Student Speech & Expression

In this series, we’ve focused on the following topics from Kirk Strang’s legal update presentation at the 2023 CESA 10 Superintendent Meeting …

1. Pupil Discipline & Expulsion
2. Expulsion — the Unwritten Rules, Politics, & Stray Thoughts
3. Disciplinary Alternatives to Expulsion
4. Nonrenewal Teacher & Administrator Contracts
5. Gender Identity
6. Student Speech & Expression

In the final installment of the series we’re covering student speech and expression, with a focus on the following:

• Supreme Court Trilogy
• Student Speech
• Building Your Defense
• Oral or Written Speech
  • Off-campus Student Speech
• Clothing
  • Student Clothing Case Law
• What to Do & What Not to Do

SUPREME COURT TRILOGY

1. The “Supreme Court Trilogy” on student speech:
   1. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Expression is protected; just as speech is protected. Speech that materially disrupts classwork, involves substantial disorder, or invades the rights of others is not protected.
   2. Bethel School District v. Fraser, 478 U.S. 67 (1986). Vulgar, lewd, obscene or offensive speech is not protected.
   3. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). School-sponsored speech which relates to legitimate pedagogical concerns is not protected.
   4. *Recent addition to the trilogy — Morse v. Frederick, 551 U.S. 393 (2007). Speech that promotes illegal conduct is not protected.

2. If speech does not meet one of the preceding exceptions, school districts may generally justify regulations on speech or expression if it:

   1. Materially disrupts classwork, 
   2. involves substantial disorder, or 
   3. invades the rights of others.

   Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

STUDENT SPEECH

1. Content and characteristics of “speech,” protected and not protected:
   1. Does it relate to ideas, matters of public concern, and the like?
   2. Does it offend policy e.g., bullying, harassment, or discrimination?
   3. Is it sent or spoken on school grounds, school time, or while under supervision of school personnel?
   4. Is the printed work directed at or meant to be consumed by an audience that is at school?
   5. Is it foreseeable that the communication will be republished or circulated at school?
   6. Is the speech illegal or does it encourage/endorse illegal conduct? 
   7. Is the speech obscene?

BUILDING YOUR DEFENSE

1. Conduct fact finding on student body and faculty observations and opinions.

   We should ask ourselves: what do the answers tell us about what will be disruptive going forward?

   1. What behavior, symbols, words, and slogans reasonably tend to stir passions and promote conflict and disruption?
      1. Words that are deemed “fighting words” or that otherwise do not merit Constitutional protection.
      2. Symbols that are intrinsically so hostile, that the symbol itself is disruptive. For example, swastikas or the symbol of the SS are tantamount to telling members of certain groups that the person wearing the symbol supports their death and, perhaps, is prepared to take steps to kill them.
   2. What speech or expression truly disrupts classwork? Teachers aren’t simply allowing their classes to be commandeered by students, so we have to consider what speech or conduct:
      1. Violates the class rules. Teachers and schools can seriously restrict speech and expression in classroom settings because it is relatively easy to prove that an advocate speaking out interferes with class instruction and dialogue. Still, a fair number of teachers do not have viewpoint neutral class rules restricting expression in the interest of delivering the curriculum.
      2. Is so impactful and pervasive that it is disruptive for the entire building.
      3. Example: Threats.

2. Time, Place, and Manner.

   These are often the factors we consider in determining whether speech and/or expression are protected. While other factors apply, the school district’s strength to weakness in regulating speech and expression looks something like this:

   1. In class, tight curriculum
   2. In class, more flexible curriculum that might accommodate speech or expression in, e.g., a term paper
   3. In the hallway during passing time
   4. On campus, school day
   5. On campus, after school day during activity
   6. On campus, public access
   7. Off campus, student in activities that signs code
   8. Off campus, student not in activities

3. Discrimination.

   Speech and expression can be regulated in certain circumstances, provided that the rule and its application are viewpoint neutral.

4. Creating or Compounding Risks To Safety. 

   This is an area where we have to make distinctions and reflect those distinctions in our policies and handbooks.

   *Example: Guns. 

   One might argue that a school district can regulate speech about guns if the speech celebrates indiscriminate shootings, makes threats, implies capacity to use guns against others, and other more dangerous statements.

   Similarly, one can also argue that statements about supporting the Second Amendment, images of guns with, e.g., deer to suggest a love of deer hunting and a more “sportsmen’s” perspective on the use of guns, and freedom to own guns are protected speech.

Oral or Written Speech

OFF-CAMPUS STUDENT SPEECH

1. The U.S. Supreme Court has identified three features of off-campus speech, “that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech … [which] diminish the strength of the unique educational characteristics that might call for special First Amendment leeway:”
   1. Schools should not stand in loco parentis; when off campus, students are under parent supervision.
   2. Schools regulating on- and off-campus speech would cause a 24-hour day restriction on student speech.
   3. Schools should serve as “nurseries of democracy” in protecting student expression, even if unpopular.

2. Types of off-campus speech that might be deemed permissible for schools to regulate in the future:

   1. Engaging in serious/severe bullying or harassment that targets particular individuals;
   2. Threatening students or teachers;
   3. Failing to follow rules regarding lessons, writing papers, using computers, or participating in other online school activities; and
   4. Breaching school security devices, including material maintained within school computers.

   Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038 (2021). 

3. Bullying.

   1. Certain off-campus behavior warrants school regulation, namely “serious or severe bullying or harassment,” that invades the rights of others.
   2. Bullying speech is not limited to speech which directly bullies others. Rather, it includes speech that encourages direct bullying by others.
   3. In Doe v. Hopkinton Public Schools, the First Circuit Court of Appeals held that student speech and conduct which encouraged direct bullying by others was not protected under the First Amendment.
   4. Speech that constitutes, encourages, or contributes to bullying is not constitutionally protected.

   Doe v. Hopkinton Public Schools, 19 F.4th 493 (1st Cir. 2021).

Clothing

STUDENT CLOTHING CASE LAW

1. The Muller Test (overruled).

   In Muller v. Jefferson Lighthouse School, the Seventh Circuit held that the Tinker test did not apply in non-public forums (such as schools) where the speech restriction was viewpoint neutral.

   Instead, the Muller test asked whether the restriction on student expression was reasonably related to legitimate pedagogical concerns. 

2. N.J. by Jacob v. Sonnabend.

   In 2022, the Seventh Circuit overruled Muller. The Court asserted that speech restriction in schools should be governed by the Tinker test, even when the restriction is viewpoint neutral. 

   In N.J. by Jacob v. Sonnabend, two students, N.J. and A.L., who were enrolled in different schools, wore shirts bearing images of guns. Both schools decided that the shirts violated their respective dress code policies. The students sought a permanent injunction against the enforcement of the dress code policies on the basis that the prohibitions violated their First Amendment free speech rights. 

   The district court initially found in favor of the Districts. However, on June 15, 2022, the Seventh Circuit Court of Appeals vacated and remanded the district court’s decision to be considered under the Tinker Test.

   N.J. by Jacob v. Sonnabend, 37 F. 4th 412 (7^th Cir. 2022).

3. Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2018). 

   A student wore three t-shirts to school: one reading “Celebrate Diversity” with various types of guns depicted, another reading “LOVE” spelled out in guns, and a final shirt reading, “IF GUNS KILL PEOPLE, I GUESS PENCILS misspell words CARS drive drunk & SPOONS make people fat.” The student sought injunctions against the school district’s prohibition of the t-shirts. 

   Holding/Reasoning: The t-shirts did not create a substantial disruption under Tinker.

   1. News media coverage stemmed from the defendant’s decision to censor the shirts, not the shirts themselves.
   2. The record did not indicate that students felt threatened by or anxious about the shirts.
   3. The district provided no proof that classrooms were disrupted.
   4. Staff members’ stated concerns related to school shootings in the country were unreasonable given that the shirts did not promote gun violence.

4. Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874 (7^th Cir. 2011). 

   The Seventh Circuit held that a district could not prohibit a t-shirt with anti-LGBTQ sentiments (i.e., “Be Happy, Not Gay”) while promoting t-shirts for an event designed to bring attention to the mistreatment of the LGBTQ community (i.e., “Be Who You Are”). 

   Holding/Reasoning: Although the t-shirt could result in “hurt feelings” amongst the LGBTQ community, the shirt did not amount to a substantial disruption, and was thus protected by the First Amendment.

   1. Applying Tinker, the court rejected the district’s argument that incidents years prior allowed school officials to forecast a substantial disruption. The court found that evidence of those incidents were unreliable and negligible.
   2. The court rejected the district’s argument that the prohibition was warranted because it protected the student wearing the “Be Happy, Not Gay” t-shirt from retaliatory harassment. The court identified that the Tinker test could not be met with a “heckler’s veto” argument.

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 end of our series on Kirk’s legal update at the 2023 CESA 10 Superintendent Meeting.

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