1 st Amendment Rights Freedom of Expression

1st Amendment RightsFreedom of Expression Presented by: Elena Kirkendall and Lana Racine Legal/Ethical-2004

Student Responsibilities • To respect the rights of other individuals and to express disagreement in a manner which does not infringe upon the rights of others • To act in a manner which preserves the dignity of patriotic observances • To respect the religious beliefs of others • To plan for, seek approval of, and conduct activities which are consistent with the educational objectives of the school

Privacy and Property Rights • To maintain privacy of personal possessions, unless appropriate school personnel have reasonable cause to believe a student possesses any object or material which is prohibited by law or School Board policy • To attend school in an educational environment in which personal property, including electronic property, is respected.

Privacy and Property Responsibilities • To attend school and other School Board activities without bringing materials or objects prohibited by law or School Board policy, or other items that will detract from the educational process • To respect the property rights of the public-at-large, as well as those of individuals, and to refrain from destruction or modification of, or damage to, such property

Publications. Student Rights • To participate in the development and distribution of publications as part of the educational process

Student Responsibilities • To refrain from publishing libelous and obscene materials, or materials inconsistent with the school’s basic educational goals • To seek full information on the topics about which they write • To observe normally accepted rules for responsible journalism under guidance of the family advisor

Code of Appearance • Shoes without closed heels or back straps shall not be worn. • Halter-tops, tank tops, backless tops, top with thin or no strap, or top that show midriff or expose the body are prohibited. • See-through or mesh garments shall not be worn without appropriate undergarments. • Form-fitting or overly tight clothing shall not be worn without appropriate outer garments.

Properly hemming outer garments such as shorts, divided skirts, and dresses may be worn, provided they are not disruptive or distractive. • Clothing and accessories shall not be worn if they display profanity, violence, lewd, or obscene messages, sexually suggestive phrases, or advertisements, phrase or symbols of alcohol, tobacco, drugs, or other symbols phrases or advertisements that would be offensive to common property or decency. • Head coverings, including, but not limited to, caps, hats, bandannas, hair curlers, and/or sunglasses, shall not be worn on school property, unless required by a physician or authorized by school personnel. • The waistband of shorts, slacks, skirts, and similar garments shall not be worn below the hips. Underwear, midriff and back may be exposed.

Disciplinary Actions • 1st Offense- Phone call to the parents and parents will be sent a copy of the General Code of Appearance along with a letter about the code. • 2nd Offense- Principal/designee assigned in-school suspension/detention and phone call to parents • 3rd Offense- Parent/child dress code contract will be written. • 4th Offense- Dress code contract violations may be defined as a class 2.23 offense and may warrant disciplinary action as outlined under Class II offenses.

Hazelwood School District v. Kuhlmeier(1988) After a school principal removed two pages containing articles, among others, on teenage pregnancy and the impact of divorce on students from a newspaper produced as part of a high school journalism class, the student staff filed suit claiming violation of their First Amendment rights. The principal defended his action on the grounds that he was protecting the privacy of the pregnant students described, protecting younger students from inappropriate references to sexual activity and birth control, and protecting the school from a potential libel action. The Supreme Court held that the principal acted reasonably and did not violate the students' First Amendment rights. A school need not tolerate student speech, the Court declared, "that is inconsistent with its 'basic educational mission,' even though the government could not censor similar speech outside the school." In addition, the Court found the newspaper was part of the regular journalism curriculum and subject to extensive control by a faculty member.

TheSupreme Court held that the principal acted reasonably and did not violate the students' First Amendment rights. A school need not tolerate student speech, the Court declared, "that is inconsistent with its 'basic educational mission,' even though the government could not censor similar speech outside the school." In addition, the Court found the newspaper was part of the regular journalism curriculum and subject to extensive control by a faculty member. The school, thus, did not create a public forum for the expression of ideas, but instead maintained the newspaper "as supervised learning experience for journalism students." The Court concluded that "educators 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." The Court strongly suggested that supervised student activities that "may fairly be characterized as part of the school curriculum," including school-sponsored publications and theatrical productions, were subject to the authority of educators. The Court cautioned, however, that this authority does not justify an educator's attempt "to silence a student's personal expression that happens to occur on the school premises.

Can students wear swastikas or other inflammatory signs on their clothing? • Tinker v. Des Moines Independent Community School District (1969) • Bivens v. Albuquerque Public Schools (1995) • Castorina v. Madison County School Board( 2000) • Boroff v. Van Wert City Board of Education (2000) • Phillips v. Anderson County School District Five (1997)

Tinker v. Des Moines Independent Community School District • The strongest argument made during the trial, on behalf of Tinker, was that the armbands caused no (substantial disruption or material interference) with the learning environment of others. (Fear) or (Apprehension) are not sufficient reasons for schools to be able to infringe on students’ rights to free speech. In addition, another important issue in the Tinker case was the (inconsistency) in which restrictions were applied to students. In other words, the black armbands were (prohibited) while other symbols, such as pins, were not.

Bivens v. Albuquerque Public Schools • The school in this case adopted their dress code in response to (gang activity). One reason Bivens gave for wearing the pants was (culture), but since his fellow students did not understand his message, the courts decided to (dismiss the case). Therefore, not all conduct, including one’s style of clothing, can be labeled (protected speech).

Castorina v. Madison County School Board • After the students were suspended for wearing T-shirts with the confederate flag on them, they argued in court that first, the school had allowed other students to wear T-shirts with (symbols). Second, they argued that they did not cause a (disruption) in school and third, their speech could in no way be considered (school-sponsored). The court ordered the case be heard because if the school is to put a ban on racially divisive symbols, it has to apply the ban consistently).

Boroff v. Van Wert City Board of Education • Boroff claimed that the school violated his (First Amendment Rights) by not allowing him to wear Marilyn Manson T-shirts. The shirt primarily in question was said to go against the school’s educational mission in two ways: 1) (mocked the religious values of others) and 2) offended others).

Phillips v. Anderson County School District • School officials should not read this decision as a license to ban the wearing or display of symbolic clothing or jewelry by students simply because officials do not like the message conveyed by the symbol or because the symbol is controversial. The decision should be based on (caused disruption). Also, beware of situations where a symbol, even though it might cause disruption, should not be banned. If students harassed for wearing a symbol (such as the Star of David), then proper response would be to discipline the harassing students, not the student who wears the pendant. Finally, as the Supreme Court stressed in Tinker, school officials can regulate or ban expressive conduct by students only if their forecast of disruption rests on (substantive facts), not on mere speculative fear of disruption.

Key Factors • Substantial disruption or material interference • Consistency • Gang activity • Protected speech • Mocked the religious values of others • Offended others

The First Amendment provides some, but not complete, protection for students in a school setting. The Supreme Court in Tinker stated that students do not abandon their right to expression at the schoolhouse gates, but that prohibition of expressive conduct is justifiable if the conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.

Suggestions for Dress Codes • Consult your school district’s dress code. • Policy should focus child and school safety concerns. • Consider including justifications in school dress code policy, such as decreasing criminal activity (gang wear), classroom discipline, peer pressure, etc. • Allow some variety and flexibility in the dress code policy. • Be able to justify the action by demonstrating the link between certain kind of disruptive behavior • Provide students with notice of the dress code policy • Strive to maintain empirical evidence, such as reduction in criminal activity and discipline reports, in order to establish the effectiveness of the dress code policy. • Update school dress code on a consistent basis.

References • Student Dress Codes: Constitutional Requirements and Policy Suggestions www.modrall.com • Freedom of expression in schools and minor’s 1st Amendment Rights www.aclj.org/issues/sturght.asp • American Civil Liberties Union of Maryland www.aclu-md.org • The American School Board Journal: August 1998 School Law www.asbj.com/199808/0898schoollaw.html

1 st Amendment Rights Freedom of Expression