This past September, at the WASDA fall conference, Kirk Strang shared his presentation on Student Speech & the First Amendment. We’ve been covering all of the major talking points of the presentation here in this series.
Here’s what we’ve covered thus far:
- Part 1: How to Be Prepared in a Polarized Political Landscape
- Part 2: Student Speech & Expression
- Part 3: Oral or Written Speech
In this installment of the series, we’re diving into student speech and the First Amendment with a focus on clothing, as well as speech schools might be able to regulate (sometimes).
Details include:
- Clothing & Case Law
- Speech Schools Might be Able to Regulate (Sometimes) for On- & Off- Campus Speech
Let’s dive in …
CLOTHING & CASE LAW
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.
- News media coverage stemmed from the defendant’s decision to censor the shirts, not the shirts themselves.
- The record did not indicate that students felt threatened by or anxious about the shirts.
- The district provided no proof that classrooms were disrupted.
- Staff members’ concerns related to school shootings in the country were unreasonable given that the shirts did not promote gun violence.
Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874 (7th 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.
- 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 was unreliable and negligible.
- 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.
Summary of Speech Schools Might Be Able To Regulate (Sometimes)
ON-CAMPUS SPEECH
- Indecent, lewd, vulgar, obscene, or plainly offensive.
- Reasonably construed to promote illegal drug use.
- Part of the curriculum or school-sponsored activities.
- Conveys a true threat.
- Materially disrupts classwork, involves substantial disorder, or invades the rights of others.
OFF-CAMPUS SPEECH
- Involves serious/severe bullying or harassment that targets particular individuals.
- Threatens students or teachers.
- Breaks rules related to lessons, writing papers, using computers, or participating in other online school activities.
- Breaches school security devices, including material maintained within school computers.
This brings us to the end of Part 4 or the series. Next up, we continue our conversation on student speech and the First Amendment with a focus on student handbooks and codes of conduct.
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