Student Rights and Responsibilities in the Era of Polarized Political Landscape

In September’s installment of the WASDA New Superintendents Academy, Kirk Strang presented on the topic of student rights and responsibilities in Wisconsin schools — with a specific focus on student speech and expression.

In part 1 we talked about …

Part 1: Student Speech & Expression

• Seminal case law
• Oral or written speech
• Clothing

In part 2, we;ll be talking about …
Part 2: Student Speech & Expression

• Prayer
• Religious expression
• On- and off-campus speech
• Suggestions regarding what to do, and what NOT to do, for for school administrators and faculty

PRAYER

Student Prayer, Generally

• The First Amendment protects student prayer from government interference and discrimination.
• Public school officials may not show favoritism toward nor hostility against religious expression such as prayer.1
• ”[P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.”2 
  1. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); McCreary Cnty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).
  2. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).

Student Prayer, in Specific Contexts

• In 2020, the U.S. Department of Education issued Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.
• The Department addressed the following contexts:
  1. Prayer During Non-instructional Time.
     
     “Students may pray when not engaged in school activities or instruction, subject to the  same rules designed to prevent material disruption of the educational program that are  applied to other privately initiated expressive activities.” 
  2. Organized Prayer Groups and Activities.
     
     “Students may organize prayer groups, religious clubs, and "see you at the pole" gatherings before school to the same extent that students are permitted to organize other noncurricular student activities groups… 
     
     [W]here student groups that meet for nonreligious activities are permitted to advertise or announce their meetings—for example, by advertising in a student newspaper, making announcements on a student activities bulletin board or public address system, or handing out leaflets—school authorities may not discriminate against groups who meet to engage in religious expression such as prayer.” 
  3. Teachers, Administrators, and Other School Employees.
     
     “When acting in their official capacities as representatives of the State, teachers, school administrators, and other school employees are prohibited by the First Amendment from encouraging or discouraging prayer, and from actively participating in such activity with students.”
  4. Moments of Silence.
     
     “If a school has a "moment of silence" or other quiet periods during the school day, students are free to pray silently, or not to pray, during these periods of time.”
  5. Prayer/Religious Expression in Class Assignments.
     
     Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious perspective of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school.”
  6. Student Assemblies and Noncurricular Events.
     
     “Student speakers at student assemblies and noncurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious perspectives. Where student speakers are selected on the basis of genuinely content-neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content, and may include prayer.” 
  7. Prayer at Graduation.
     
     “School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely content-neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content and may include prayer.
     
     To avoid any mistaken perception that a school endorses student or other private… school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker's and not the school's speech.”

RELIGIOUS EXPRESSION

Student Religious Expression

1. Religious Literature.
   
   “Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities.
   
   Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on non-school literature generally, but they may not single out religious literature for special regulation.”
2. Student Dress Codes and Policies.
   
   “Schools, however, may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation… Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages. Religious messages may not be singled out for suppression, but rather are subject to the same rules as generally apply to comparable messages.” 

Summary of Speech Schools Might Be Able To Regulate, (Sometimes)

On-Campus Speech:

1. Indecent, lewd, vulgar, obscene, or plainly offensive.
2. Reasonably construed to promote illegal drug use. 
3. Part of the curriculum or school-sponsored activities.
4. Conveys a true threat.
5. Materially disrupts classwork, involves substantial disorder, or invades the rights of others.

Off-Campus Speech:

1. Involves serious/severe bullying or harassment that targets particular individuals.
2. Threatens students or teachers.
3. Breaks rules related to lessons, writing papers, using computers, or participating in other online school activities.
4. Breaches school security devices, including material maintained within school computers.

HYPOTHETICAL SCENARIOS

(Bold) Other Speech- & Expression-Related Hypothetical Scenarios
Displaying Black Lives Matter, Blue Lives Matter, or Confederate Flags on vehicles in school parking lot.
Disparages teacher who privately endorses a different political candidate.
Organizes walkouts protesting COVID-19 mask policies.

WHAT TO DO AND NOT TO DO

Do:

• Consider whether off-campus speech is directed at individuals, used district devices, occurred during school hours, mentions the district by name, or substantially disrupts the school environment before acting.
• Review athletic/extracurricular codes of conduct and district policies regulating off-campus speech in light of the Mahanoy decision.
• Enforce discrimination, harassment, and bullying policies when speech creates a hostile educational environment.
• Consider past instances of dress code violations and/or any responses to consistent violations in similar districts to forecast whether substantial disruption is likely under the Tinker test.

 Do Not:

• Adopt policies in response to hot-button issues that may be viewpoint discriminatory.
• Prohibit speech based on a belief that substantial disruption will occur without being able to show a history of such disruption or significant tension.

This brings us to the conclusion of this series. If you missed part 1, you can read it here.