ED 575 Students’ Rights. Students’ Rights. Government, including public schools, must have a compelling justification to curtail citizen’s expression. Balance. Students do not shed their rights at the school house steps But
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ED 575Students’ Rights
Government, including public schools, must have a compelling justification to curtail citizen’s expression.
Students do not shed their rights at the school house steps
Public schools are not automatically coextensive with the rights of adults in other settings
What constitutes expression?
Only when conduct is meant to communicate an idea that is likely to be understood by the intended audience is it considered expression for First Amendment purposes.
Defamatory, obscene, inflammatory, lewd, vulgar, and expression that promotes illegal activity are not protected in the public school context.
Bethel School District no. 403 v. Fraser
A student using a sexual metaphor in a nominating speech during a student government assembly
Sensibilities of fellow students must be considered
Expression that agitates, threatens, or incites an immediate breach of peace from speech that conveys ideas and stimulates discussion.
Threats – things to look at:
1. Reaction of the recipient and listeners
2. Past threats
3. How it is communicated
4. Reason to believe the speaker would engage in violence
Morse v. Frederick
Students can be disciplined for expression reasonably viewed as promoting or celebrating drug use, incitement to lawless behavior is not required.
Private requires substantial constitutional protection
Public – restrictions cannot be imposed
Nonpublic – compatible with the intended governmental purpose
Limited Public – student activities program
Hazelwood School District v. Kulhmeier
Censorship must be based on legitimate pedagogical concerns
Student expression appearing to bear the school’s imprimatur can be censored
Tinker v. DeMoines Independent School District
Fear of a disturbance is not enough to overcome the right to freedom of speech
More than a mere desire to avoid the discomfort that accompanies an unpopular viewpoint
It must: materially and substantially interfere with the operation of the school
A free speech society prefers to punish the few who abuse the rights of speech after they break the law rather than throttle them and all other beforehand.
Students cannot be disciplined for materials distributed off school grounds…
At a school sponsored event
Threatens the educational process
Discipline based on intruding on the school’s legitimate function of inculcating manners and habits of civility
Discipline based on prevention of other students’ rights or a substantial disruption of school activities
Limited open forum for non-curricular student groups to meet during non-instructional time, access cannot be denied based on the religious, political, philosophical, or other content of the groups’ meetings
If you allow one, you must provide equal access for all
Salt Lake City – denied to all non-curricular groups. The GSA said it was a curriculum-related group.
California district – allowed non-curriculum related groups, but denied GSA and said it was a curriculum-related group, but the court said they could not limit access just because it was labeled curriculum-related.
Attire can be regulated if:
Promotes illegal behavior (gangs, drugs, etc.)
Must have a rationale for restrictions: enhancing learning or preventing disruptions
(question: is the disruption created by the student attire or the teacher’s/administrator’s reaction to the attire?)
Privilege not a Right
A hearing for students to defend their actions is always advisable when denying participation
Off-campus, off-season conduct – permissible
Random drug testing – permissible
Discipline cannot be arbitrary, discriminatory, or excessive