Student Activism: The Past Visits the Present ‐ Again Thomas M. Volz, Esq. Howard M. Miller, Esq. Law Offices of Thomas M. Volz, PLLC Bond, Schoeneck & King, PLLC 280 Smithtown Blvd 1399 Franklin Avenue, Suite 200 Nesconset, NY 11767 Garden City, NY 11530 1 Constitutionality of Protests Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969) FACTS : Tinker involved the suspension of three students for wearing black armbands as a symbolic protest to the hostilities of the Vietnam War. HOLDING : The United States Supreme Court held that the suspensions were unconstitutional. The Court reasoned that students do not shed their First Amendment free speech rights at the school house gates, but that these rights may be subject to reasonable time, place and manner restrictions. The Court also held that student free speech protections do not extend to speech which would materially and substantially disrupt the educational process of the school environment or that would impinge on the rights of others. 2 1
Constitutionality of Protests Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988) The United States Supreme Court ruled that school officials did not violate the free speech rights of students by censoring, for legitimate educational reasons, objectionable material from a school ‐ sponsored newspaper. The Court held that Tinker’s substantial disruption standard did not apply to school ‐ sponsored activities, this decision limited Tinker to situations involving the regulation of a student’s “self ‐ expression” occurring on school grounds . Constitutionality of Protests Morse v. Frederick , 551 U.S. 393 (2007) School officials may restrict student speech at a school event when the speech is reasonably viewed as promoting illegal drug use. A school principal did not violate the free speech rights of students who held up a banner that said, “Bong Hits 4 Jesus” during the passing of the Olympic Torch, when she directed those students to take down the banner, confiscated it, and thereafter suspended one of the students . 4 2
Clothing – Political Guiles v. Marineau , 461 F.3d 320 (2d Cir. 2006), cert. denied , 2007 U.S. LEXIS 8793: Once a week, for two months, a 13 ‐ year ‐ old student wore a t ‐ shirt he bought at an anti ‐ war rally that depicted President George W. Bush as a chicken ‐ hawk president and former alcoholic and cocaine user After a parent complained, the school instructed the student to either change his shirt, wear the shirt inside ‐ out, or to put tape over the drug and alcohol images and over the word “cocaine” Court Ruled in Favor of the Student Court in Guiles held that the school violated the student’s • free speech rights under Tinker because what the school had censored was part of the student’s political message, and there was no evidence that the t ‐ shirt caused a substantial disruption Photo source: CBS News, https://www.cbsnews.com/new s/supremes ‐ ok ‐ students ‐ anti ‐ bush ‐ t ‐ shirt/ 3
Clothing – Political Barber v. Dearborn Pub. Sch. , 286 F. Supp. 2d 847 (E.D. Mich. 2003): Court granted student’s motion for a preliminary injunction allowing him to wear a t ‐ shirt to school which had a photograph of George W. Bush and contained the phrase “international terrorist” Photo source: CBS News, https://www.cbsnews.co m/news/student ‐ wins ‐ anti ‐ bush ‐ shirt ‐ clash/ Barbe r Rationale Furthermore, and contrary to Defendants' counsel's assertion at oral argument, the courts have never declared that the school yard is an inappropriate place for political debate. In fact, as the Tinker Court and other courts have emphasized, students 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. As one court has stated: Our schools, like our communities at large, are invaluably improved by the diversity of their members. All students benefit from the respectful and thoughtful exchange of ideas and sharing of beliefs and practices. Schools, in particular, are vital environments that can provide an education of both the substance of diversity and the responsible manner with which such diversity is approached and expressed. See 286 F. Supp. 2d 847, 857 ‐ 58 (emphasis added). 4
Clothing – Religious Nixon v. N. Local Sch. Dist. Bd. of Educ ., 383 F. Supp. 2d 965 (S.D. Ohio 2005): Court granted permanent injunction prohibiting middle school from preventing eighth grade student from wearing shirt that included "Homosexuality is a sin! Islam is a lie! Abortion is murder!" unless an imminent and substantial disruption became likely Religious Speech C.H. v. Bridgeton Bd. of Educ. , 2010 U.S. Dist. LEXIS 40038 (D.N.J. 2010) – Court granted student’s motion to enjoin the District from prohibiting her from wearing an armband or distributing flyers with pro ‐ life sentiments absent a well ‐ founded expectation of disruption. Armband was black and red and said “Life” Anti ‐ abortion flyers were distributed during non ‐ instructional times Student wore tape over her mouth during the school day as part of her participation in the Pro ‐ Life Day of Silent Solidarity Court found the District did not satisfy the Tinker standard 5
Clothing – Vulgarity B.H. v. Easton Area Sch. Dist. , 827 F. Supp. 2d 392 (E.D. Pa. 2011): Court enjoined school from disciplining students for wearing bracelets with the slogan “I Love Boobies” because school failed to show a well ‐ founded expectation of material and substantial disruption Third Circuit affirmed, 725 F.3d 293 (2013), finding that the language was not plainly lewd in light of the nationally recognized breast cancer awareness campaign See also, K.J. v. Sauk Prairie Sch. Dist. , 2012 U.S. Dist. LEXIS 187689 (W.D. Wis. 2012) (similarly finding “I Love Boobies” bracelets were not vulgar) Clothing – Confederate Flag Schools have prohibited the wearing of protest or political t ‐ shirts, including confederate flag shirts, if they are deemed likely to cause a substantial disruption. Hardwick v. Heyward , 711 F.3d 426, 440 (4th Cir. 2013), cert. denied , 571 U.S. 829 Court stated “[a]s long as a student’s speech is likely to cause a substantial disruption, school officials can prohibit or punish the speech” School officials believed the t ‐ shirts would cause disruption based on past incidents of racial tension in the school 6
Clothing – Confederate Flag However, some courts have gone the other way – Castorina v. Madison County Sch. Bd. , 246 F.3d 536 (6th Cir. 2001): Students were suspended for wearing t ‐ shirts which displayed a country singer on the front and a confederate flag on the back Case remanded to lower court to determine if the school board enforced the dress code in an uneven and viewpoint specific manner (Malcom X t ‐ shifts were allowed), and whether the t ‐ shirts created a “ likelihood of violence or other disruption ” Gang ‐ Related Clothing Grzywna v. Schenectady City Sch. Dist. , 489 F. Supp. 2d 139 (N.D.N.Y. 2006) – School told student that she could not wear a red, white and blue beaded necklace because it could be considered “gang ‐ related” in violation of the school dress code. Student said she was wearing the necklace to show support for American troops in Iraq. Court denied the school’s motion to dismiss, holding that based upon the plaintiff ‐ student’s argument, the facts, if true, would entitle the plaintiff to relief. 7
Gang ‐ Related Clothing Stephenson v. Davenport Cmty. Sch. Dist. , 110 F.3d 1303 (8th Cir. 1997) ‐ School required a student to remove a tattoo on her hand because a school counselor and several police officers identified the tattoo as a “gang symbol” which violated dress code policy. The court addressed the issue of overlabeling and stated that because gang symbols are often commonplace everyday objects and signs which may be indecipherable, the prohibition of “gang symbols” without applying any restrictive definition or guidance as to what that entails is impermissibly vague. Courts generally allow schools to limit the speech contained on a mural on school property. Gernetzke v. Kenosha Unified School District No. 1 , 274 F.3d 464 (7th Cir. 2001), cert. denied , 535 U.S. 1017: Members of the Bible Club sued the District alleging that exclusion of the cross from the mural violated their constitutional rights to religious freedom. The Court rejected the students’ claim, and held that exclusion of the cross was not content ‐ based discrimination, but rather was an exclusion made because of the principal’s reasonable belief that allowing the cross would lead to litigation and disorder. 8
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