In September, Kirk Strang delivered his presentation, Student Speech & the First Amendment, at the WASDA fall conference. He covered a breadth of topics, all of which we’re recapping in this series.
Here’s a quick overview of the major talking points:
- Part 1: How to be Prepared in a Polarized Political Landscape
- Part 2: Student Speech & Expression
- Part 3: Oral or Written Speech
- Part 4: Clothing, Plus Speech Schools Might be Able to Regulate (Sometimes)
- Part 5: Student Handbooks & Codes of Conduct
- Part 5: Student Use of Technology
- Part 6: Religious Speech & Expression
Let’s dive into Part 1 …
How to be Prepared in a Polarized Political Landscape
WHY IS THIS SO IMPORTANT NOW?
Our culture is increasingly politicized. In addition, the often positive features of our diverse culture can be corrupted by more destructive phenomena that can follow from group identity. This can be amplified by incendiary speech (e.g., by candidates for public office) about certain groups, resulting in increased hostility toward members of those groups.
Example: Immigration and border security were a central issue in the latest round of presidential and congressional elections. School administrators can reasonably anticipate that the hostility many Americans seem to have for undocumented immigrants will find its way into their schools. Accordingly, school districts must have the basic means to distinguish between permissible speech and hate speech that would reasonably tend to cause a disturbance/disruption.
This is an election year. And although any election year will present candidates of opposing views, most political commentators have viewed the most recent election as unique in several respects — one of which being the claim or perception that one of the candidate’s speech has been inflammatory, and can incite violent behavior among persons who support him.
Events or statements alleged to be inflammatory (and dangerous):
- The January 6 attack on the U.S. Capitol.
- Then-President Trump’s refusal to condemn white supremacist groups and purportedly excusing their behavior in the “Unite the Right” rally held in Charlottesville, Virginia.
- Trump’s current association with an individual known for white supremacist writings (who at least was permitted to travel on his private plane for campaign stops).
- Claims that the Department of Justice is corrupt and threatening to disband the Department (including the FBI) and replace the career civil servants with political appointees.
- Statements that the new DOJ will be used to settle old scores.
- Contentions that illegal immigrants are eating other people's dogs and cats in Springfield, Ohio.
- Consequences of political rhetoric at school.
- Schools may see an increase in scuffles and physical altercations between students. In these circumstances, it is important for the school district to be certain that both its written word and oral statements establish it is punishing violent behavior, not the point of view of any combatant.
- Students may wish to display political messages through a variety of media. Student groups supporting political parties or candidates will organize and will want to reach out to other students and staff with their message. As noted in these materials, certain forms of outreach and expression can be permissible, while others are not permitted at all or should be discouraged (e.g., distribution of political flyers in the school’s halls is not permitted, regardless of the message’s content or viewpoint).
- Students may seek approval for an activity that is intrinsically political (e.g., after school meetings of the Young Democrats). Administrators will need to be consistent in permitting student political or religious groups to use school facilities under our community use policy on the same basis as any other citizen. However, if students seek approval of their meetings as a student activity, administrators will need to be consistent in making sure the district does not pay for any aspect of the activity and cannot recognize it as a school-sponsored activity (e.g., by paying a salary to the advisor).
- School administrators may see an increase in other forms of expression, stimulated by the highly expressive environment of a presidential election year. For example, students of faith may wish to reach out to other students through a variety of media, may express their faith as part of an assignment for school, or might hold a prayer circle/vigil outside the school before school hours. Administrators need to appreciate that different principles of law govern religious expression in our schools and — while there is some overlap in the procedures districts should employ — there will generally be some differences in how we evaluate religious expression, and certainly differences in how we plan for it.
- Political symbols and signage will accompany any election season. However, some symbols and/or signage are permissible for faculty, staff, or students (e.g., a modest lapel pin supporting a party or candidate), while others either are not or can lawfully be prohibited (e.g., a banner conspicuously hung by a teacher in the front of the classroom).
- Our students will receive the lion’s share of their political information through social media. Consequently, students will be exposed to more extreme political views, and will participate in forums where crude shouting matches substitute for disciplined political dialogue. Our children are being taught by the “Jerry Springer College of Debate,” and at least some will imitate and/or admire this behavior.
- The number of cases in which students or parents allege that a teacher has given a “captive audience” political speech is likely to increase as we approach election day. In addition, there is an increasing likelihood that students witnessing such conduct will make a video and/or audio recording of the teacher, presenting the administrator with clear proof of the misconduct, but obtained by means that violate school policy.
This brings us to the end of Part 1 of the series. Next up, we’ll continue our discussion on student speech and the First Amendment, shifting our focus to student speech and expression.
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