The First Amendment In A Nutshell Regulation of Student Speech August 28, 2007 Mary McGowan, Esq. Prince William School Board Attorney Blankingship & Keith, P.C. 9300 West Courthouse Road, Suite 201 Manassas, Virginia 20110 (703) 365-9942 mmcgowan@bklawva.com

Protected speech includes The First Amendment limits the ability of the state (public schools) to restrict student speech Protected speech includes actual speech symbolic speech or other modes of expression Symbolic or expressive speech includes: display of flags display of posters or placards student dress (t-shirts/clothes bearing words or symbols, flags on clothing, etc.) jewelry with symbols (i.e., peace symbol, religious cross) license plates and bumper stickers armbands

Non-Protected Categories of Speech True threats Lewd, vulgar, indecent or plainly offensive speech School-sponsored speech conflicting with educational mission of the schools Defamatory speech

The Law and the Facts = The Answer

U.S. Supreme Court Cases Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) Bethel School Dist. v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 180 S. Ct. 562, 98 L. Ed. 2d 592 (1988) Morse v. Frederick, 127 S. Ct. 2618, 168 L. Ed. 2d 290, 2007 U.S. LEXIS 8514 (June 25, 2007)

Tinker v. Des Moines Ind. Sch. Dist (1969) FACTS: Students wore black armbands to school to publicize their opposition to the Vietnam War School had adopted a policy a few days earlier prohibiting armbands and imposing suspension for students who refused to remove armbands Students suspended for refusal to remove armbands Wearing of armbands was passive expression of opinion No evidence of interference with school’s work or collision with rights of other students to be secure and let alone

Tinker v. Des Moines Ind. Sch. Dist (1969) (cont’d) FACTS: No evidence of classroom disruption A few hostile remarks from other students, but no threats or acts of violence on school premises No reason to support school authorities’ fear of a disturbance School authorities adopted the prohibition because they felt schools are no place for demonstrations School did not prohibit the wearing of all symbols of political or controversial significance

Tinker v. Des Moines Ind. Sch. Dist (1969) (cont’d) LAW: Neither students nor teachers “shed their constitutional rights at the schoolhouse gate” Student’s wearing of armbands is “pure political speech” entitled to comprehensive protection under the First Amendment Student political speech may not be prohibited absent evidence that the exercise of such expression will materially and substantially interfere with discipline and the operation of the school or invade the rights of other students

Tinker v. Des Moines Ind. Sch. Dist (1969) (cont’d) LAW: Undifferentiated fear or apprehension of disturbance not enough to overcome the right to freedom of expression Not permissible to restrict pure speech because school authorities “desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” Classroom is the “marketplace of ideas.” Students may express opinions on controversial subjects in and outside the classroom, if done without materially and substantially interfering with the requirements of discipline in school operations and without colliding with the rights of others

Tinker v. Des Moines Ind. Sch. Dist (1969) (cont’d) Dissent of Justice Black: “I wish, therefore, . . . to disclaim any purpose . . . to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students”

Bethel School District v. Fraser (1986) FACTS: High school students delivered a speech at student assembly, nominating fellow student for student government office 600 students in attendance, including many 14-year olds Speech referred to candidate in terms of sexual metaphor “he’s firm in his pants . . . his character is firm” “a man who takes his point and pounds it in” “a man who will go to the very end – even the climax, for each and every one of you”

Bethel School District v. Fraser (1986) (cont’d) FACTS: Some students reacted with hooting and yelling and sexually suggestive gestures. Other students bewildered and embarrassed. Disciplinary rule stated “conduct which materially and substantially interferes with educational process is prohibited, including the use of obscene, profane language or gestures” Student suspended for 2 days and removed from list of graduation speakers

Bethel School District v. Fraser (1986) LAW: Suspension upheld because not related to expression of any political viewpoint (not “pure speech”) It is the function of public education to prohibit the use of vulgar and offensive terms in public discourse Vulgar, lewd, indecent, or offensive speech and conduct may be regulated with or without a material and substantial disruption

Hazelwood v. Kuhlmeier (1988) FACTS: Principal eliminated articles from student newspaper which described students’ experiences with pregnancy and impact of divorce on particular students Newspaper written and edited by journalism class, as part of curriculum

Hazelwood v. Kuhlmeier (1988) (cont’d) LAW: “School-sponsored” publications are not public forums for student expression and content may be limited School need not tolerate student speech that is inconsistent with its basic educational mission Tinker substantial disruption standard not applicable to “school-sponsored speech” Educators may exercise greater control over student expressive activities which the public might perceive as bearing the imprimatur of the school

Morse v. Frederick, 127 S. Ct. 2618, 168 L. Ed. 2d 290, 2007 U. S Morse v. Frederick, 127 S.Ct. 2618, 168 L. Ed. 2d 290, 2007 U.S. LEXIS 8514 (June 25, 2007) FACTS: Student suspended after refusing principal’s direction to take down a banner stating “BONG HITS 4 JESUS,” which principal regarded as promoting drug use Students released from school to observe the Olympic Torch Relay, which passed through the street in front of the high school Students on street monitored by teachers and administrators Frederick late to school, joined friends on street. As torch passed, Frederick unfurled 14-foot banner

Morse v. Frederick (cont’d) LAW: Speech took place during a school-sponsored activity Principal may restrict student speech at a school event when the speech is reasonably viewed as promoting illegal drug use Promotion of illegal drug use conflicts with school’s mission to educate students about dangers of drug use

Morse v. Frederick (cont’d) LAW: Tinker standard not applicable here, because Tinker involved political speech Fraser established that school officials have authority to determine “what manner of speech in the classroom or school assembly is inappropriate” Hazelwood established that Tinker standard is not only basis for restricting student speech

Morse v. Frederick (cont’d) Justice John Paul Stevens: “I am afraid that our jurisprudence now says that students have a right to speak in school except when they don’t – a standard continuously developed through litigation against local schools and their administrators”

Tinker Standard As Applied in 4th Circuit: Broussard v. School Bd. of City of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992): FACTS: Middle school student suspended for refusing to change t-shirt bearing the words “drugs suck,” which student claimed expressed her opinion that “it is not right to use drugs.” No disruption Assistant Principal and School dean agreed the word “suck” was offensive and carried sexual connotations Dress code prohibited wearing of clothing “that distract other students and interferes with the classroom participation of other students.”

Broussard v. School Bd. of City of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992): (cont’d) LAW: Case decided under Fraser, school has ability to restrict offensive messages and court defers to school administration’s interpretation that “suck” is lewd, vulgar or offensive. Tinker distinguished as an attempt to suppress the message itself, not the form of the message.

Phillips v. Anderson County Sch. Dist. , 987 F. Supp. 488 (D. S. C FACTS: Middle school student suspended for refusing to remove jacket depicting the Confederate flag School had dress code providing that “attire should not interfere with classroom instruction” and “offending students will be advised to correct their dress problems or . . . parent will be called to bring appropriate clothes or pick up the student.” Five prior incidents at middle school involving display of Confederate flag on clothing, resulting in altercations, classroom disruptions, and physical fights. One incident involved the student in this case and his cousin.

Phillips v. Anderson County Sch. Dist. (cont’d) LAW: Applicable analysis for restriction of student speech is Tinker material and substantial disruption standard. “School authorities are not required to wait until disorder or invasion occurs. If there are substantial facts which reasonably support a forecast of likely disruption, the judgment of school authorities in denying permission and in exercising restraint will normally be sustained.” “Curtailment of a student’s exercise of the right of free speech does not demand a certainty that disruption will occur, but only the existence of facts which might reasonably lead school officials to forecast substantial disruption.”

Newsom v. Albemarle County School Board, 354 F. 3d 249 (4th Cir Newsom v. Albemarle County School Board, 354 F.3d 249 (4th Cir. 2003) (Mary McGowan, Counsel for Defendant): FACTS: Middle school student wore NRA t-shirt to school bearing images of Columbine-like sharpshooters Student followed Assistant Principal’s instruction to turn shirt inside out. Assistant Principal believed graphics on shirt were distracting, that students would associate images with school-related violence, and that images conflicted with the message that “guns and schools don’t mix.”

Newsom v. Albemarle County School Board, (cont’d): FACTS: Parents sought out NRA support which filed suit for infringement of child’s First Amendment right to express his views relating to Second Amendment’s “right to bear firearms.” Dress code prohibited students from wearing “messages on clothing, jewelry, and personal belongings that relate to drugs, alcohol, tobacco, weapons, violence, sex, vulgarity, or that reflect adversely upon persons because of their race or ethnic group.”

Newsom v. Albemarle County School Board, (cont’d): LAW: Dress code unconstitutionally overbroad because it prohibited all messages relating to weapons, i.e., George Washington’s musket, UVA mascot – the Cavalier with two crossed sabers (that damn comma). Non-violent, non-threatening images/messages relating to weapons fall squarely under the Tinker material and substantial disruption standard Frazer and Hazelwood standards permitting schools to regulate student speech inconsistent with educational mission not applicable in this case.

Newsom v. Albemarle County School Board, (cont’d): LAW: While public schools have power to act to prevent problems before they occur, they can only meet the Tinker standard where there is a history of past disruptive incidents arising out of that particular speech. Here, no evidence suggesting clothing containing messages worn by students at this school ever substantially disrupted school operations or interfered with the rights of others. (Evidence insufficient that one middle school student brought a gun to a school picnic and another threatened to bring a gun to school).

An article of DailyProgress.com Bomb plot teenager fights to go home By Liesel Nowak Daily Progress staff writer Friday, April 28, 2006 A 15-year old convicted in an Albemarle County school bomb plot is appealing his case in Circuit Court, where a judge Thursday heard arguments about whether the boy, locked up for three months, should be allowed to go home. Newsome, an Albemarle High School sophomore, and two 13-year old Jack Jouett students were convicted March 28 in Juvenile and Domestic Relations Court of conspiracy to commit murder and conspiracy to use an explosive device to blow up a schoolhouse. Police have said the boys used the Internet to communicate their plans and would have carried out the attacks on Albemarle and Western Albemarle high schools had authorities not intervened.

Summary of Legal Guidelines for Principals First Amendment Freedom of Political Speech Student expression (actual speech, dress, armbands, display of flags or posters, or other methods of expression) regarding political issues, such as the ongoing controversy over immigration, falls into the category of pure political speech which receives the highest degree of legal protection under the First Amendment. Student expression involving political issues is not completely protected by the First Amendment. Schools may restrict such student expression if it results in, or is reasonably likely to result in, a material and substantial disruption to the operation of the school, the educational process or the maintenance of discipline; or which infringes upon the rights of other students to an education or personal safety.

Material and substantial disruption means something more than “undifferentiated fear or apprehension of disturbance,” concern that the speech in question may deviate from the views of another person and start a disagreement or cause a disturbance, or a mere desire to avoid the discomfort and unpleasantness that accompanies an unpopular viewpoint. Material disruption would include students walking out of class, actual threats of physical harm, physical or verbal altercations rising to a violation of the Code of Behavior, speech or display of symbols, flags, or posters during instructional time, and other student expression which disrupts the instructional process, infringes upon the rights of other students to an education and safe learning environment.

“Reasonably likely to result in a material and substantial disruption” usually means that the school has experienced a material and substantial disruption in the past resulting from the particular speech or expression which it seeks to restrict. Evidence of a past disruption must be known to the administrator who seeks to restrict student speech in order to provide a basis for any judgment that the speech or expression is likely to result in a material and substantial disruption. Remember, we do not generally prohibit the wearing of flags, references to national origin, or political subjects on clothing or other forms of student expression. Therefore, restricting clothing or other expressive speech relating to a particular topic, such as the immigration controversy, is indicative of viewpoint discrimination.

School staff should use incidents of political expression as opportunities for civics lessons for students, in order to instruct students on the freedom of expression protected by the First Amendment. As the Supreme Court reminded us in Tinker v. Des Moines Independent Community School Dist., “The classroom is peculiarly the ‘marketplace of ideas.’”

Questions?