Archive | Freedom of Speech at K-12 Schools

First Amendment Exception for “Racially Hostile or Contemptuous Speech,” Including Display of the Confederate Flag, in K-12 Public Schools — Denial of En Banc Rehearing by Sixth Circuit

As I blogged a few months ago, a two-judge majority on a Sixth Circuit panel held in Defoe v. Spiva that there was such an exception; to quote the panel,

A public high school that can put reasonable limits on drug-related speech by students [referring to Morse v. Frederick, which upheld such restrictions –EV] can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances. Expressions of racial hostility can be controlled in the public schools even if students in the attacked racial group happen to be mature, goodnatured, and slow to react. Schools are places of learning and not cauldrons for racial conflict. Moreover, expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.

Of course, under Tinker v. Des Moines Indep. School. Dist (1969), all student speech — whether racially offensive or not — could be restricted if there is substantial reason to think that the speech will likely cause a material disruption. But the panel majority here concluded that “racially hostile or contemptuous speech,” including the display of a confederate flag, can be punished even without such a showing of likely disruption.

I thought at the time of the panel opinion — and continue to think now — that this is wrong, for the reasons I gave when criticizing a similar Ninth Circuit panel majority opinion about anti-gay speech. (My summary of my argument was that the decision “is a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free […]

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Seventh Circuit Reaffirms High School Students’ Rights to Wear “Be Happy, Not Gay” T-Shirts

The opinion is Zamecnik v. Indian Prairie School Dist. #204 (decided today) (Posner, J.), and it reaffirms the panel’s decision in an earlier phase of the case.

On balance the opinion seems slightly more speech protective than the earlier one, because it doesn’t rely on Morse v. Frederick (as the earlier opinion did in some measure), and because it expressly notes that the precedents do not support “a generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students.” And though the court acknowledges that Tinker v. Des Moines Independent Community School District authorizes the restriction of speech when there’s a substantial likelihood of a substantial disruption, it concludes that on these facts the likelihood wasn’t demonstrated. So it’s a mild win for student speech in K-12 schools, though given Tinker any broader wins would be unlikely.

The opinion also expresses some skepticism about the report by the school district’s expert, which purported to show that the slogan would indeed cause substantial disruption. School district lawyers — and experts — should note the court’s reasoning for the future. […]

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ACLU of Virginia Defends Students Who Want to Post Ten Commandments on Their Lockers

Here’s the Virginia ACLU’s letter to the principal, as posted by WSLS-TV:

We were concerned to hear that the administration of Floyd County High School had removed copies of the Ten Commandments from students’ lockers. If the school is treating students’ religious speech less favorably than other forms of speech, it may violate the First Amendment to the United States Constitution.

Based on news reports, it is our understanding that the “while approval is needed for flyers and announcements, … notes such as happy birthday and well wishes for sports games do not need approval.” It is not clear whether this distinction applies only to material posted by students on other students’ lockers, or if it also applies to material posted by students to their own lockers, as the Ten Commandments appear to have been. If the latter, it is difficult to imagine a legitimate basis for such a distinction.

It is important to understand that allowing students to express their religious views on their lockers is not the same as the school itself posting the Ten Commandments or other religious documents. As the Supreme Court has often explained, “there is a crucial difference between governmentspeech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226 (1990). When the school posts the Ten Commandments on the wall, it is violating the First Amendment by promoting religion. When the school allows students to post the Ten Commandments on their lockers, it is upholding students’ First Amendment rights (as long as religious speech is not treated more favorably than other types of speech, such as political speech).

We therefore urge you to allow students to post their views

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First Amendment Exception for “Racially Hostile or Contemptuous Speech” — Including Display of the Confederate Flag — in K-12 Public Schools?

So a two-judge majority on a Sixth Circuit panel held in Defoe v. Spiva held, arguing that:

A public high school that can put reasonable limits on drug-related speech by students [referring to Morse v. Frederick, which upheld such restrictions -EV] can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances. Expressions of racial hostility can be controlled in the public schools even if students in the attacked racial group happen to be mature, goodnatured, and slow to react. Schools are places of learning and not cauldrons for racial conflict. Moreover, expression of racial hostility can be controlled in the public schools even though such expressions are constitutionally permitted in newspapers, public parks, and on the street. Public school students cannot simply decide not to go to school.

Under Tinker v. Des Moines Indep. School. Dist (1969), all student speech — whether racially offensive or not — could be restricted if there is substantial reason to think that the speech will likely cause a material disruption. But the panel majority here concluded that “racially hostile or contemptuous speech,” including the display of a confederate flag, can be punished even without such a showing of likely disruption.

I think this is wrong, for the reasons I gave when criticizing a similar Ninth Circuit panel majority opinion about anti-gay speech. (My summary of my argument was that the decision “is a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side […]

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Public School Changes Stance, Allows 13-Year-Old to Display American Flag on His Bicycle

I blogged about the incident last week, when the school ordered the boy to remove the flag. Here’s the latest, from a letter posted on the Denair Unified School District site:

As most of you are aware, we’ve had a school issue that has risen to the level of national news coverage. This incident occurred on Monday, November 8th when a campus supervisor asked one of our middle school students to remove an American flag from his bicycle while he was on school grounds. This request was based on concerns for the student’s immediate safety, and to give school staff time to investigate a potentially dangerous situation, involving threats to this student.

While it is our responsibility to ensure that all students are safe at school, we also support every students’ First Amendment rights. We are dealing with the students who threatened to disrupt the school environment. And, the student involved in this incident is now again proudly displaying his flag.

We recognize that we live in the greatest country in the world and that we should all be proud to display the American flag. It’s unfortunate that the entire story of this issue has not been fully portrayed in the media. Denair is a wonderful community, filled with hard working committed citizens who support our schools and our democracy. I’m proud to lead the schools in this community and sincerely hope we can return the focus to our children and their education. We will be addressing the issue with our Board at our regular meeting Thursday, November 18 in the District Leadership room located at 3460 Lester Road, Denair.

Sincere Regards,

Ed Parraz

The superintendent has also apologized for the incident. Thanks to Fred Ray for the pointer. […]

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Public School Orders Student to Take American Flag off His Bike

[UPDATE: The school has now reversed its stance.]

KSBW (Monterey, California) reports:

Thirteen-year-old Cody Alicea put the [American] flag [on his bike] as a show of support for the veterans in his family.

But officials at Denair Middle School told him he couldn’t fly it. He said he was told some students had complained….

[T]he superintendent said he’s trying to avoid tension on campus…. Parraz said the campus has recently experienced some racial tension. He said some students got out of hand on Cinco de Mayo.

“Our Hispanic, you know, kids will, you know, bring their Mexican flags and they’ll display it, and then of course the kids would do the American flag situation, and it does cause kind of a racial tension which we don’t really want,” Parraz said. “We want them to appreciate the cultures.” …

As I wrote when dealing with a similar story from Cinco de Mayo of this year, if there is a reasonably predictable likelihood (not just a bare conjecture) that speech or expressive conduct will cause substantial disruption — which is not clear under these facts — then the school may legally restrict it without violating the First Amendment. That’s the holding of Tinker v. Des Moines Indep. Community School Dist. (1969). (I speak here only of whether the district may legally do this, not whether it should.) I didn’t hear much evidence of that in this story, but of course perhaps there is some evidence that the reporter did not mention, or that the superintendent did not mention to the reporter.

California Education Code § 48950 deliberately gives high school students more protection than the First Amendment does:

(a) School districts operating one or more high schools … shall not make or enforce a rule subjecting a high school

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