do not obtain a commissioner’s certificate, the buyer will be required to withhold an amount that is likely to be well in excess of the actual tax that will ultimately be due. As a seller, you then must submit a final land gains tax return within 30 days of closing and request a refund.

In our experience, the Department may take substantial time to act on your refund request. If a refund claim is denied, the Department is supposed to give you a hearing on the refund request. In any event, the Department is required to act on the refund claim within six months.

If the Department fails to issue a refund, but does not give you a hearing within six months, then the refund request is deemed to be denied and you may appeal to superior court. As you can see, this procedure can cause substantial delay.
Seeking a commissioner’s certificate prior to closing on the sale accelerates this procedure by forcing the seller and the Tax Department to do most of the work that would be required to submit and process a final return. The seller will request an amount that they believe to be appropriate. The Tax Department will do enough due diligence to protect its interest in securing an adequate withholding. Generally, the Tax Department has every incentive to seek from the seller whatever information it would need for an audit.

You are going to have to do the same amount of work either before or after closing. The difference is that by doing it before closing you will get your money into your pocket much more quickly.

Come Prepared

As you can see, the seller of property subject to the tax would be wise to seek a commissioner’s certificate. Unfortunately, the land gains tax is often the last thing on a seller’s mind. Clients frequently come to us after a purchase and sale agreement is signed, which is not ideal.

While aware of the Vermont income tax on real property gains, sellers are frequently surprised to learn of the existence and nature of the land gains tax. They often do not have the information needed to complete a land gains tax return accurately and minimize their tax liability. The result is a combination of panic and increased expense. The client essentially pays us for our time gathering information that he or she could have marshalled in advance of the sale contract.

If you obtain appraisals for the value of the land on acquisition and upon its sale, the preparation of the tax return is quite simple. The Tax Department tends to distrust appraisals, however, and a hearing is almost guaranteed. In most cases, clients will rely on the Listers’ cards or the default percentage allocations allowed by the Tax Department (described in Part 1 in the last issue).

Under either of these latter two methods, it is necessary to calculate the overall gain on the transaction. The practical result of this is rather awkward: we generally find ourselves poring over records related to expenses incurred to make improvements on buildings in order to calculate the overall gain that is then apportioned between land and building.

If you cannot provide proof of such additions to basis, the land gains tax burden will be increased, even though the cost of the improvements arguably has no relationship to the question of the amount of gain on the land. Therefore, if you might sell land within six years that is not exempt from the tax, it is crucial that you maintain these records over the course of your ownership of the property and be prepared to itemize and supply them when it comes time to sell your property.

In order to obtain a commissioner’s certificate to reduce the 10% withholding on the sale of your Vermont property, attorneys need the following information:

1. A copy of the property transfer tax return from your purchase of the property. This return establishes the purchase price of the property for the purpose of calculating basis, and some additions to basis (e.g., transfer tax). The HUD-1 also is useful. It shows your legal fees for the acquisition.

2. The purchase and sale contract for the sale of your property. This document, together with the accompanying property transfer tax return for the sale, establishes the selling price of the property. The purchase and sale contract is relevant because the buyer files a form LG-1 reporting the gross sales price and the 10% withholding. Remember that for purposes of the land gains tax return (LG-2), you must show the amount of gain attributable to land.

If you are including personal property in the sale price (e.g., furniture), you need to indicate this in the purchase and sale contract and on the property transfer tax return. Often, no attention is paid to this issue in the contract, which is typically the form provided by real estate agents. Even if there is a space on the form to indicate the inclusion and value of personal property, sellers often do not concern themselves with this detail.

If you do not itemize in the contract, however, you (or your attorney) will have a very difficult time arguing to the Tax Department that the number you placed on the property transfer tax return as the price of real property is, in fact, the price of both real and personal property. You will end up showing an inflated overall gain on real property, a portion of which will then be allocated to the land, which is then reflected in a higher tax. When clients don’t think about this, the issue is often out of our hands by the time they come through our door.

3. Any and all records related to improvements on the property. These may include:

a. Receipts. If the receipt does not on its face establish a connection to the property being sold, be prepared to explain it. Be prepared for questions regarding who made the expenditure or why any expenditures were made out of state. If no sales tax was paid, Vermont is entitled to collect its 6% use tax. Buying in New Hampshire may not save you money.

b. Invoices. In lieu of a receipt, an invoice, preferably marked “paid,” is usually sufficient. Again, be sure that there is a connection drawn between the expenditure and the property.

c. Cancelled checks. These are also good evidence of payment. Be prepared to explain what the payment was for. Also, if you use an out-of-state checking account, be prepared to explain that as well. The explanation may be simple, but the tax examiner needs to know that the money was spent for improvements on the Vermont property and not for your hot tub at your out-of-state house.

d. Evidence of wages. If you work on your own property, you cannot add the value of your labor to your basis in that property. If, however, you own a contracting business and you redeploy your employees to work on your property, you can include the cost of their labor.

e. Credit card statements. These statements can also be evidence of expenditures related to the property. Again, you must be able to demonstrate or explain the connection. You should highlight those items on the statement that are includable.
f. Permits and professional fees. If you had to obtain permits or licenses, the amounts paid for fees or professional services are includable in your basis. The same is true of architectural fees.

g. Narrative. With respect to all of the above items that are not otherwise clear, an explanatory narrative from you will help.

h. Spreadsheet. If you can, categorize your additions to basis and add them up. Be sure these match what you have for supporting evidence. If not, you will end up paying more in professional fees to piece it all together, and the state will be less likely to take a favorable stance

This article cannot address all the issues that can arise with the land gains tax. However, it should give you the tools necessary for advance preparation that will bear measurable returns in cash, and immeasurable returns in stress relief

• General Practice
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CV:

• Born Middlebury, Vermont, July 4, 1966
• admitted to bar, 1992, Vermont
• 1993, U.S. District Court, District of Vermont
• 1998, U.S. Court, District of Vermont
• 1998, U.S. Court of Appeals, Second Circuit

Education:

• University of Vermont (B.A., 1988); Syracuse University (J.D., summa
  cum laude, 1992). Order of the Coif. Justinian Honor Society.

Author:

• Senior Notes & Comments Editor, Syracuse Law Review.

Member:

• Rutland County and Vermont Bar Associations.