Archive | Freedom of Speech at K-12 Schools

You Can’t Force Public School Students to Salute the Flag (or to Hold Their Hands over Their Hearts)

That’s been well-settled First Amendment law for 70 years, but some government officials are still not on top of it. Three years ago, a judge’s attempt to force people to say the Pledge hit the news; now, it’s a Florida teacher. According to Hernando Today,

An Explorer K8 teacher was suspended [for five days without pay] after trying to force one of her students to say the Pledge of Allegiance, according to an investigation….

After the student informed [teacher Anne Daigle-McDonald] of [his religious objection to saluting,] McDonald went to the front of the class and said, “If you don’t want to say the pledge, you still have to put your hand on your heart and if you don’t want to do that, you should move out of the country,” according to the report.

The report also shows McDonald said something about there not being a religion that prohibits doing the pledge, according to the investigation.

Several other students in the class corroborated the allegations, according to the investigation.

Here, by the way, is a passage from the Court’s 1943 Barnette opinion, striking down a compulsory flag salute (and not just the compulsory pledge); the logic would apply equally to a compulsion to put one’s hand on one’s heart:

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms

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California High School Blocks NRA T-Shirt Because It Depicts a Weapon

[UPDATE: The school has backed down, see below.]

So reports CBS Los Angeles:

Sophomore Haley Bullwinkle said when she wore her NRA shirt to Canyon High School last month, she landed in the principal’s office for violating the school’s dress code that forbids offensive, violent or divisive clothing….

The shirt … features a buck, an American flag and a hunter’s silhouette. It also has the words “National Rifle Association of America: Protecting America’s Traditions Since 1871” written in the center….

Principal Kimberly Fricker [wrote] in an email [to Bullwinkle’s father that], “The shirt had a gun on it, which is not allowed by school police. It’s protocol to have students change when they’re in violation of the dress code.”

But this policy (which does indeed ban all depiction of, among other things, “violence” and “weapons”) is unconstitutional, even under the relaxed First Amendment standards applicable in government-run K-12 schools. As Newsom ex rel. Newsom v. Albemarle County School Bd. (4th Cir. 2003) held in a very similar case. And it’s also illegal under California’s Leonard Law, a state statute that provides high school students with even broader protection than does the First Amendment.

For a similar story from earlier this year, see here.

UPDATE: The NRA reports (thanks to commenter D. Laden for the pointer) that the school has apologized:

Sent on behalf of Michael L. Christensen, Superintendent of Schools, Orange Unified School District:

Response to Canyon High School NRA Shirt Incident

Canyon High School has a policy prohibiting clothing depicting or promoting violence. In this incident, a student was referred to the counseling office by a security officer because she was wearing a shirt with a logo that included a rifle. The student was instructed by a staff member to change her shirt and was

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Removing High School Student from Class for Saying “I Don’t Accept Gays” Violates First Amendment

So holds yesterday’s decision in Glowacki v. Howell Public School Dist. (E.D. Mich. June 19, 2013):

Members of the Howell High School Gay Straight Alliance wanted to participate in a national campaign aimed at raising awareness of the bullying of gay, lesbian, bisexual, and transgendered youth on October 20, 2010. As such, the student group submitted a flyer its members hoped to post around the high school with information about Anti-Bullying Day to Principal Aaron Moran. The flyer, which was ultimately approved and placed throughout the school, identified October 20, 2010 as Anti-Bullying Day and asked students and teachers to wear the color purple in recognition of the day. Other than approving the posting of the flyer, the school did not sanction activities or events in connection with Anti-Bullying Day.

[Defendant Jay McDowell, one of plaintiff Daniel Glowacki’s teachers] wore a purple … t-shirt to school on Anti-Bullying Day. Before proceeding with his lesson plans that day, McDowell engaged his students in a brief discussion about bullying and showed a short video about an individual who committed suicide as a result of being bullied due to his sexual orientation. This presentation caused no problems until McDowell’s sixth hour class.

As students began filtering into McDowell’s economics class, McDowell noticed a female student wearing a Confederate flag belt buckle and asked that she remove it. Daniel, who arrived to class a “little late,” witnessed this interaction. From this point forward, the events in question become muddled as the participants and witnesses have different versions.

During his deposition, Daniel testified that after the student removed her belt buckle, class began and McDowell “started to explain about … his purple shirt, what it represented and what it meant.” At this time, Daniel “calmly raised [his] hand” and asked McDowell why the female

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School Excluding Anti-Religious Material from a “Limited Public Forum”

So allege the plaintiffs in Freedom From Religious Foundation v. Orange County School Board (M.D. Fla.), filed last week, and the letter from the school board — Exhibit A — bears this out.

First, a bit of background. Some public schools have allowed religious groups to distribute Bibles at the school. This led to Establishment Clause lawsuits, on the theory that schools’ allowing such distribution (and not other distribution of other works) involved favoritism for religion. So a Florida school board in Collier County tried to deal with the objections — and with the requests from religious groups to continue the distribution — by setting up a “limited public forum” program in which any group is allowed to periodically bring material that students may pick up, except for material that

(i) promotes the use of alcohol, tobacco or illegal drugs; (ii) advertises products or services for sale; (iii) is not appropriate for the age and maturity of high school students; (iv) is pornographic, obscene or libelous; (v) violates intellectual property or privacy rights; (vi) advocates or is likely to incite imminent lawless action; or (vii) is likely to cause substantial disruption at the school despite the application of available discipline rules and procedures.

The material is supposed to be placed on tables, so that students can pick it up if they want to; the representatives of the donor organizations aren’t allowed to urge students to take the material, or to discuss the material with students. The defendant school board in this new case, Orange County School Board, has apparently implemented in a similar policy for high schools.

Now when the government opens up a “limited public forum” on its own property for speech, it may of course exclude (1) generally constitutionally unprotected material (such as the “obscene or libelous”) [...]

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No-Protest-Speech Policy at K-12 Schools

From Hatcher v. Desoto County School Dist. Bd. of Ed. (M.D. Fla. Apr. 5, 2013):

Plaintiff [Amber Hatcher] seeks to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students…. Plaintiff asserts that school officials interfered with her First Amendment right to do so last year, and have asserted again this year that plaintiff will not be allowed to participate as she proposes….

While there are factual disputes as to what plaintiff requested last year, it is undisputed that the Desoto County High School Principal refused to allow plaintiff to engage in any of her requested activities relating to that year’s National Day of Silence. At least some of these proposed activities were well within the written policy of the School Board, and some required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence.

Plaintiff has also satisfactorily established, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all “protest” speech at the Desoto County schools that is contrary to the School Board’s written policy and the First Amendment. The Superintendent of the School Board instructed the Principal to inform plaintiff that “[i]t is inconsistent with the district’s past practice to approve student protests on any of our campuses. The attached [request from plaintiff] is disapproved.” The Superintendent also told the Principal that he “did not refer to a specific policy. Since this is classified as a protest, as evidenced by the submitted documents, I will not approve the activity on our

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NRA T-Shirt Is Back in School, in Multiple Copies

Several readers had e-mailed me about the story of a 14-year-old who was apparently told that he couldn’t wear an NRA T-shirt (which depicted a rifle), and then arrested when the dispute escalated. Yesterday, he was apparently back in school (see ABC News and Washington Times) wearing the shirt, and many classmates are wearing the shirt, too. From the Washington Times account:

Jared Marcum, 14, was joined by about 100 other students across Logan County who wore shirts with a similar gun rights theme in a show of support for free speech.

Ben White, the Charleston lawyer representing the Logan eighth-grader, said the Sons of the Second Amendment, a gun rights group, purchased and distributed the shirts….

Marcum’s lawyer is quoted as saying that the charges would be dropped. The arrest apparently stemmed not from the T-shirt wearing as such, but from the behavior at the dispute that arose as a result; there is disagreement about who was at fault for that behavior:

Video evidence in the case, Mr. White said, indicates that the situation in the cafeteria deteriorated when a teacher raised his voice while confronting Jared. Other students jumped up on benches and began chanting Jared’s name.

“I think the disruption came from the teacher,” Mr. White said.

A police officer arrested Jared after he was sent to the school office and again refused to remove the shirt.

Mr. White said Jared was arrested on two charges of disrupting the educational process and obstructing an officer ….

The school and the police department hasn’t given its side of the story. Note that the school dress code prohibits depictions of “violence” but not of weapons, and Newsom ex rel. Newsom v. Albemarle County School Board (4th Cir. 2003) held that a code that did ban depictions of weapons [...]

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Interesting Student Speech Case

A reader e-mailed me yesterday to ask me what I thought about Taylor v. Roswell Indep. School Dist. (10th Cir. Apr. 8, 2013). I’m inclined to think that it’s about right, but in any event the facts seemed interesting enough to be worth a post. It all started with some students who opposed abortion, and who brought 2,500 rubber alien fetus dolls to school to convey their views. Here’s what happened:

Assistant Principal Brian Luck arrived and noticed the distribution. He went to his office and radioed other administrators to ask whether the students had approval for the distribution. Assistant Principal Michelle Edgett responded that the students did not have approval and told Mr. Luck he should “probably” take possession of the dolls. On his way back to the lobby, Mr. Luck saw several students throwing what looked like small rubber balls at the wall. The “balls” turned out to be dismembered heads of the rubber fetus dolls. Several female students stopped him to complain. Relentless members were not among those dismembering or throwing the dolls.

Mr. Luck approached the Relentless students and said, “It’s time to shut this down…. Some people are getting offended.” He took the remaining dolls and told the students they would be returned at the end of the day. At this point, the Relentless group had distributed more than 300 dolls at Goddard High.

Later that morning, a Goddard High administrator called the principal of Roswell High, Ruben Bolaños, to ask if a similar distribution was underway at Roswell High. Principal Bolaños was not on campus, so he telephoned a campus security officer and instructed him to investigate and to confiscate the dolls “[i]f it’s a disruption to the educational process.” Two campus security guards at Roswell High investigated and eventually determined the dolls

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Ohio School Apparently Banning Pro-Gay-Rights T-Shirt

Here’s the shirt, as photographed by one of the students who organized this:

U.S. News & World Report reports:

The debate at Celina High School started after two female high school students celebrated the high school’s “Twin Day” last week by wearing shirts to school that read “Lesbian 1” and “Lesbian 2” on the back. They were promptly asked to remove the T-shirts, according to students there.

On Tuesday, some 20 students decided to show their support of the girls by wearing their own T-shirts to school. The shirts read: “I support…” with a photo of a rainbow. “Express yourself.”

The students say that the shirts were banned on the grounds that they were “political,” though there seems to be no policy banning political shirts, and indeed (the students say) many other students often wear political shirts. According to the article, administrators “agree the students who wore the rainbow T-shirts were asked to remove them,” but say that this is likely because the shirts were seen as “disruptive.”

Under the Tinker v. Des Moines Independent School District (1969) decision, public K-12 schools are indeed entitled to restrict student speech when it poses a material risk of substantially disrupting school work, and courts have generally read this as covering speech that is disruptive only because its viewpoint arouses hostility from viewers. The “heckler’s veto,” under which speech is restricted because it may lead to misconduct by listeners or viewers who disagree with it, is generally not allowed in most contexts, but it is allowed — given the Tinker substantial disruption standard — in public K-12 schools.

Still, courts generally require some serious evidence of likely disruption, and not just administrator speculation; consider, for instance, the “Jesus Was Not a Homophobe” T-shirt case. And I’m not sure that such evidence [...]

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Public High School Math Teacher Allegedly Tells Student to Leave Class for Wearing Pro-Romney T-Shirt

So reports, and there appears to be some acknowledgment from the school district that the teacher acted improperly:

The teacher allegedly told the girl to take off the shirt, saying it was like wearing a Ku Klux Klan sheet. The teacher allegedly threatened to use a marker to cross out Romney’s name and that of Rep. Paul Ryan, his running mate. The teacher also allegedly tried to throw the student out of class.

The teacher also allegedly said that Carroll was “a Democratic school.”

A school district spokesman confirmed that “a teacher made some comments to a student wearing a Romney t-shirt in their classroom. The comments were of a political nature, and also of a personal nature. We are looking into the comments, and the conduct of the teacher.” The teacher has been apparently temporarily shifted to a different class “to allow the student to feel comfortable to come to the class,” and the school official acknowledged that the student “was expressing her freedom of speech, and was not in violation of any school or district policy.”

FoxNews has a TV interview in which the student made the allegations on-camera. According to a follow-up story, the girls’ parents met with the teacher and the principal, and “the teacher insisted she had been joking, then stormed out and left the school.” The girl’s father also states that he was given the option of filing a formal complaint, or “letting the principal handle the incident, with the teacher getting some form of training.”

If anyone has more factual details, or pointers to stories that mention any statements by witnesses or school officials, please let me know. Thanks to Paul Milligan for the pointer. [...]

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Keeping Wolverines Out of Oklahoma City Schools

USA Today reports that a boy in an Oklahoma City kindergarten was required to turn his t-shirt inside-out because it violated state policy concerning appropriate school attire.

Cooper Barton, 5, comes from a family of Michigan fans. He went to school wearing a maize and blue shirt with “The Big House,” the nickname for Michigan’s 114,000-seat stadium, written on the front. The school principal made Cooper turn the shirt inside out due to the state policy.

The rule is among many restricting clothing and dress in the city schools. It came into effect in 2005 after suggestions from a gang task force. On the list of banned items, non-Oklahoma college dress falls directly in between gang symbol haircuts and “satanic cult dress, witchcraft and related symbols.”

More here. [...]

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Pro Bono Case Challenging Public School Shirt-With-School-Motto Requirement

I’m working right now on the Reply Brief in Frudden v. Pilling, a case I’m litigating in the Ninth Circuit; the chief (but not only) issue is whether Wooley v. Maynard, which held that people have the First Amendment right to obscure a state motto on license plates, secures public school students’ right to obscure a school motto on the mandated school uniform shirts. In case you’re interested, here are the relevant documents:

  1. The district court opinion, which upheld the policy.
  2. Our opening brief. [UPDATE: Fixed broken links, sorry about the glitch.]
  3. The other side’s answering brief.
  4. The Student Press Law Center amicus brief.
  5. The Alliance Defense Fund amicus brief.
  6. UPDATE: Our reply brief, added some time after this post went up, just to keep all the briefs together.

It’s a fun case, and I look forward to finishing the reply brief (due next Friday), and, I hope, arguing it late this year or early next. Many thanks also to the SPLC and the ADF for helping us out.

UPDATE: Meant to include the amicus briefs, but forgot at first. I must be more tired than I thought I was …. [...]

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High School Bars Student From Wearing an Anti-Same-Sex-Marriage T-Shirt

Here’s a letter the ACLU of Connecticut wrote on the student’s behalf last week (italics added):

We are writing on behalf of Wolcott High School junior Seth Groody and his parents. He states that Wolcott High School recently sponsored a “Day of Silence,” designed, in his understanding, to promote tolerance for alternative lifestyles, including homosexuality. He wore to school that day a tee-shirt that depicted, on one side, a rainbow — the commonly-recognized symbol of gay rights — with a slash through it and, on the other, a male and female stick figure, holding hands, above the legend, “Excessive Speech Day.” His purpose in wearing the tee-shirt was to express his dislike for gay marriage and his opposition to the perceived message that was promulgated by the school. He was ordered to remove the shirt, and, under protest, he did so.

To the best of Seth’s knowledge and belief, Wolcott High School has no rule or policy that prohibits the wearing of expressive attire. His wearing of the shirt did not “materially or substantially interfere with … the operations of the school,” or cause “invasion of the rights of others,” as these terms have been defined in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and its numerous progeny.

The school’s actions in requiring Seth to remove his tee-shirt, absent evidence of material and substantial interference, or invasion of the rights of others, violate the First Amendment to the United States Constitution and Article First, Sections 4 and 5, of the Constitution of Connecticut. The present matter is on all fours, not only with Tinker (in that Seth’s tee-shirt is indistinguishable from Mary Beth Tinker’s anti-war armband), but, even more saliently, with the recent unanimous Seventh Circuit decision in Zamecnik v. Indian Prairie School Dist.

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Ohio School District Relents, Allows “Jesus Is Not a Homophobe” T-Shirt

I blogged last month about the school district’s refusal to allow the shirt; “the message communicated by the student’s T-shirt,” the district argued, “was sexual in nature and therefore indecent and inappropriate in a school setting.” The student sued on First Amendment grounds, and Lambda Legal reports that the district has settled; here are the key terms:

2. The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses….

4. Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.

Thanks to my coblogger Jonathan Adler for the pointer. [...]

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May “Jesus Is Not a Homophobe” T-Shirt Be Banned from Public High School as “Indecent” and “Sexual”?

That’s what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:

It is the position of Wayne Local School District Board of Education that the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.

The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)

Indeed, even Morse v. Frederick (2007) acknowledged that 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.” This is precisely what’s at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.

To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn’t even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was [...]

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