Political Discourse in Public Schools: Complex Issues Without Simple Rules Presenters: Donald E. Budmen, Esq. Sara E. Visingard, Esq. Ferrara Fiorenza PC Harris Beach PLLC Dr. Lorna Lewis Dr. L. Oliver Robinson Plainview-Old Bethpage CSD Shenendehowa CSD Jordan Rosner Plainview-Old Bethpage CSD Moderator: Thomas M. Volz, Esq. Law Offices of Thomas M. Volz, PLLC FIRST AMENDMENT “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble , and to petition the Government for a redress of grievances.” Supreme Court: “The loss of First Amendment freedoms, for even minimal periods of time, normally constitutes irreparable injury .” Elrod v. Burns , 427 U.S. 347, 373 (1976). (quoted by Second Circuit: federal court encompassing NYS in 2008) 1
Application to Schools • Supreme Court applies free speech rights to students in Tinker v. Des Moines Indep. Cmty. Sch. Dist. in 1968. • Case sets standard by which schools operate today: students may express their opinions if done “ without materially and substantially interfering ” with school operations and without intruding on the rights of others. • These rights have been clarified and narrowed with respect to school- sponsored speech, Internet speech, and other circumstances. Application to Schools • An analysis of student speech rights depends on context, i.e., forum. Three types of forums : 1. Traditional public forums: parks, sidewalks. Fewest restrictions on speech. 2. Limited public forums: most public schools. Property traditionally opened to a segment. Can restrict time, place and manner. Restrictions on speech must serve a compelling interest. School may consider the appropriateness of a topic (subject matter) but may not favor a particular viewpoint. 3. Nonpublic forums: jails, air bases. Restrictions upheld as long as they are reasonably related to a legitimate government purpose. 2
Supreme Court Limits on School Speech Bethel v. Fraser, 478 U.S. 675 (1986) • Vulgar and offensive terms in public discourse Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988) • School sponsored newspaper Morse v. Frederick , 551 U.S. 393 (2007) • Promoting illegal drug use Right to Protest: On-Campus Ask: Is it reasonably likely that a protest would result in a material and substantial disruption to school operations? • School hours: likely • After school hours: less likely After school hours, the forum issue is more relevant than disruption. • School may limit free speech on its property if limitation serves a compelling interest. Examples: vulgarity, obscenity, hate speech, threats, incitement to violence or defamation. • Topic inappropriate to age/maturity of students? 3
Right to Protest: Off-Campus • Setting impacts off-campus protests. • Where an event is related to the school, school officials maintain reasonable control over student speech. For example, the Code of Conduct applies to protests at school- o sponsored events, such as athletics contests May also extend to students where their conduct impacts the school o environment as required by DASA Caution: A culture of civility v. the First Amendment o Recent Examples: Walkouts, 2018 What happens when I agree with the students? • Problem: You may agree with students today but may not agree with their message on different topics tomorrow. • Need to respond even-handedly to student protest and not discriminate or make judgments based on viewpoint. Choices: 1. Make “protest” a school-sponsored event: educate on school safety, commemorate victims. Focus on relationship to school 2. Partner with student leaders to eliminate disruption: after-school, lunch 3. Sponsor community forum to learn from each other 4. Non-school sponsored community forums/protests 5. Warn in advance of attendance issue, likelihood of consequences 6. Incorporate lessons on civil disobedience, civics 7. Encourage use of school paper and public media (print and social) 4
Recent Examples: Walkouts, 2018 How can we ensure the safety of students, if we can’t redirect their walkout? • Partner with local law enforcement to inform them of possible walkouts, so they can keep traffic at bay or be mindful when they see a large number of students around during the school day. Recent Example: Taking a Knee, 2016 to present • Student expression in this fashion may only be regulated to the extent the expression may generate a material and substantial interference in a school environment or present some kind of danger. • Disruption of this level rarely occurs, making disciplinary action against students in these situations difficult to justify. 5
Recent Example: Taking a Knee, 2016 to present • Common belief: protesting while in uniform, students are speaking on behalf of the school. • Supreme Court: “We think that secondary-school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits. . . . The proposition that schools do not endorse everything they fail to censor is not complicated.” Board of Educ. of Westside Cmty Schs v. Mergens By and Through Mergens , 496 U.S. 226, 250 (1990). • Coach CAN discipline for activity that disunites a team Wildman v. Marshalltown Sch. Dist. , 249 F.3d 768 (8th Cir. 2001) Recent Example: Taking a Knee, 2016 to present How do we respond to the local veteran group that finds school inaction unacceptable? • A (difficult) conversation outlining the requirement to respect student speech. • An idea that sometimes resonates with individuals: Rosa Parks was not protesting public transportation; students taking a knee are not protesting the flag. 6
Recent Example: Taking a Knee, 2016 to present What happens when our COACH takes a knee, too? • More nuanced question. Employees have free speech rights in certain circumstances. First: Garcetti v. Ceballos , 547 U.S. 410 (2006) – is the speech made pursuant to the coach’s professional duties? If not: • Two part test from Supreme Court: • (1) Whether the discourse is of public nature. • (2) If yes: Balancing test that weighs the teacher’s First Amendment rights against the school’s interest “in promoting the efficiency of the public services it performs through its employees.” Does the speech “so threaten” district’s “effective operation” that disciplining the teacher would be justified. • Hesitate to discipline a coach that participates with team in student-led protest. • Meet with the coach to discuss his communications with his players and decide whether students would feel forced to also “take a knee.” Federal Circuit Walk Out Cases Madrid v. Anthony , 510 F.Supp.2d 425 (S.D. Tex. 2007) Students' response to the immigration issue by walking out of school substantially interfered with the work of the district. Corales v. Bennett , 567 F.3d 554 (9 th Cir. 2009) The “incidental effect the rule has on the students' expressive conduct is permissible, and the students' First Amendment rights have not been infringed by punishing the act of leaving campus.” 7
Where Do We Go From Here? 8
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