Saturday, April 22, 2006

Free Speech in Public Schools?

It's fairly clear to most people that students don't enjoy complete Constitutional Rights. For example, they are subject to - let's say abridged - First Amendment rights at school. This means that students have a limited right to free speech. Generally this means that they are able to speak on a public matter so long as the speech is not lewd, vulgar, obscene or plainly offensive.

Over the years, the Court has defined where the line is. Typically, a student is free to protest in school in a non-disruptive way. In one case, students protested the Vietnam War by wearing black armbands. The Supreme Court ruled that the armbands were protected free speech because there was no evidence that the mere wearing of the armbands (which said nothing on them) caused any disorder or disruption of the educational process. Fear of a disruption is not enough; there must be evidence in the record to allow officials to "reasonably ... forecast substantial disruption of or material interference with school activities." (Tinker v. Des Moines Independed School District, 393 U.S. 503, 514 (1969)).

The Supreme Court ruled later, however, that not all speech is protected in the same manner as Tinker's armbands. In Bethel School District No. 403 v. Fraser, the Court, while ruling on First Amendment Protection of a speech that included an "elaboratte, graphic, and explicit sexual metaphor" by a high school student, cited a similar case by an adult, Cohen v. California (403 u.s. 15, 91 S. Ct. 1780 (1971)), who wore a jacket that said "Fuck the Draft." The Court summed up the difference by stating that "the First Amendment Gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket." Bethel School District No. 403 v. Fraser, 475 us 675, 106 S. Ct. 3159, 3164 (1986). Fraser lost the decision.

Kuhlmeier is a third Supreme Court case that deals with First Amendment speech issues. In Hazelwood School District v. Kuhlmeier, the Court looked at the the extent to which school officials could censor a school newspaper written by students in a Journalism course. The Court noted that public schools are NOT traditional public forums, and as such are subject to a different rule than traditional public forums. The Court ruled that there must be a clear intent to create a public forum and looked to the district policy. The Court ruled that schools can place restrictions on "school-sponsored" speech, such as a student paper, so long as the restrictions are reasonably related to legitimate pedagogical concerns. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988).

These cases, taken together, establish essentially a trifurcated system for school officials to use to determine whether or not student spech is protected by the First AMendment. First, one must ask if the speech being delivered is "school sponsored" speech (Kuhlmeier) or is it "school tolerated" (Tinker)? Then, we ask whether the speech can be considered lewd, vulgar, obscene, or plainly offensive. (Fraser).

For the record, all of this information is from Texas School Law, A Practical Guide, Second Edition, by Kelly Frels and Jeffrey J. Horner Copyright 2004.

Why do I take the time to explain all this? Because recently, the 9th Court of Appeals ruled on Harper v. Poway School District. The background in Harper is that the school allowed a "Day of Silence" for gay and lesbian students. These students participated by wearing duct tape over their mouths and didn't speak in class for the day in a symbolic gesture. One student took offense to the day and wore a T-shirt that said on the front "Be ashamed, our school has embraced what God has condemned," and on the back "Homosexuality is shameful." When questioned by the vice principal, the boy admitted that there was a terse

The school asked the boy to remove the T-shirt because it was offensive. He refused and was denied suspension, rather had to spend the rest of that day in the principal's office working on homework. He then sued the school alleging violation of First Amendment Rights. The trial court ruled and the 9th Circuit Court of Appeals affirmed the ruling that his First Amendment rights were not violated.

Why is there a different standard for the boy than there was for the gay and lesbian students who partook in the day of silence? Well, for one, the boy's shirt was offensive to a segment of the population, and even if he didn't physically accost any students, his shirt's message can send the same message. This violates Tinker. Additionally, the t-shirt said on the back "homosexuality is shameful" which is offensive to a segment of the population, and thus this shirt violates Fraser. On the other hand, the Day of Silence, while "allowed" by the school wasn't an endorsement of gay rights, rather it was an authorization for passive protest speech which is authorized under Tinker. Second, the speech is not lewd, vulgar, obscene, or plainly offensive, indeed, it's duct tape, which is fairly passive speech, so it doesn't violate Fraser.

The 9th Circuit Court of Appeals might come up with some very interesting rulings and might march to its own beat quite often, but I think they reached the right decision here.

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