In this series, we’re covering all of the major talking points from Kirk Strang’s presentation, Student Speech & the First Amendment, which he presented in September at the WASDA fall conference.
In Part 1 of the series, we focused on how to be prepared in a polarized political landscape, and why this is so important now.
In this installment of the series, we continue our discussion on student speech and the First Amendment, placing our attention squarely on student speech and expression.
Major talking points include:
- Basic Principles
- Seminal Case Law
- Building Your Defense
BASIC PRINCIPLES
- School officials may generally prohibit or limit student speech that:
Is indecent, lewd, vulgar, obscene, or plainly offensive.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986). (Schools have an “interest in teaching students the boundaries of socially appropriate behavior.”)
Could reasonably be construed to promote illegal drug use.
Morse v. Frederick, 551 U.S. 393 (2007). (Schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”)
Can reasonably be perceived as part of the curriculum or school-sponsored activities (e.g., speech in a school-sponsored newspaper).
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). (Schools may exercise editorial control over school newspaper “so long as their actions are reasonably related to legitimate pedagogical concerns.”)
Conveys a true threat (i.e., a reasonable person would believe the speech was intended to cause present or future harm to another or loss to property, considering surrounding circumstances).
Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021) (citing Virginia v. Black, 538 U.S. 343 (2003)).
If one of these exceptions does not apply, a school district may prohibit speech/expression that:
- Materially disrupts classwork,
- Involves substantial disorder, or
- Invades the rights of others
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
A school district may generally restrict speech if it carries the imprimatur of the school district.
In Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), the U.S. Supreme Court considered the authority of a school district to control a high school student newspaper’s content. The school newspaper was sponsored by the district.
The Supreme Court concluded that the public “might reasonably perceive [the students’ content] to bear the imprimatur of the school,” holding that:
[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
SEMINAL CASE LAW
- The Tinker Test.
- Students on campus (e.g., in class, at the cafeteria, on an athletic field, or during authorized campus hours) have free speech rights, “even on controversial subjects,” unless the speech or expression “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school” or invades “the rights of others.”
- NOTE: The test left open whether the same test would apply to off-campus speech.
- N.J. by Jacob v. Sonnabend, 37 F.4th 412 (7th Cir. 2022).
- In 2022, the Seventh Circuit held that speech restriction in schools should be governed by the Tinker test, even when the restriction is viewpoint neutral.
- This decision overruled prior case law that established the Muller test (asking whether the restriction on student expression was reasonably related to legitimate pedagogical concerns).
BUILDING YOUR DEFENSE
- Conduct fact finding to determine what students, faculty, and staff find disruptive.
- What behavior, symbols, words, and slogans reasonably tend to stir passions and promote conflict and disruption?
- Words that are deemed “fighting words” or that otherwise do not merit Constitutional protection.
- Symbols that are intrinsically so hostile, that the symbol itself is disruptive (e.g., swastikas or the symbol of the SS).
Determine minimum, objective standards for disruptive speech or expression:
NOTE: This inquiry has two elements. The school district must determine what things will be disruptive before they take place, so that they can be prohibited. The second group captures speech/expression that has caused or is causing disruption (where the district’s focus may be on further monitoring, rule modification, and/or disciplinary code assessment).
- 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.
- Is so impactful and pervasive that it is disruptive for the entire building (e.g, threats).
Time, Place, and Manner Can Determine if Speech/Expression is Protected.
These variables affect analyses of students’ First Amendment rights:
- In class, tight curriculum.
- In class, more flexible curriculum that might accommodate speech or expression in, e.g., a term paper.
- In the hallway during passing time.
- On campus, school day.
- On campus, after school day during activity.
- On campus, public access.
- Off campus, student in activities that signs code.
- Off campus, student not in activities.
Discrimination.
Speech and expression can be regulated in certain circumstances, provided that the rule and its application are viewpoint neutral.
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.
NOTE: Gun apparel generally suggests these rules of thumb. The question presented is whether a reasonable person would find the speech/expression so frightening or menacing, that the speech/expression disrupts their educational environment. Generally, apparel that merely depicts guns, presents guns in a sportsmen’s or hunting environment, reveres a gun’s capability, or references the Second Amendment itself would be protected speech/expression. However, speech/expression that threatens or intimates that a gun will be used at the school, a depiction of a gun accompanied by a “hate list” of students, images of guns with language celebrating gun violence, particularly when the statement implicates members of protected classifications, would be prohibited or subject to restriction.
Next up, in Part 3 of the series, we continue diving into student speech and the First Amendment, this time focusing on the topic of oral or written speech.
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