Archive | Freedom of Speech at K-12 Schools

“All the Cool Girls Are Lesbians”

The Lynn (Mass.) Daily Item reports:

A Lynn English High School student reprimanded for wearing a t-shirt which read “All the cool girls are lesbians,” set off a debate during Thursday’s School Committee meeting on the school dress code and how it is enforced….

Kennedy told committee members Thursday that she received a letter from a student who was asked by one of the vice principals to cover her t-shirt and never wear it again….

In the letter, the student said she was sitting in the cafeteria at lunch when a teacher told her to show Vice Principal Joseph O’Hagan her shirt. O’Hagan, she wrote, agreed with the teacher that the shirt was inappropriate. When she asked why, the student said she was told, “Because it’s political and offensive to some people.” …

English Principal Thomas Strangie … said a student can be made to cover up a shirt that is deemed disruptive, “and that (shirt) could have been disruptive. It was nothing against her.”

Of course, at this point this is just an allegation by the girl; but if it’s accurate, then the school’s actions violate the First Amendment, unless there’s some showing that the T-shirt had materially disrupted class, led to fights, or posed a demonstrable risk of doing either. The mere possibility that the T-shirt might be disruptive, absent some real evidence that disruption was likely, is not sufficient to justify restricting it. Of course, I take the same view as to anti-homosexuality T-shirts. (Note that the case I condemn in the post I just linked to, a case that did justify suppression of anti-homosexuality T-shirts even in the absence of a showing of actual or likely disruption, was vacated and is therefore no longer precedent.) Thanks to Thomas Riebs for the pointer.

UPDATE: As commenter […]

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Viewpoint Discrimination in K-12 School Library Filtering

As I’ve said before, the Supreme Court has never decided whether K-12 schools may remove books from school libraries based on their viewpoints, or may filter out Web sites based on their viewpoints. The Court’s cases dealing with this question, Board of Ed. v. Pico and U.S. v. American Library Ass’n were badly splintered and provided basically no majority on the subject.

Pico, for instance, split 4-4 on the book removal issue, with the deciding vote (Justice White) expressing no opinion and sending the case down for more factfinding. (“The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case.”) Likewise, ALA yielded no useful conclusion.

This makes yesterday’s Parents, Families & Friends of Lesbians & Gays, Inc. (PFLAG) v. Camdenton R-III School Dist. (C.D. Mo. Jan. 15, 2012) especially interesting: The court issued a preliminary injunction against a school district’s use of a filter that apparently generally filtered out pro-homosexuality sites — including ones that weren’t sexually explicited — but not anti-homosexuality sites. (“URL Blacklist systematically allows access to websites expressing a negative viewpoint toward LGBT individuals by categorizing them as ‘religion’, but filters out positive viewpoints toward LGBT issues by categorizing them as ‘sexuality’.”) The court held that government’s continued use of this filter, especially given the availability of other filters that did better both at blocking outright porn and at not blocking commentary on homosexualiy, was likely viewpoint discriminatory and therefore unconstitutional, which led it to issue a preliminary injunction. The standard for issuing […]

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FCC Standards Come to Arizona Classrooms

Here’s a bill currently being considered by the Arizona Legislature:

A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:

1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension….

2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension….

3. For the third occurrence, the school shall terminate the employment of the person….

B. For the purposes of this section, “public school” means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.

What a silly bill. First, what’s the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers’ vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?

Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the […]

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Article in High School Newspaper Criticizing Homosexuality = “Bullying”?

The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is […]

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Not Safe to Display an American Flag in an American High School

Dariano v. Morgan Hill Unified School District (N.D. Cal.), decided the day before yesterday, upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)

The decision might well be correct under Tinker v. Des Moines Independent Community School Dist. (1969), which allows a “heckler’s veto” in K-12 school: Schools may indeed restrict student speech when it’s likely to cause substantial disruption, even when the disruption stems from other students’ hostility to the speech. As I mentioned in an earlier post, I think the speech restriction violates a California statute that gives students extra protection, but that claim wasn’t raised in this federal lawsuit.

Yet while the judge might have been right in his decision, the situation in the school seems very bad. When we’re at the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech), something is badly wrong. Here’s an excerpt from the court opinion describing the facts that led the court to uphold the restriction:

On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting “USA” as this flag went up. This was in response to a group of Mexican


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“Islam Is of the Devil” T-Shirts in Junior High School and High School

Sapp v. School Board of Alachua County (N.D. Fla. Sept, 30, 2011), which was just made available on Westlaw today, holds that (1) a public school properly restricted the wearing of “Islam is of the Devil” T-shirts because they led to substantial disruption, and (2) the school’s broader policy banning “clothing or accessories that … denigrate or promote discrimination for or against an individual or group on the basis of age, color, disability, national origin, sexual orientation, race, religion, or gender” was constitutional.

Decision 1 strikes me as correct, given Tinker v. Des Moines Indep. Comm. School Dist. (1969), which allows speech in K-12 schools to be restricted if it seems likely to cause substantial disruption. To be sure, this allows a “heckler’s veto” that wouldn’t be allowed outside K-12 schools — here, for instance, the disruption included (among other things) a student’s telling one of the T-shirt wearers, “My friend is a Muslim, and he’s going to kill you”; if this happened outside school, that would only be justification for punishing the threatener, not suppressing the speech of the threatened. Nonetheless, Tinker does allow student speech to be restricted when it causes disruption, and hostile reactions might well be quite disruptive.

Decision 2, though, strikes me as incorrect, because it isn’t limited to speech that causes disruption; indeed, the policy is much like that struck down by the Third Circuit in Saxe v. State College Area School Dist. (2001). Indeed, the policy is so broad that it would ban display of messages that say “Preserve Traditional Marriage” (in a context where this is understood as opposing proposals to allow same-sex marriage), even if such messages create no disruption — after all, such a message “promote[s] discrimination … against … [a] group on the basis of … […]

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The First Amendment and the Government as K-12 Educator

Since First Amendment controversies involving the government as K-12 educator often come up on the blog, I thought I’d summarize the Supreme Court’s precedents on the subject:

1. The government acting as K-12 educator (i.e., kindergarten through 12th grade) may restrict speech if it

a. “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” Tinker v. Des Moines Independent Community School Dist. (1969), or

b. “inva[des] … the rights of others,” id. (query what rights these are — the Court has never discussed this, and the majority and Justice Alito’s concurrence in Morse v. Frederick (2007) described Tinker by reciting only the disruption prong), or

c. is “vulgar and offensive” because of its particular wording and not because of its viewpoint, Bethel School Dist. No. 403 v. Fraser (1986); see also Morse (“[Fraser] should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.”), or

d. “would [be] interpret[ed by a reasonable observer] as advocating illegal drug use and … can[not] 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,” Morse (Alito, J., concurring).

2. Under Tinker, mere fear of interference isn’t enough; there has to be some specific “reason to anticipate” interference. This is especially so if the restriction seems aimed at a particular viewpoint, though the Court has left open the possibility that even viewpoint-based restrictions would be allowed if certain viewpoints were particularly disruptive. Tinker.

3. Lower courts are split about the degree to which this justifies restricting off-campus speech on the grounds that it […]

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D.C. Council Considering Requiring Speech Code in City Parks and the University of District Columbia

The proposed law would mandate that public and charter schools, city parks, city libraries, and the University of District Columbia ban

any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic that: …

has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of a school, university, recreation facility, or library.

Say, then, that someone puts on an event at a park that “has the effect of insulting or demeaning” Muslims or Scientologists or fundamental Christians or gays or men or women, if some of the insulted or demeaned group consists of “students” (whether school or university students). And say that this “cause[s] substantial disruption in, or substantial interference with, the orderly operation of” the park — perhaps by leading to a counterdemonstration, or maybe just by insulting some other park visitors. Under the policies that the proposed law would mandate, such speech would have to be banned. Yet that would be a pretty clear violation of the First Amendment as it protects free speech in a traditional public forum such as a park, see, e.g., Forsyth County v. Nationalist Movement (1992). And even on non-traditional-public-forum property, such as in a library or an indoor recreational facility, viewpoint-based restrictions would be unconstitutional; a ban on speech that demeans groups based on various criteria would likely qualify as viewpoint-based and therefore unconstitutional.

Likewise, the proposed law would require the University of District Columbia to punish UDC students […]

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David Hudson, Guest-Blogging

I’m delighted to report that David Hudson, of the Freedom Forum First Amendment Center at Vanderbilt, will be guest-blogging this coming week about his new book, Let the Students Speak!: A History of the Fight for Free Expression in American Schools. The title is largely self-explanatory — the book talks both about the leading Supreme Court cases on the subject, but also about other controversies, including the most recent ones (such as the debate about “cyberbullying”). I’m much looking forward to David’s posts. […]

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Discrimination Against Student Religious Speech

Schools, including K-12 schools, generally can’t discriminate against religious speech by students, outside the school curriculum (such as class assignments) or school-organized programs (such as graduations). If they allow extracurricular nonreligious clubs to form, they must let religious clubs form. If they allow nonreligious flyers to be distributed, they must allow religious flyers to be distributed. They may be able to limit a wide range of flyers (say, all flyers that aren’t directly related to school events), but they may not impose that limitation based on the religious content of the flyers. All this, I thought, had been well-settled by a long line of cases such as Lamb’s Chapel v. Center Moriches School Dist., Rosenberger v. Rector, Good News Club v. Milford Central School, and many lower court cases.

But many schools — even schools in very religious parts of the country — still haven’t gotten the message. The latest example I saw was Wright v. Pulaski County Special School Dist. (E.D. Ark. Mar. 25, 2011, just posted on Westlaw in the last few days). An excerpt:

Wright filed this case on her own behalf and on behalf of her child, A.W., a third grade student at Sherwood Elementary School. In October 2009, Wright contacted A.W.’s teacher and requested permission to send home with students and post in the school’s literature rack, flyers for a church-sponsored swimming event. Wright was directed to contact Brazil, the Principal of Sherwood Elementary, to obtain permission. Brazil denied Wright’s request because the flyers were “church related.” This position was affirmed when Wright contacted Harnish, the Director of Elementary Education. Wright then contacted McGill, the Acting Superintendent of Pulaski County, who maintained that A.W. could not send students home with the flyers or post them in the literature rack…. Defendants cited


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“Not Much Good Takes Place at Slumber Parties for High School Kids, and This Case Proves the Point”

So begins T.V. v. Smith-Green Community School Corp. (N.D. Ind. Aug. 10), which (1) holds that a high school violated plaintiffs’ First Amendment rights when it suspended them from the volleyball team because they had posted a raunchy video of themselves on the Internet, and (2) holds that the school’s code of conduct allowing suspensions for “act[ing] in a manner in school or out of school that brings discredit or dishonor upon yourself or your school” is unconstitutionally vague and overbroad. (Both holdings, I think, are correct, given the Court’s precedents; I briefly explain my thinking at the end of the post.) Here are the relevant facts about the speech involved:

[D]uring the summer of 2009, T.V. and M.K. were both entering the 10th grade at Churubusco High School, a public high school of approximately 400 students. Both T.V. and M.K. were members of the high school’s volleyball team, an extracurricular activity, and M.K. was also a member of the cheerleading squad, also an extracurricular activity, as well as the show choir, which is a cocurricular activity. [Obligatory Glee reference.-EV] Cocurricular activities provide for academic credit but also involve activities that take place outside the normal school day.

Try-outs for the volleyball team for the coming year would occur in July. A couple of weeks prior to the tryouts, T.V., M.K. and a number of their friends had sleepovers at M.K.’s house. Prior to the first sleepover, the girls bought phallic-shaped rainbow colored lollipops. During the first sleepover, the girls took a number of photographs of themselves sucking on the lollipops. In one, three girls are pictured and M.K. added the caption “Wanna suck on my cock.” In another photograph, a fully-clothed M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed


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Court Upholds Discipline of University Student Based on Speech, Citing Tinker

The case is Tatro v. University of Minnesota, decided today by the Minnesota Court of Appeals. I can understand how the decision would be appealing on its facts, but the logic of the case strikes me as quite dangerous.

Amanda Tatro is a student in the mortuary-science program at respondent University of Minnesota. The program prepares students to become funeral directors or morticians, and includes laboratory courses in anatomy, embalming, and restorative art. The laboratory courses utilize cadavers donated through the university’s anatomy-bequest program. Before taking the laboratory courses, Tatro participated in an orientation program that addressed appropriate conduct with respect to anatomy-bequest-program [cadaver] donors. She signed a disclosure form indicating that she understood and agreed to abide by the program rules.

During November and early December 2009, Tatro posted the following on her Facebook page:

Amanda Beth Tatro Gets to play, I mean dissect, Bernie today. Lets see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve. [Footnote: “Bernie” was the name Tatro gave to the cadaver/donor she was assigned to work on, and is derived from the film Weekend at Bernie’s.] …

Amanda Beth Tatro Is looking forward to Monday’s embalming therapy as well as a rumored opportunity to aspirate. Give me room, lots of aggression to be taken out with a trocar [a sharp instrument used during embalming].

Amanda Beth Tatro Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though. [Footnote: Tatro testified at the Campus Committee on Student Behavior hearing that she was referring to a man who had just broken up with her. She indicated that they talked on Facebook and she “knew he was going


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Third Circuit (En Banc) Opines on K-12 Students’ Off-Campus Speech Rights

The long-awaited decisions are J.S. v. Blue Mountain School Dist. (decided by an 8-to-6 vote) and Layshock v. Hermitage School Dist. (unanimous); both were just handed down this morning. Here’s a quick summary, though the opinions are long and complicated, so my quick summary must necessarily omit many important details.

1. To begin with, here’s the background First Amendment rule: When the government acts as K-12 educator to discipline students for their speech — expel them, suspend them, eject them from various optional programs, and the like — it is constrained by the First Amendment. But it’s not as constrained by the First Amendment as it is when it’s acting as sovereign, locking people up or taking away their money based on speech. In particular, in addition to the usual First Amendment exceptions (such as the ones for libel, threats, fighting words, and so on), there are three more doctrines that might be seen as special K-12-school exceptions. The government may discipline students for speech that:

  1. “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” or at least that is “reason[ably] anticipate[d]” to have such an effect (Tinker v. Des Moines School Dist. (1969)),
  2. is “vulgar and offensive” because of its particular wording and not because of its viewpoint (Bethel School Dist. No. 403 v. Fraser (1986)), or
  3. “would [be] interpret[ed by a reasonable observer] as advocating illegal drug use and … can[not] 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,” Morse v. Frederick (2007) (I quote here Justice Alito’s concurrence, but the majority is consistent with this).

2. In both J.S. and Layshock, students set up […]

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First Amendment and Proposed Restrictions on Bullying (and Cyber-Bullying) of K-12 Students

The U.S. Commission on Civil Rights held a briefing last Friday on bullying (and cyber-bullying) of K-12 students; there were many people speaking about various aspects of this question, and in particular about whether and to what extent the federal government should get involved. I spoke about the First Amendment issues created by broad “anti-bullying” or “anti-harassment” policies, whether imposed by the federal government or by state or local governments.

If you’re interested in this subject, you might check out the videos of the various panels here (see the main item, and the first three related items). My own brief presentation starts at about 20:23, with follow-up questions and answers at 57:35, 1:01:00, and 1:13:58. You can also look at the Department of Education Office for Civil Rights Dear Colleague letter to which I refer, and see my written testimony. […]

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The Case of the Cheerleader, the Alleged Rapist, and the First Amendment

I’ve heard quite a bit in the last few days about Doe v. Silsbee Indep. School Dist., the case in which a high school cheerleader was allegedly raped by a football and basketball player from the same high school, refused to cheer for him when he was playing, was kicked off the squad, and sued claiming this violated her First Amendment rights not to be compelled to speak. The cheerleader lost, and this past Monday the U.S. Supreme Court refused to rehear the case.

The Fifth Circuit’s decision rejecting the First Amendment claim sounds absolutely right to me. In school, you are compelled to speak all the time — on exams, when answering questions in class, when taking positions that are you required to take for the sake of argument, and so on. This is especially so when you get involved in special programs that require you to speak: drama class, the high school newspaper, debate, cheerleading, sports programs that require you to wear uniform with symbols on them, choruses, and so on. The job of an actor is to play a role. The job of a cheerleader is to cheer. The Supreme Court has never held that the First Amendment materially constrains public schools’ ability to shape the speech that is part of the school curriculum, whether purely academic or otherwise. At most, there is a highly deferentially applied requirement that the speech compulsion be ““reasonably related to legitimate pedagogical concerns.” And when one applies this to a non-purely-academic program such as cheerleading, it seems to me that the school could equally require speech when the requirement is reasonably related to producing the particular speech product that the school is trying to produce.

It is true that one of the leading compelled speech cases — […]

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