Unit 3 – Student Freedom of Speech

1. Unit 3 – Student Freedom of Speech Not in my school, you don’t. . .

2. Writing a Case Brief • Full Case Name (Court (unless U.S. Supreme Court) Year) (For – Against) • Facts (Relevant facts only) • Procedural History • Question Asked (Yes or No) • Holding (Response and Brief Why) • (Justice) Reasoning • Tests (if any) • Dicta (Useful Language) • (Justice) Useful Concurrences (if any) • (Justice) Useful Dissents (if any) • Your analysis

3. Your Turn! • Write a case brief for Tinker (due Wed.) • Then write an outline of how you believe the “After Tinker” cases should be decided (due Wed.) • Read the hypothetical fact scenarios and be prepared to discuss how those cases should be resolved

4. Colorado mandatory pledge law • Facts: Colorado’s Mandatory Pledge Law requires all public school teachers and students to begin each school day by reciting the Pledge of Allegiance. Teachers and students may opt out of the Pledge on religious grounds or if they are non-citizens, refusal to participate based on any other objection of conscience, including personal political or non-religious beliefs, is prohibited. However, parents may exempt their children from participation if they provide a written objection to the principal of the school.

5. Colorado pledge law – the trial court • Note: 34 states have mandatory pledge laws for students, most enacted after 9-11 • District Court issues a temporary injunction against enforcement of the law, stating it discriminates against teachers because they can’t opt out, and that it may be divisive between students, or between students and teachers • Colorado legislature decides to attempt to modify the law to get the injunction lifted

6. Colorado pledge law – Take 2 • Legislature passes a “weaker” law, written by the ACLU (which was representing the plaintiffs) • New law requires the school to give students an “opportunity” to say the Pledge every day

7. Pennsylvania mandatory pledge • “All supervising officers and teachers shall provide for the recitation of the Pledge of Allegiance or the National Anthem at the beginning of each school day. Students may decline to recite the Pledge of Allegiance and may refrain from saluting the flag on the basis of religious conviction or personal belief. The supervising officer of a school . . . shall provide written notification to the parents or guardian of any student who declines to recite the Pledge of Allegiance or who refrains from saluting the flag.” • What do you think would be an objection to this?

8. Pennsylvania Trial Court says. . . • Unconstitutional. Why? • Requiring parental notification may discourage students from exercising their First Amendment rights • Should students have a right to conceal their First Amendment speech decisions from their parents? • On to the Appellate Court

9. 3d App. Cir. Says. . . • Unconstitutional. The notification provision constitutes viewpoint discrimination for which the state has no compelling interest justifying discriminating against students who opt out • But what about parents? • Does striking down the law violate parents' Fourteenth Amendment liberty interest in the education of their children? • The court conveniently says they don’t reach that issue because of their decision on the prior issue. • Why? Do we do this with other student rights?

10. Florida mandatory pledge law • The pledge of allegiance to the flag . . . shall be rendered by students. . . . The pledge of allegiance to the flag shall be recited at the beginning of the day . . . Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. When the pledge is given, civilians must show full respect to the flag by standing at attention, men removing the headdress, except when such headdress is worn for religious purposes . . . .

11. On appeal, 11th Cir. Says. . . • Trial court held the law was because it denied the student the “right to make an independent decision whether to say the pledge” and that the requirement to stand was facially unconstitutional because it did, in fact, apply to students excused from recitation. • Appellate court affirms: • Requirement to stand is coercion and violates First Amendment • Appellate court reverses: • Parental permission provision is constitutional - The state’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech. Even if the balance among parent, student, and school rights might favor the rights of a mature high school student in a particular situation, such as the right of the student to not participate in the Pledge, that balance does not favor students in a “substantial number of instances. . . involving elementary and middle school students—relative to the total number of students covered by the statute.”

12. Illinois? • The Pledge of Allegiance shall be recited each school day by pupils in elementary and secondary educational institutions supported or maintained in whole or in part by public funds. • Vague. Doesn’t require individual students to do anything. • Conceivably, just reading it over the PA system would satisfy this.

13. Tinker v. Des Moines Ind. Community Sch. Dist. (1969) (7-2) • You’ve done the brief, now explain the case to me. . . • Synopsis of the facts? • Procedural History? • Question Asked/Issue? • Holding? • Rationale/Reasoning? • Dissent?

14. Tinker Analysis • So what is the Tinker test? • Simple to understand? • Simple to apply? • What is a flaw of the practical application of the Tinker test? • Let’s change the facts a bit. . . • A football player tries to forcibly remove one of the armbands? • Students in the school threaten the safety of the armband wearers? • Another student’s parent calls one of the armband wearer’s house, asks to talk to the wearer, and threatens her life? • So why doesn’t the Court mention these facts? • Does Black’s dissent reflect a different view on how schools should be run?

15. Outside of school conduct?Klein v. Smith (ME 1986) • Facts: student gives a teacher the bird off campus and after school. School suspends student for 10 days. Student claims the suspension violates his freedom of speech

16. Klein Holding • Suspension is unconstitutional • Schools lack authority to punish students for conduct outside of school • Under Tinker test, school did not show the speech asserted “materially and substantially” disrupted the operation of the school • Dicta: “The First Amendment protection of freedom of expression may not be made a casualty of the effort to force-feed good manners to the ruffians among us.” • NOTE: RECENT CASES HAVE PERMITTED SCHOOLS TO DISCIPLINE FOR OUT-OF-SCHOOL CONDUCT. Examples?

17. Projected Disturbance?Dodd v. Rambis (S.D. Ind. 1981) • 54 students held a “walkout” in protest of the school’s rules regarding smoking and attendance. The next day, 5 students hand out leaflets calling for another walkout on a specific date and time. They are suspended for 3 days. Students appeal, claiming violation of their freedom of speech.

18. Dodd Holding • Suspension is constitutional • Because of the prior walkout, the school did not just have a “fear,” but rather a disruption of the school by a walkout was likely, so the leaflets created a “material and substantial” danger of disruption

19. More symbolic speechChandler v. McMinnville Sch. Dist. (9th Cir. 1992) • Facts: During a teacher’s strike, the school district hired replacement teachers. Students wore pro-strike buttons in class, including messages like “We want our real teachers back” and “Scab.” The students distributed buttons to other students. When the school told students to remove the buttons and they refused, they were suspended for the rest of the day. They sued, claiming the suspension violated their freedom of speech.

20. Chandler Holding • Suspension was unconstitutional. • Applied Tinker to the button display, which they called a passive symbolic speech. • School district did not show a substantial disruption of school activities • Dicta: “Passive expression of a viewpoint in the form of a button worn on one’s clothing is ‘certainly not in the class of those activities which inherently distract students and break down the regimentation of the classroom.’”

21. T-shirts?Barber v. Dearborn Public Schools (E.D. Mich. 2003) • Facts: Student wears T-shirt with a picture of George W. Bush and text: “International Terrorist.” He wore it while giving a compare/contrast essay comparing Bush to Saddam Hussein. The school told the student to turn the T-shirt inside out, remove it, or go home, saying it might “cause a disruption.” He chose to go home.

22. Barber Holding • Unconstitutional • No evidence of any actual disruption • Dicta: “[S]tudents benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.” • The students says he was expressing his opinion there should be “no war.” Does his shirt express that opinion? Should the district be able to require he express the opinion without a personal attack? • Analysis: Does it really come down to whether the Court believes the school just didn’t agree with the speech?

23. B. Speech and Homosexuality Freedom of Speech and Freedom of Religion versus Non-Discrimination

24. Saxe v. State College Area Sch. Dist. (3d Cir. 2001) • Harassment policy is unconstitutionally overbroad, prohibits speech that is not harassing or discriminating, not vulgar, or towards groups not typically given protection (clothing, physical appearance, social skills, peer group, intellect, hobbies or values) • Isn’t the policy really just forcing you to abide by mom’s rule “Be nice or say nothing at all”

25. Chambers v. Babbitt • School’s conduct was unconstitutional • Even speech considered by some to be offensive is protected under the Tinker test • No finding of material or substantial interference with school • “While the message appears to be one of intolerance, the responsibility remains with the school. . . To maintain an environment open to diversity and to educate and support its students as they confront ideas different from their own.” • The Court expressly stated the desire of the school to make students comfortable is outweighed by constitutional issues

26. Harper v. Poway Unified Sch. Dist. (2007) • Facts: Student was suspended for wearing a T-shirt that said “I will not accept what God has condemned” and “Homosexuality is shameful. Romans 1:27.” He wore the shirts on the school district’s “Day of Silence,” which was inteneded to encourage tolerance of homosexuality, and students had been encouraged to wear T-shirts with pro-gay messages.

27. Harper • Procedural History: Harper sues for injunction preventing school from enforcing its policies. Trial court denies the request for the injunction. Harper appeals to 9th Circuit, which denies the request for the injunction. Harper appeals to USSC, but is no longer a student, so case is moot. His sister asks leave to intervene, USSC denies that, then vacated the 9th Circuit’s opinion. Result? CASE DEAD

28. Harper Result • USSC could have simply denied cert, but instead chose to get rid of the 9th Circuit’s opinion. Why? • 9th Cir.: • (Reinhardt) “Those who administer our public [schools] need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development. Because a school sponsors a “Day of Religion” it need not permit its students to wear T-shirts reading ‘Jews are Christ-Killers’ or ‘All Muslims are Evil-Doers.’” • Dissent (Kozinski): School offered no evidence of disruption, the T-shirt could have provoked educational discussion, prohibiting the T-shirt contradictory to a day of tolerance

29. Zamecnik v. Indian Prairie Sch. Dist. (7th Cir. 2008) • Facts: Nequa Valley High students were prohibited from wearing T-shirts saying “Be Happy, Not Gay.” The school said that would be like wearing a T-shirt saying “Be Happy, Not Christian,” said it interfered with other student’s rights and posed a risk of disruption. Students had intended to wear the shirts on the “Day of Silence.” Students sued, claiming prior restraint on their freedom of speech and religion.

30. Zamecnik Ruling • Unconstitutional only AS APPLIED to the shirt • Very convoluted procedural history – After 2 appeals, appellate court reversed trial court’s refusal to grant an injunction, thus ALLOWING the student (1 has now graduated) to wear the shirt, but leaving the school’s policy in place that forbid “derogatory” speech toward the usual protected classes, including sexual orientation • Regarding other speech, the case was sent back to the trial court for further development of the facts, warning that on further appeal they may “cast the issue in a different light” • What does that mean?

31. Zamecnik (now Nuxoll) Reasoning • (Posner) No “substantial disruption” shown to meet Tinker test • “Heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense.” • High school students should NOT be shielded from the real world “which would be the effect of forbidding all discussion of public issues by such students.” • “People do not have a legal right to prevent criticism of their beliefs or for that matter of their way of life” • Included “a decline in student test scores, an upsurge in truancy, or other symptoms of a sick school” in “substantial disruption” • Is this category getting a lot broader than Tinker intended? • Permitted the shirt only because it was only “tepidly negative” rather than “derogatory or demeaning” • What is the danger of Harper and Zamecnik?

32. Sonkowsky v. Board of Ed. (8th Cir. 2003) • Facts? • School acted constitutionally • “There is no constitutional right for a 9 year old to wear a Green Bay Packers jersey to elementary school” • “Unlikely that Tinker and its progeny apply to public elementary (or preschool) students” • “Assuming Rocky, as a fourth grader, has a constitutionally protected right to free expression at school, that right was not violated when school officials required adherence to directions on school projects”

33. Walker-Serrano v. Leonard (3rd Cir. 2003) • Facts? • School teacher’s conduct was constitutional • “[I]f third graders enjoy rights under Tinker, those rights will necessarily be very limited, elementary school officials will undoubtedly be able to regulate much – perhaps most – of the speech that is protected in higher grades. When officials have a legitimate educational reason. . . they may ordinarily regulate public elementary school children’s speech”

34. M.A.L. v. Kinsland(E.D. Mich. 2007) • Facts? • Result: School’s action unconstitutional. Injunction granted permitting protest • Reasoning: Tinker applied. No showing of disruption or infringement on rights of others by school • Is this an indication the Tinker test starts at middle school, or a reaction to the obviously content-based censorship by the school?

35. D. Confederate flag cases Away down south in the land of cotton, where litigation’s not forgotten. . . Sue away, sue away, sue away, Dixieland.

36. Melton v. Young(6th Cir. 1972) (2-1) • Facts: Southern high school prohibited the Confederate flag and discontinued playing “Dixie” as the school pep song because of racial tensions, including a fight at a football, which had required closing the school twice the prior year. The school dress code also prohibited the wearing of “provocative symbols on clothing.” The Confederate flag was specifically listed as a “provocative symbol”. Student was suspended for wearing a jacket with a Confederate flag.

37. Melton District Court • Dress code is unconstitutionally vague, but suspension AS APPLIED to the Confederate flag jacket was ruled constitutional

38. Melton Appeal • Majority (2-1): Ignored the question of whether the school policy was unconstitutional, said under the facts at the time, the suspension was constitutional under Tinker because of the prior racial tension at the school. • Minority (Miller): School policy was unconstitutionally overbroad, thus suspension was unconstitutional. Also applied Tinker, said the racial tensions were to distant in time and distinct in cause from the “quiet, peaceful and dignified manner” in which the small flag emblem was worn.

39. Castorina v. Madison Co. Sch. Bd.(6th Cir. 2001) • Facts? • Ruling: District Court dismissed the case, saying wearing the T-shirt was not “expressive speech.” • Appellate Court reinstated the case, saying the T-shirts were speech, said Tinker should apply, and sent it back to the District Court for hearing on whether there was a “substantial disruption,” noting that school officials here were engaging in content-based restriction because they permitted Malcolm X shirts. School changed its dress code policy before the second trial.

40. FOS II: Dress Codes I. Clothing cases – Are you really going to wear THAT to school?

41. Tinker • NOTE: Although Tinker specifically said it “does not relate to regulation of the lengths of skirts or the types of clothing, to hair styles or deportment,” many courts still have applied Tinker to school dress codes. • NOTE: The first question for clothing cases is whether the clothing constitutes “expressive speech.” Does the student INTEND to convey speech, which could be UNDERSTOOD by an observer? If not, then it is simply an expression of individuality, which receives far less protection

42. Newsom v. Albemarle Co. Sch. Bd.(4th Cir. 2003) • Facts: Student forced student to quit wearing a National Rifle Association T-shirt showing silhouettes of 3 men holding guns, bearing the text “NRA Sports Shooting Camp.” School policy prohibits “messages on clothing. . . that relate to. . . weapons” • Are these images of sport or violence?

43. Newsom Ruling • Injunction granted to permit wearing the shirt while the school policy was challenged in court • No showing that the prior wearings of the shirt caused any disturbance • The shirt images included depictions of conduct specifically guaranteed by the Second Amendment

44. Bivens v. Albuquerque Pub. Sch.(N.M. 1995) • Facts: • Ruling: Sagging is a fashion trend, not associated with any particular culture, thus not entitled to protection • Even if INTENDED to send a message, not readily UNDERSTOOD to be a message • NOTE: For dress code issues, always first analyze whether the dress is speech or fashion

45. Canady v. Bossier Par. Sch. Bd.(5th Cir. 2001) • Facts: School board decided to start a traditional “Catholic school” style dress code, believing it would reduce disciplinary problems re vulgar & inappropriate clothing. Parents sued, saying it violated student freedom of speech. School board presented evidence that academic performance increased and discipline problems decreased since the policy. District Court dismissed the case, parents appeal

46. Canady Ruling • School policy is constitutional. • Dress code is a legitimate means to improve education as long as it is not directed at censoring expressive speech. • “Although students are restricted from wearing clothing of their choice at school, students remain free to wear what they want after school hours.” • “. . . does not bar the important ‘personal intercommunication among students’ necessary to an effective educational process.” • Court seemed to focus on the school’s intent

47. A New Test • For clothing issues, if you don’t want to use the Tinker “material and substantial disruption” test, try the O’Brien test • O’Brien, a draft-card burning case, has been extended to school dress policies • Under O’Brien, a dress code is constitutional if: • 1) Authorized under state law • 2) Advances an important government interest • 3) Is not related to the suppression of free expression; AND, • 4) Only incidentally restricts free expression in a minimal fashion

48. Canady v. Bossier Par. Sch. Bd.(5th Cir. 2001) (3-0) • School board starts a traditional “Catholic school style” dress code to reduce disciplinary problems with vulgar, inappropriate and gang-oriented clothing. Parents sue, claiming restriction of student freedom of speech. School board gives evidence since the dress code academic performance is up, disciplinary problems down. District court dismisses the case. Parents appeal.

49. Canady Ruling • Dress code is constitutional • “This purpose is in now way related to the suppression of student speech, although students are restricted from wearing clothing of their choice at school, students remain free to wear what they want after school hours.” • “The uniform requirement does not bar the important ‘personal intercommunication’ among students necessary to an effective educational process”

50. Littlefield v. Forney Ind. Sch. Dist.(5th Cir. 2001) (3-0) • Facts: School district adopts mandatory uniform, with an opt-out provision for those with “sincere religious or philosophical objections” to the dress code. Students sue, claiming suppression of their freedoms of speech and religion, and Establishment Clause favoritism of certain religions