The Oldest Rule: A Primer on Student First Amendment Issues for Attorneys and School Officials

By Christopher B. Gilbert

This book could save you $1 million!
OK, maybe not but some school districts have spent that much defending themselves (and not always successfully) in First Amendment lawsuits brought by students and their parents. First Amendment litigation is on the rise across the nation, and as any principal who has sat through a deposition in one of those cases can tell you, the raw emotions and zealous anger that fuels such disputes can become a massive distraction from your real job of running a school.
The Oldest Rule is a comprehensive examination of the different First Amendment issues involving students that public school administrators and attorneys are increasingly facing on daily basis. We will look at such topics as school prayer, dress codes, student threats and cyberbullying, the distribution of literature, the use of public facilities by outside groups, the celebration of religious holidays, and the rise of esoteric religions and their impact in the public schools. Written by Chris Gilbert, an attorney with over twenty-one years experience advising and representing school districts big and small, urban and rural -- this book combines discussions of the legal standards and key case decisions with practical advice and hypotheticals.

• Language: English
• Publisher: Xlibris US
• Release date: Dec 5, 2014
• ISBN: 9781503523500

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COPYRIGHT © 2014 BY CHRISTOPHER B. GILBERT.

LIBRARY OF CONGRESS CONTROL NUMBER:      2014921602

ISBN:      HARDCOVER      978-1-5035-2348-7

SOFTCOVER      978-1-5035-2349-4

EBOOK      978-1-5035-2350-0

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

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Rev. date: 12/05/2014

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CONTENTS

PART 1

FREE SPEECH

Introduction

Chapter 1 Tinker, Fraser, Forum … Sigh: Determining Which First Amendment Speech Test To Use

Chapter 2 We Are What We Wear: Student Dress Codes And Uniforms

Chapter 3 Newspapers And Yearbooks

Chapter 4 Books In School: The Library Cases

Chapter 5 Artwork And Displays

Chapter 6 Student Speech And Discipline The Student-Threat Cases

Chapter 7 Student Speech And Discipline Bullying In The Cyberworld Era

Chapter 8 All The World’s A Stage, And We Are Merely Lawyers: Drama And School Productions

PART 2

RELIGION

Chapter 9 A Smile On A Dog An Introduction To Student Religion Issues

Chapter 10 What Is A Religion?

Chapter 11 Who Chooses A Minor’s Religion?

Chapter 12 Let Us Bow Our Heads: Prayer (And Silence) In School

Chapter 13 Prayers At School Board Meetings

Chapter 14 Use Of Facilities

Chapter 15 The Distribution Of Religious Literature On School Property

Chapter 16 First Amendment Challenges To School Curriculum And Instruction

Chapter 17 Teaching (About) The Bible

Chapter 18 Monkeys Versus Pandas: A Brief History Of The Evolution Of Creationism In The Public Schools

Chapter 19 Student (And Parent) Religious Speech In Curriculum Assignments

Chapter 20 The Celebration Of Religious Holidays In The Public Schools

Chapter 21 Harry Potter And The Curse Of The First Amendment: The Role Of Esoteric Religions In The Public Schools

Chapter 22 I’d Like To Teach The World To Sing: The Use Of Religious Music In The Public Schools

Chapter 23 Baccalaureate Services And Graduation Ceremonies

Chapter 24 Homeschooling And Religion

Part 1

FREE SPEECH

Introduction

Well, I shan’t go, at any rate, said Alice:

"besides, that’s not a regular rule:

you invented it just now."

It’s the oldest rule in the book, said the King.

Then it ought to be Number One, said Alice.

—Lewis Carroll, Through the Looking-Glass

Twenty-one years ago, I was a first-year attorney who had been part of the School and Public Law Section at then Bracewell & Patterson LLP for about three months, with no real idea what area of school law I wanted to specialize in. One of our clients had received a letter from a local minister who was upset that the elementary school had had a Halloween party during the school day, which he felt was promoting Satanism and witchcraft. Jennifer Jacobs and Janet Horton, two of my supervising partners, asked me to research the issue and write a response letter to the minister. As I began reading the cases, I became fascinated with the issue of celebrating religious holidays, and particularly Christmas and Halloween, in the public schools.

After spending way more time than I probably should have researching the issue (I shudder to think about how much time Janet probably had to write off that bill), I finished the letter to the minister and then, just for fun, wrote an article on religious holidays in the public schools that was never published, but that twenty-one years later has ended up (with some modifications) as chapter 20 of this book. I then marched into Janet’s office and declared (with all the bravo of a first-year attorney) that I wanted to become an expert on the First Amendment. To her everlasting credit, Janet didn’t laugh; she said OK and then spent the next six years trying to find First Amendment projects for me to work on.

David Thompson, a former general counsel of the Texas Education Agency and one of the best litigators I have ever worked with, got me involved in two First Amendment cases: Favero v. Huntsville ISD, an employment religious discrimination case that became my first oral argument to the Fifth Circuit, and Shawhan v. McAllen ISD, a graduation prayer case that had the potential to become a significant First Amendment case, until we realized that all the plaintiffs had graduated and successfully moved to have the case dismissed as moot (a great victory for the client, though not so hot for my First Amendment career).

In the intervening twenty-one years, I didn’t know that I have become that First Amendment expert that I wanted so badly to be, standing in Janet’s office in December 1993. However, I have advised a lot of clients—big and small, urban, suburban, and rural—on a gamut of First Amendment issues and have had my fair share of First Amendment cases. I have also done a lot of speaking and training on the First Amendment. It was after one such workshop at the 2005 national convention of the Education Law Association in Memphis, Tennessee, that somebody said, You should turn this outline into a monograph. And hence, the idea for this book was born.

Freedom of speech and religion are two of the oldest political and legal issues upon which this nation was founded, and so it makes sense that they are enshrined in the First Amendment —Number One for the oldest rule in the book, as Alice tells the Red King in Through the Looking-Glass. The American public school system has been instrumental in helping develop many of the leading First Amendment doctrines because when you think about it, public school districts are some of the most numerous governmental entities, and ones with which many people come into contact with on a daily basis. After all, you may only deal with your city or county every couple of months when you have a specific issue, but you are either in school or have kids in school, almost every day between September and May. That kind of contact provides ample opportunities for disputes to arise.

What I find fascinating about the First Amendment is that some of the most important First Amendment cases have stemmed from everyday school incidents that may not have seemed at all significant to the school officials—and maybe even the parents or students—at the time. After all, when an assistant principal approached Mary Beth Tinker and told her she needed to take her black armband off, he surely didn’t think that over forty-five years later, thousands of law students every year would debate his actions in their constitutional law classes. And when Vice Principal Christy Blair told Matthew Fraser that his little student-council nominating-speech joke would cost him his chance to speak at graduation, she would not have dreamed that almost thirty years later, constitutional scholars would still be debating whether her case was a narrow exception to Tinker or a different rule for a different type of speech. And I’m not even going to speculate what was going through Principal Deborah Morse’s mind as she stalked across the street to grab Joseph Frederick’s Bong Hits 4 Jesus banner before television crews covering the Olympic torch relay could get it on camera.

My point is, what probably appeared to be student discipline molehills in each case turned into legal mountains, costing the school districts involved tens (hundreds?) of thousands of dollars in legal fees and disrupted staff time. One can decry that society has reached a point where parents are willing to file federal lawsuits over three-day suspensions, but the reality is that they do. And I should also point out that there are numerous well-funded special-interests groups out there, on virtually any and all sides of these First Amendment issues, who would be willing to take up the student’s cause. These days, superintendents sometimes find out that they have a problem not from a phone call from Mom, but from a certified demand letter from an organization in Washington DC that they’ve never heard of before.

For all these reasons, it is important for school administrators to have a basic working understanding of the First Amendment and how it applies to various typical student situations. To get the legal stuff out of the way, the purchase and use of this book does not establish an attorney-client relationship, and the contents of this book are intended to be educational and not legal advice. As will become apparent, the application of the First Amendment to any given situation is all about the facts, and if you have an issue arising at your school, I highly recommend and encourage you to consult with a qualified school attorney to assist with your individual situation.

My goal in writing this book was to provide a valuable resource to both school officials and school attorneys to use in addressing student First Amendment issues. As I wrote, I discovered that that was sometimes a contradictory goal—administrators like black-and-white answers while attorneys like having cases to which they can cite. I tried to provide both, but I will apologize in advance to the administrators: there simply aren’t a lot of simple answers to First Amendment questions. So often how your situation will get resolved depends heavily on the facts. For that reason, I probably go into more depth regarding the cases I discuss than many of you would have preferred. From a legal viewpoint, judicial opinions are important because as you will see, the actual forty-five words of the First Amendment do not provide a whole lot of specific guidance. Under our American common-law legal system, it is the cases that expand upon and guide us in determining how to interpret our statutes and constitutional provisions. If you understand how courts have treated past First Amendment situations, you can better predict how they will handle future situations.

And at least, First Amendment cases in the public school system are rarely boring!

A word to the nonlawyers about the federal judicial system: our court system is made up of the United States Supreme Court, under which are eleven¹ geographical courts of appeals (helpfully numbered first through eleventh) that each have jurisdiction over multiple states. Within each circuit are a varying number of district courts that have jurisdiction over a geographical area within a state. Many larger states have multiple districts, so, for example, Texas has four independent district courts (the United States District Courts for the Southern, Eastern, Western and Northern Districts of Texas), whereas Rhode Island only has a single district court (the United States District Court for District of Rhode Island). A district court is bound to follow the decisions of its respective court of appeals, but not necessarily the other ten courts of appeals (although it may find their decisions persuasive and thus use them in deciding cases). Everyone is bound to follow the decisions of the United States Supreme Court, and therefore one of the major functions of the Supreme Court is resolving conflicts (referred to a splits) between the various circuits.

I point this out because as we look at different First Amendment issues, I will talk about how different circuits have handled those issues and will sometimes discuss splits between the various circuits on a given issue. For example, during the 1990s and 2000s, the circuits were very split over whether school districts could allow their students to vote on whether to have a prayer at high school graduations and then elect a student to do so—the so-called student initiated, student led rationale for prayer that originated in the Fifth Circuit in Jones v. Clear Creek Independent School District.² For a decade, the Fifth Circuit and the Eleventh Circuit (which together make up most of the Old South) embraced this doctrine while the Third Circuit (centered in Pennsylvania) and the Ninth Circuit (the West Coast) flatly rejected it, until the Supreme Court kind of, sort of resolved the issue in Santa Fe Independent School District v. Doe³ (we’ll discuss this more in chapter 12). The point is, during that decade, if you were a school administrator tasked with organizing graduation, you needed to know what circuit your school district was in, to know whether you could let your students vote on whether to have an invocation.

Also, some circuits have different reputations when it comes to First Amendment issues. For example, the Third Circuit, long the home of now-Justice Alito, has traditionally taken a strict approach to student free speech analysis, holding in its seminal decision of Saxe v. State College Area School District⁴ that Tinker sets the general default rule for regulating school speech and applies to any speech that does not fall under the narrow exceptions for lewd speech (Fraser), school-sponsored speech (Hazelwood), or speech advocating illegal drug use (Morse). On the other end of the spectrum, the Fifth Circuit has repeatedly held, in cases such as Canady v. Bossier Parish School Board,⁵ that Tinker is simply one test (albeit an important one) that addresses one type of student speech and that there are other tests for other types of speech. This issue is discussed at greater length in chapter 1.

It is also sometimes important to know the predilections of the individual judges that are deciding your case. As lawyers, we like to pretend (officially, at least) that who the judge is doesn’t matter, but even the great judge Richard Posner, a stalwart on the Seventh Circuit, recently conceded that conservative judges are more like to rule in favor of a religious practice than liberal judges, though only on average rather than in every case.⁶ Another judge in that same case noted that the problem with the reasonable observer test for establishment clause cases is that this reasonable, objective observer, as in most fields of law, tends to sound a lot like the judge authoring the opinion.⁷

These are the reasons why it is important to have a good local school attorney, who knows the whims and fancies of the local federal bench!

In writing this book, I had a lot of help and encouragement over the years.

• I’d like to thank my law partners, both the courageous group who left Bracewell & Giuliani in December 2008 to start our own firm—David Thompson, Janet Horton, Merri Schneider-Vogel, Chris Borreca, Lisa McBride, Philip Fraissinet, Lisa Brown, David Hodgins, Maureen Singleton and Arturo Michel, as well as those who stayed behind, for putting up with my frequent absences to go camp out at Borders bookstore to work on this book.

• In particular, I’d like to thank Kelly Frels, one of the founders and longtime leaders of the field of school law in Texas and our section head at Bracewell for many years. I don’t know if I ever told Kelly this, but in the summer of 1992, when I was a summer clerk at Bracewell, my mother, who had never had a lawyer in the family and had just read John Grisham’s The Firm, was feeling decidedly queasy about my career choice. Knowing that we practiced school law, she called her old friend Ken Lloyd, a longtime member of the Spring Branch ISD school board, and asked if he knew anything about this Kelly Frels I was going to work for. Ken told my mom that Kelly Frels was one of the most decent, ethical, and good people that he knew—and that saved me the colossal embarrassment of being summoned home by my mommy at age twenty-four.

• I’d like to thank the associates who have worked for me—or me for them, sometimes it’s hard to tell—and who had to shoulder the real legal work so I could play hooky and work on this book. There are too many to name, but particular thanks goes to Marney Collins Sims and Susan Bohn, the so-called God Squad (Marney’s name, not mine), and Rebecca Weimer, my current associate, who has had to finish up motions and briefs this past year when I decided to make a push to actually finish this book.

• Lastly, but most importantly, I’d like to thank my wife, Mary Beth, and my two children, Kaley and Ryan, who have put up with endless nights of cases strewn across the dining room table and a distracted husband and dad, bleary-eyed from staring too long at the computer screen. I love you, guys!

Writing about the First Amendment and the law is difficult because no matter how hard you try, you are bound to insult someone in the process. Religion in particular is a matter of faith, and I know from hard experience that some people with strong personal beliefs about issues like prayer in school don’t always care what nine old men and women in Washington DC say the First Amendment requires or prohibits. In fact, if you can get through a paper or a speech about religion in the schools and not insult about a quarter of the audience in the process, you probably have not said much of any substance. Therefore, I would also like to apologize to you, the reader, in advance, for my pronouncements on what the First Amendment requires in the public schools. To borrow (extremely loosely) from Sophocles, don’t shoot the messenger!⁸

Chapter 1

TINKER, FRASER, FORUM … SIGH:

DETERMINING WHICH FIRST AMENDMENT SPEECH TEST TO USE

The First Amendment is only forty-five words long.⁹ It has been the law of the land for 223 years. So one might be forgiven for thinking that by the year 2014, the courts would have figured out how to apply the First Amendment—at least in most instances. Unfortunately, the opposite is true, as this quote from a 1998 Fifth Circuit case shows:

When we view the deceptively simple words of the Establishment Clause through the prism of the Supreme Court cases interpreting them, the view is not crystal clear. Indeed, when the Supreme Court itself admits that it can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law, as a Circuit Court bound by the High Court’s commandments we must proceed in fear and trembling.¹⁰

If the Fifth Circuit, which interprets the First Amendment on a regular basis, approaches it with fear and trembling, then how must the average school principal feel when confronting a student claiming a First Amendment right to curse?

The sheer weight of First Amendment cases shows how seriously the courts take this Oldest Rule. According to that font of all Internet knowledge, Wikipedia, the Supreme Court has considered over 140 cases since 1882 (most of which were decided after 1940) that in some way involved the free speech clauses of the First Amendment.¹¹ Many of these cases came from the public school system, and most apply to the schools in some form or fashion.

In Tinker v. Des Moines Independent Community District, the Supreme Court’s seminal student free speech case involving students who wore black armbands to protest the Vietnam War, the Supreme Court declared that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.¹² So do students really have the same First Amendment rights in school as adults do in the real world? This is the question that underlies many cases involving the application of the First Amendment in the public schools, and to understand the answer, one must first understand the strange stories of Paul Robert Cohen and Mary Beth Tinker.

Cohen v. California¹³ is not a school case; rather, Mr. Cohen (an adult) decided to protest the Vietnam War in a fairly graphic way by wearing a jacket that read F**k the Draft in the halls of the Los Angeles courthouse (his jacket, as you might have guessed, did not have the asterisks). He was arrested and convicted for disturbing the peace through offensive conduct, based purely on the language on his jacket. The Supreme Court overturned his conviction on the grounds that it violated the First Amendment:

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech has little or no regard for that emotive function which practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, (o)ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.¹⁴

Like Paul Robert Cohen, Mary Beth Tinker (a minor student) also desired to protest the Vietnam War through her method of dress. Unlike Mr. Cohen, Ms. Tinker showed a bit more restraint, opting to wear a black armband to school. Fearing disruption among the students, the school sent Ms. Tinker home until she agreed to return without the armband (which ended up being a few days). Ms. Tinker also brought suit, and as will be discussed below at greater length, the Supreme Court declared that Ms. Tinker’s discipline violated the First Amendment.

Now, we know that schools are subject to Tinker. But what does Cohen have to teach us? Seventeen years later, in Bethel School District No. 403 v. Fraser¹⁵—the second of the Supreme Court’s great trilogy of student speech cases—the Supreme Court was asked to apply Cohen to sexual innuendo uttered by a student during a student council nominating speech. The Court refused and drew the line between the adult world and the world of students:

The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens. See Cohen v. California. It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. In New Jersey v. T.L.O., we reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. As cogently expressed by Judge Newman, the First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.¹⁶

The lesson is clear: students bring some, but not all, of their adult First Amendment rights into the public schools.¹⁷ In Morse v. Frederick,¹⁸ the Supreme Court’s most recent school speech case, the Court reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.¹⁹ The trick, of course, is determining which rights they do leave at the schoolhouse gate. To do that, you will need to understand the various tests that the courts have developed to apply to speech that students wish to engage in at school. This chapter will attempt to chart the twisted path taken by those courts in deciding the balance to strike between a student’s right to free speech and a school’s need to maintain discipline and order in the school environment.

The Student Speech Trilogy: Tinker, Fraser, and Hazelwood

Between 1969 and 1988, the Supreme Court decided its modern trilogy²⁰ of cases that directly addressed what test should be applied to a student’s right to free speech in the public schools: Tinker v. Des Moines Independent Community School District (1969),²¹ Bethel School District No. 403 v. Fraser (1986),²² and Hazelwood School District v. Kuhlmeier (1988).²³ Tinker, the first of the trilogy, was decided during the height of the Vietnam War and involved a group of students who were disciplined for wearing black armbands to school to protest the war. After losing in both the district court and the court of appeals, the students’ right to wear the armbands, and hence their right to symbolic speech, was upheld by the Supreme Court. Although the Court noted the need for school officials to maintain order and discipline, it was concerned that there was no evidence that the armbands had actually caused any disorder or disruption of the educational process. Undifferentiated fear or apprehension of disturbance is not enough, warned the Court, to justify stifling free speech. Indeed, such a hazardous freedom was seen as a strength of American society.

Despite its deference to the rights of students, the Court did recognize that there would be situations in which a school could constitutionally regulate the speech of its students. Specifically, a school could regulate speech where the speech would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school²⁴—what has come to be known as the Tinker material and substantial disruption test. In addition, the Court noted the importance of the specific facts of each case in applying the above standard. Because there had been no showing of disruption in Tinker, and thus no showing that the speech had adversely affected other students, the Court held that the school policy violated the First Amendment.²⁵

The broad deference given to student free speech rights by Tinker remained the law until the mid-1980s. In 1985, the Supreme Court decided New Jersey v. T.L.O.,²⁶ which held that school officials generally needed only a reasonable suspicion to search students at school, and not the probable cause usually required for searches in the adult world. Although T.L.O. dealt with the Fourth Amendment and not the First, its warning that the Tinker-bestowed rights of students were no longer as certain as they once had been was confirmed the following year in Bethel School District No. 403 v. Fraser.²⁷

The reluctant star of Fraser was Matthew Fraser, a student who had made a nominating speech during a school assembly that the Court described as an elaborate, graphic, and explicit sexual metaphor. Although by today’s MTV-driven standards Matthew’s speech would probably be regarded as fairly tame,²⁸ it apparently shocked the school—which suspended Matthew for three days and removed his name from the list of potential graduation speakers—and the Supreme Court, which overturned the appellate court’s opinion that Tinker mandated a decision in favor of Matthew.

In distinguishing Tinker, the Court focused on what it considered to be important factual differences between the two cases. It first noted what it called a marked distinction between the political nature of the armbands in Tinker and the sexual nature of Matthew’s nominating speech. Stressing the importance of teaching students the boundaries of socially appropriate behavior,²⁹ the Court declared that even the most heated of political arguments requires a consideration for the personal sensibilities of the other participants and audiences.³⁰ The Court reiterated that student/children rights are not necessarily coextensive with adult rights. Referring to Cohen, the Court summed up the difference with the oft-repeated quote: The First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.³¹

Second, although the Court did not actually state that under Tinker it found Matthew’s speech to be materially and substantially disruptive, it was clearly influenced by the fact that Matthew had apparently caused quite a stir. The evidence showed that students at the assembly hooted and yelled and that some by gestures graphically simulated the sexual activities pointedly alluded to in respondent’s speech.³² Other students appeared to be bewildered and embarrassed. One teacher reported that she had to skip part of her lesson the following day to discuss the speech. The combination of the sexual nature of the speech and the response it elicited apparently was enough in the Court’s eyes to distinguish it from the speech in Tinker. The Court concluded by repeating a famous quote from the dissent in Tinker, which stated that the Constitution does not compel school officials to surrender control of the American public school system to public school students.³³

Two years after the Supreme Court was shocked by the nominating speech of Matthew Fraser, it decided Hazelwood School District v. Kuhlmeier.³⁴ Hazelwood addressed the extent to which school officials could censor a school newspaper written by students as part of their Journalism 2 course. The school’s practice was for the principal to review each article before it was published. After reviewing the May 1983 edition, the principal objected to two articles: one on student pregnancy and the other on divorce. The principal was concerned that even though false names had been used, the identities of the pregnant students might still be discernible. He was also concerned that the parents in the divorce article were not given a chance to respond to the claims of their children. Because the publication deadline was imminent, the principal directed the journalism teacher to pull the articles rather than have them rewritten. Suit was brought by students on the newspaper’s staff.

Although recognizing its decision in Tinker, the Court stressed the importance of leaving the decision of what speech is proper in the classroom to the discretion of local school boards.³⁵ The Court then turned to a method of analysis different from that used in either Tinker or Fraser: the forum analysis, which had recently been employed in such educational cases as Perry Education Association v. Perry Local Educators’ Association³⁶ and Widmar v. Vincent.³⁷ The forum analysis is discussed at greater length below. In determining whether the school intended to open its forum, the Court looked to district policy. The Court found that the limited rights given to the students involved in developing the newspaper did not overcome the fact that the policy granted the journalism teacher and the principal final authority over what was printed. The Court concluded that a school could place restrictions on school-sponsored speech so long as the restrictions are reasonably related to legitimate pedagogical concerns.³⁸ Since the evidence showed that the principal had a reasonable basis for removing the articles from a nonpublic forum, the students’ free speech rights had not been violated.

Evaluating the Trilogy: Can Tinker Be Reconciled with Fraser and Hazelwood?

Where Tinker undoubtedly marked a high point in pro-student speech decisions, Fraser and Hazelwood just as clearly showed a shift toward giving local school officials more discretion over what speech would be allowed on their campuses. There has been much debate on the proper relationship between these three cases. Student groups stress the importance of Tinker and attempt to paint Fraser and Hazelwood as narrow exceptions to the schoolhouse gate rule, limited to lewd speech and official school publications, respectively. School administrators prefer the much more recent Hazelwood and the nebulous standards of Fraser, dismissing Tinker due to its age and the vague and passive nature of the speech it involved.

There is no language in either Fraser or Hazelwood that suggests that they were only intended as exceptions to a more general Tinker rule. On the other hand, there is also no suggestion that they were meant to overrule or limit Tinker. Both arguments are based on the simplistic notion that there only needs to be one rule to cover all the various different types of speech. They ignore the possibility that Tinker and Hazelwood, at least, were intended to deal with two different types of student speech by establishing two different rules.

This bifurcated approach to student speech on campus is supported by the language of Hazelwood itself. The newspaper staff had argued that under Tinker, the articles had not materially disrupted classwork or resulted in substantial disorder in the school, and that therefore the school could not censor the speech. This argument was adopted by the Eighth Circuit, which held for the students. In reversing the Eighth Circuit, the Supreme Court set forth the bifurcated system:

The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises. The later question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school… . Educators are entitled to exercise control over this second form of student expression… .³⁹

While the bifurcated system established by Hazelwood seems to ignore Fraser (or assumes that Fraser would fall under one of the two cases, presumably Hazelwood), subsequent courts have recognized that Fraser establishes a third test for lewd, vulgar, obscene, or plainly offensive speech, which can be regulated regardless of whether it causes a disruption.⁴⁰

The Supreme Court’s trilogy of important student-speech cases, therefore, has produced the following trifurcated system for determining whether student speech is protected by the First Amendment:

By recognizing that the three cases were meant to deal with different situations and different types of speech, an educator can better predict how a court would likely rule on new situations as they develop.

What about Morse?

Almost twenty years after Hazelwood, the Supreme Court returned to the issue of student speech in perhaps its strangest case: Morse v. Frederick.⁴¹ Joseph Frederick was a high school student in Juneau, Alaska. During the Olympic torch relay, Frederick’s school was let out to watch the torch pass by in front of the school. Frederick and some friends bided their time, and then as the torch approached, they unfurled a banner that read Bong Hits 4 Jesus in what they admitted was an attempt to get on national television. Deborah Morse, the high school principal, crossed the street, grabbed the banner, crumpled it, and then suspended Frederick for ten days. Even though Frederick admitted that the banner was intended to be meaningless and funny, he brought suit under the First Amendment, challenging his suspension. Morse testified that she grabbed the banner not because she was motivated by fear that the banner would disrupt school, but instead because she felt that it violated the school’s policy against displaying offensive material, including material that promoted the use of illegal drugs.

In trying to decide what test to apply to Frederick’s banner, Chief Justice Roberts raised serious doubts as to whether Tinker is the default test for every student speech situation that does not clearly fall under Fraser or Kuhlmeier.⁴² Justice Alito agreed, noting that "the Court is also correct in noting that Tinker, which permits the regulation of student speech that threatens a concrete and ‘substantial disruption,’ does not set out the only ground on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings." ⁴³ Justice Thomas wrote separately to express his opinion that Tinker is not and never has been good law.⁴⁴ The chief justice ultimately concluded that public schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,⁴⁵ without the need to show the Tinker disruption, because of the special nature of the school environment and the dangers posed by student drug use.

So is Morse a fourth test? Justice Thomas certainly seemed to think so:

I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators.⁴⁶

The question is whether Morse should be strictly limited to speech that can reasonably be regarded as encouraging illegal drug use, or whether it can be extended to speech about other significant harms that school administrators should be allowed to regulate without the need to engage in the Tinker disruption balancing.

To date, most circuit courts appear to be interpreting Morse narrowly and strictly, as a Supreme Court–blessed exception for speech advocating illegal drug use.⁴⁷ However, some judges have suggested that the Morse rationale should be expanded to cover other specific non-drug-use speech. In Defoe ex rel. Defoe v. Spiva, in which the Sixth Circuit ruled that a school could ban clothing showing the Confederate flag because, under the facts facing them, school officials could reasonably predict that such clothing would cause a substantial disruption under Tinker, Judge Rogers wrote in his concurring opinion that the school did not need to engage in the Tinker disruption balancing to punish what he saw to be racially hostile speech:

A public high school that can put reasonable limits on drug-related speech by students can put reasonable and even-handed limits on racially hostile or contemptuous speech, without having to show that such speech will result in disturbances.⁴⁸

Judge Rogers noted that if you substituted racial conflict or racial hostility for drug abuse, the analysis in Morse was practically on all fours with the situation in Defoe. He thus reached what he called an inescapable conclusion that school officials may restrict racially hostile speech in school when school administrators reasonably view the speech as racially hostile or promoting racial conflict.⁴⁹

While Judge Rogers’s opinion in Defoe was only a concurring opinion, the Fifth Circuit—always a bit of a rebel court when it comes to the First Amendment—has actually applied the Morse rationale to non-drug-use speech in a majority opinion. In Ponce v. Socorro Independent School District,⁵⁰ the Court considered a student who was disciplined for writing in a journal an account of a Columbine-style attack on the student’s school. Instead of simply relying on the Tinker substantial disruption test, the Fifth Circuit declared that it was following the lead of the Morse Court in holding that the student’s speech was not protected because such speech poses a direct threat to the physical safety of the school population.⁵¹

The Ponce Court noted that to the extent that preventing a harmful activity may be classified as an ‘important-indeed, perhaps compelling interest,’ speech advocating that activity may be prohibited by school administrators with little further inquiry⁵²—that is, without the need to engage in a Tinker balancing analysis. The Court acknowledged that this harmful activity rationale could be taken too far and used to prohibit too much speech—something that the Morse Court had cautioned against—but noted that the Morse Court did not provide much of an explanation as to how a school should determine when the particular harms of a given activity add up to an interest sufficiently compelling to forego the Tinker analysis. The Fifth Circuit found its answer in Justice Alito’s concurring opinion in Morse:

The concurring opinion therefore makes explicit that which remains latent in the majority opinion: speech advocating a harm that is demonstrably grave and that derives that gravity from the special danger to the physical safety of students arising from the school environment is unprotected.⁵³

In considering whether the threats of violence at issue met that standard, the Court specifically noted that it was not addressing threats aimed at specific persons, but of violence bearing the stamp of a well-known pattern of recent historic activity: mass, systematic school-shootings in the style that has become painfully familiar in the United States.⁵⁴ The Court distinguished two other post-Morse cases involving threats of violence to specific individual teachers, which were analyzed under the traditional Tinker test:

Such threats, because they are relatively discrete in scope and directed at adults, do not amount to the heightened level of harm that was the focus of both the majority opinion and Justice Alito’s concurring opinion in Morse. The harm of a mass school shooting is, by contrast, so devastating and so particular to schools that Morse analysis is appropriate.⁵⁵

So while the Fifth Circuit appears in Ponce to have adopted a new test based on Morse—that speech advocating a harm that is demonstrably grave and that derives that gravity from the ‘special danger’ to the physical safety of students arising from the school environment is unprotected—it is worth noting that since Ponce in 2007, the Fifth Circuit does not appear to have actually used this test again. Indeed, in a 2009 case, the Fifth Circuit referred to Morse as simply allowing speech promoting drug use to be regulated,⁵⁶ and in a 2011 decision, the entire Fifth Circuit sitting en banc again referred to Morse as prohibiting speech that a reasonable observer would interpret as advocating illegal drug use.⁵⁷ So it remains to be seen whether even the Fifth Circuit will apply Morse to non-drug-use speech if a case such as Ponce arises again in the future.

A Fifth Test? Content-Neutral Policies That Impact Speech

Another issue that has come up in recent years is which test should be considered the default test in factual situations that do not appear to fall neatly under the traditional Tinker, Fraser, Hazelwood, or Morse tests. Often these cases involve situations where a facially neutral school rule ends up having a negative impact on a student’s speech. Take, for example, a typical school uniform policy. When a school passes a policy that requires students to wear blue shirts and khaki pants, it is not (usually) targeting any specific student speech or any specific viewpoints on any topics of discussion. Unlike Tinker, Fraser, Hazelwood, or Morse, each of which involved a school’s attempt to regulate specific speech that had already been made, a uniform code is passed before any student speech is made, and therefore its impact on such speech, although undeniably real, is incidental to its original purpose. So what test should a school use in these situations?

Some courts have followed what I shall call the traditionalist approach and ruled that Tinker sets the general default rule for regulating school speech and applies to any speech that does not fall under the narrow exceptions for lewd speech (Fraser), school-sponsored speech (Hazelwood), or speech advocating illegal drug use (Morse). The leading traditionalist circuit is the Third Circuit, and the leading case advocating this position is Saxe v. State College Area School District.⁵⁸ Saxe is considered an important decision because its author was Justice Alito when he still sat on the circuit court, and it has long been assumed that he would take the position that Tinker is the default test when such a case came before the Supreme Court. However, while there is no doubt that Justice Alito’s concurrence in Morse emphasized the narrowness of the Court’s holding, and stressed that Morse stand[s] at the far reaches of what the First Amendment permits,⁵⁹ Justice Alito also stated that "the Court is also correct in noting that Tinker, which permits the regulation of student speech that threatens a concrete and ‘substantial disruption,’ does not set out the only ground on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings."⁶⁰ So Justice Alito did not avail himself completely in Morse of the opportunity to satisfy the Tinker-only proponents.

On the other end of the spectrum is, as usual, the Fifth Circuit, which faced the which test is the default test question in Canady v. Bossier Parish School Board.⁶¹ Canady involved a challenge to a school uniform policy, and in considering whether the uniforms violated the First Amendment rights of the students, the Court first considered whether to apply Tinker, Fraser, or Kuhlmeier (Canady was pre-Morse). The Court ultimately decided that none of the Supreme Court’s tests were entirely appropriate. While it felt that Tinker was closest because a choice of clothing is personal expression that only happens to occur on school property, the Court acknowledged that the uniform policy was unrelated to any viewpoint, which it felt was important to the Tinker decision. Ultimately, the Court concluded that an intermediate test was needed, somewhere above Kuhlmeier but below Tinker. The Court determined that the test announced by the Supreme Court in United States v. O’Brien⁶² was the most applicable standard and that the uniform policy would therefore pass constitutional muster (1) if it furthered an important or substantial government interest, (2) if the interest is unrelated to the suppression of student speech, and (3) if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest.⁶³

In the past five years, a growing number of courts have turned to the O’Brien test in school speech situations that do not appear to fit under the more traditional tests.⁶⁴ At the same time, a growing number of pro-student speech groups have begun to challenge the use of O’Brien, arguing for the most part that Tinker should be used as the default test in situations where Fraser or Hazelwood do not appear to apply. This issue will undoubtedly continue to be litigated in the coming decade.

So, in the words of the Fifth Circuit, we now have five tests for regulating students’ speech:

In summary, because Canady survives Morse and applies to all content-neutral challenges, school regulation of student speech can be justified on five—not just four—grounds. If the speech is disruptive (Tinker), lewd (Fraser), school-sponsored (Hazelwood), or promoting drug use (Morse), schools may in some instances restrict specific student speech. Student speech can also be regulated so long as the regulation is viewpoint- and content-neutral (Canady).⁶⁵

The chart we discussed above now looks something like this:

The Forum Analysis

The Hazelwood court introduced a new theme into free speech analysis: the forum test. Since then, a number of courts considering school speech cases have shifted their focus from the type of speech and how it is delivered to the type of forum in which the speech is delivered. Under the forum analysis, the court must first determine what type of forum the school in question is:

i. A public forum, such as a public street or park, which has historically been open to public discussion and debate

ii. A limited or designated public forum, which is public property generally not considered to be a traditional public forum, but that has nonetheless been opened by the government for expressive activity

iii. A closed or nonpublic forum⁶⁶

In traditional public forums, speech can only be regulated if the government has a compelling reason for doing so and if the restrictions are narrowly tailored to meet that compelling reason. Limited or designated public forums are generally held to the same standards as traditional public forums. However, a school cannot create a limited public forum by accident or by inaction, but only by intentionally opening a nontraditional forum for indiscriminate public discourse.⁶⁷

In a closed, or nonpublic, forum, reasonable restrictions on speech are permissible:

School facilities may be deemed to be public forum only if school authorities have by policy or by practice opened those facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.⁶⁸

The Hazelwood court warned that there must be a clear intent to create a public forum⁶⁹ and that inaction or permitting limited discourse would not suffice. Public schools are not traditional public forums. In general, the courts have ruled that absent clear evidence of an intent to open a school up for indiscriminate public discourse, schools are closed forums.⁷⁰

Some courts, including the Fifth Circuit, have suggested that there are two middle categories of forum between open and closed: designated public forum and limited public forum. In Chiu v. Plano Independent School District,⁷¹ the Fifth Circuit concluded that the two terms are not synonymous and should not be used interchangeably.⁷² The Chiu court noted that the Supreme Court has described a limited public forum as a forum opened for public expression of particular kinds or by particular groups.⁷³ In a limited public forum, a school may restrict the expression that takes place within the forum so long as the restriction (1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum.⁷⁴ Limitations on speech in designated public forums are subject to strict scrutiny.⁷⁵ In distinguishing between the two types of forums, the Fifth Circuit focused on two factors: (1) the government’s intent with respect to the forum, and (2) the nature of the forum and its compatibility with the speech at issue.⁷⁶

In Chiu, a group of parents sued the school district after being prevented from distributing literature critical of the school’s new Connected Math curriculum. The school district had scheduled a series of Math Nights at various schools to explain the somewhat controversial new curriculum (dubbed Fuzzy Math by its detractors) and answer questions from parents. The parents were told by school officials that they could not distribute their anti–Connected Math literature at the Math Nights, and one parent was told that she could not distribute a petition via the school mail delivery system. Recognizing that neither the Math Nights nor the school mail system were traditional public forums, the Fifth Circuit turned to the distinction between designated public forums, which would be subjected to strict scrutiny, and limited public forums, governed only by a reasonableness standard.

With respect to the Math Nights, the court reviewed previous case law that had generally found public meetings to be designated public forums and held as follows:

Thus, when school district authorities elect to open public school facilities after school hours for public meetings during which public issues will be discussed in a manner similar to a limited-topic school board meeting, the district officials have designated a public forum for the limited time and topic of the meeting.⁷⁷

How the Math Night meetings fell under this standard depended on what the school district intended to accomplish at the meetings. If the Math Nights were intended simply to explain and provide information about the new curriculum, then they would not rise to the level of a designated public forum. If the school district intended to allow and answer questions about the new curriculum, and intended to allow debate over the merits of the program,⁷⁸ the meetings would be considered designated public forums. Although the court felt that the record was insufficiently developed to allow it to determine the true purpose of the Math Nights, that did not prevent it from determining whether the plaintiffs had alleged the violation of a clearly established right since they were claiming viewpoint discrimination that would have been impermissible in either forum.⁷⁹ The court then found that disputed fact issues regarding whether and why school officials prevented the parents from distributing their literature deprived it from jurisdiction to further consider the qualified immunity appeal.⁸⁰

So which of the many speech tests should a principal use when a student wants to turn in a term paper about the benefits of marijuana? Or, perhaps, claims a constitutional right to talk during lectures? As we will see in subsequent chapters, the courts use different tests for different factual situations—and not always consistently at that. However, as an initial proposition, I would suggest that we consider the various speech situations that could occur in a school as lying on a spectrum, running from pure speech made by students during school hours on school property or during school events on the one hand, to third parties proposing to speak outside of regular school hours on the other hand. As a very broad rule, I propose that the closer to the student end of the spectrum, the more likely the Tinker-Fraser-Hazelwood line of cases is to apply, whereas at the third party end the forum analysis is more likely to be used.

Let’s see if I am right.

Chapter 2

WE ARE WHAT WE WEAR:

STUDENT DRESS CODES AND UNIFORMS

A few years ago, I was down at Juvenile Court, monitoring a student discipline action for a school district. A fifteen-year-old boy had been called before the judge on a breaking and entering charge. He was wearing a black concert T-shirt. On the back of the shirt was the Grim Reaper, his skull grinning out from under a black velvet hood, holding his traditional scythe in one bony hand and reaching around to molest the virtually nude woman he was standing behind. As the boy was trying to convince the judge he was innocent, I leaned over to the assistant district attorney I was sitting next to and, with a very knowing air, I whispered, You know, if I were that boy’s attorney, I don’t believe I would have recommended wearing that particular shirt this morning.

Oh, that’s nothing, responded the DA wryly. You should have been here last week when a girl on a DWI charge was wearing a Budweiser T-shirt.

I learned that morning—besides the fact that I am not on the cutting edge of fashion anymore—that students will wear just about anything, just about anywhere. What students wear has become a major issue in the nation’s public schools, in part because current fashion trends seem to be leaning toward the extreme—or, in the case of the boy in juvenile court, the obscene—and in part because of the rising gang problem and the fact that gangs frequently identify themselves by the clothing they wear. Many schools are therefore beginning to experiment with both traditional dress codes and with school uniforms. Litigation over dress codes is on the rise, however; there have been a number of cases in recent years over both dress codes and uniforms. School officials must know how a court will analyze a dress code case in order to draft a dress code capable of surviving constitutional challenge.

Our Continuing Saga

Borreca High School has a standardized dress policy that requires students to wear blue jeans or khaki pants with a blue or white collared shirt. The shirt cannot have any writing on it of any kind, including brand logos or slogans. However, students may purchase a blue or white spirit shirt that prominently displays the Borreca High School name and logo, as well as various approved club shirts.

Shortly after the school year begins, Teacher Ann Oyed sees Eddie Feelingood, a student in her second period drama class, wearing a white T-shirt that says Coed Naked Cheerleading: A Good Cheer Will Arouse the Crowd.81 Ms. Oyed explains the dress code to Eddie and tells him that she is giving him a warning, but that he needs to not wear that shirt anymore. The next day, Ms. Oyed sees Eddie wearing a T-shirt that says Coed Naked Civil Liberties: Do It to the Amendments. Ms. Oyed sends Eddie to see the principal, Bee Wilderd. When Ms. Wilderd tells Eddie that he is in violation of the school dress code and that she is sending him home, Eddie tells Ms. Wilderd that she is violating his First Amendment right to free speech because she cannot prohibit him from engaging in political speech. Also, Eddie adds, she is engaging in viewpoint discrimination by allowing students to wear the shirts with the pro-school logos.

Is Eddie right?

So What Test Should Be Used In Analyzing Dress Codes?

There are really two different types of dress code situations: (1) what I shall call traditional dress codes of the thou shall not wear variety that specifically prohibit certain types of clothing (i.e., see-through clothing) and messages (i.e., tobacco or alcohol advertisements) and (2) the recently trendy uniform codes (or standardized dress codes) that require students to wear specific clothing that can range anywhere from jeans and a white T-shirt to blazers and plaid skirts. I will get to the uniform cases below, but first I want to focus on traditional dress codes since that is what most schools in my experience still have.

Before we look at how the courts have actually analyzed dress codes, it seems safe to predict that the appropriate test would be Tinker since any message conveyed by a student’s clothing is really just speech that happens to occur on the school premises.⁸² Tinker itself, after all, involved students who were disciplined for wearing black armbands to protest the Vietnam War. In a situation where the student’s clothing is lewd or obscene—such as the Grim Reaper shirt discussed above—Fraser might also come into play. One could envision certain limited situations such as band uniforms, in which the clothing worn by a student could be seen as school sponsored, thus triggering Hazelwood. In general, however, it is hard to argue that the messages on student clothing are conveyed through school property or activity or bear the imprimatur of the school.⁸³ So my prediction is that courts are most likely to use Tinker in evaluating dress code cases, with occasional nods to Fraser.

Let’s see if I’m right.

Case Study: The I Don’t Know What Test I Want to Use Case

A long-running case out of Chicago shows that even the courts are not really sure what test to use when confronted with an unusual T-shirt. In Brandt v. Board of Education of the City of Chicago,⁸⁴ a group of students designed an unofficial T-shirt for their gifted and talented program (which lost an election to become the official eighth-grade T-shirt). The shirt showed a boy giving a thumbs-up sign with one hand; his other arm ended in a handless nub, from which a leash extended to the school’s bulldog mascot. The boy’s head was oversized, with one pupil extremely dilated and large gaps between his teeth. The shirt