1

School Law Issues

Freedom of Speech

2014

2

United States Constitutional Protections

• Freedom of speech is protected by the First Amendment to the United States Constitution.

• Congress is prohibited from passing any law that abridges the freedom of speech and the press.

2014

3

United States Constitution Amendment I

• Congress shall make no law respecting an establishment of religion, or protecting 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.

1791

2014

4

Applicability to the States

• The First Amendment is made applicable to the States by the Fourteenth Amendment of the United States Constitution.

2014

5

United States Constitution Amendment XIV

• Section1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. …. (emphasis added)

1868

2014

6

Freedom of Speech In Schools

Political Speech

2014

7

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct.

733 (1969)

• Court: U.S. Supreme Court• Date: 1969• Issue: Whether school officials,

consistent with the Free Speech Clause of the First Amendment, can punish students for a silent, passive expression of opinion that does not cause any disorder or disruption in the school?

2014

8

Tinker v. Des Moines Independent Community School District, 393 U.S. 503,

89 S.Ct. 733 (1969)

• Facts:• Two high school students and a middle school student & some adults

decided to wear black arm bands during the holiday season to protest the Vietnam war.

• Public school principals learned of the plan to wear the arm bands & decided to ask students to remove the arm bands if they wore them to school.

• The students wore them to school and were suspended until they came back without their arm bands.

• The students did not cause an interruption of school activities and their presence did not cause disorder or interfere with school work.

• The students did not return to school until after the time that they had originally planned to wear the arm bands (December 16 until after New Years day).

• School authorities allowed students in some schools to wear political campaign buttons, the Iron Cross symbolizing Nazism.

2014

9

Tinker v. Des Moines Independent Community School District, 393 U.S. 503,

89 S.Ct. 733 (1969)

• Conclusions:• Undifferentiated fear or apprehension of disturbance

is not sufficient to overcome the right to freedom of expression.

• School officials must show that their action in prohibiting a particular type of expression was based on something more than a desire to avoid discomfort or unpleasantness related to an unpopular viewpoint.

2014

10

Tinker v. Des Moines Independent Community School District, 393 U.S. 503,

89 S.Ct. 733 (1969)

• Conclusions:• The prohibition of one particular opinion without

evidence that is is necessary to avoid material and substantial interference with school work or discipline is not constitutionally permissible.

• “School officials do not possess absolute authority over their students.”

• “In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views…”

2014

11

Freedom of Speech in Schools

Student Dress and Appearance

2014

12

How Is What Someone Wears to School A Constitutional Issue?

• Clothing choices may be endowed with sufficient levels of intentional expression to invoke protection under the First Amendment.

Canady v. Bossier Paris School Board, 240 F.3d 437 (5th Cir. 2001).

2014

13

Symbolic ClothingSymbolic Clothing

• Clothing may symbolize ethnic heritage, religious beliefs, or political and social views.

Canady v. Bossier Parish School Board, 240 F.3d

437 (5th Cir. 2001).

2014

14

Clothing as a Symbol of Affiliation with a Social Group

• Students’ choice of clothing may signify:• the social group to which

they belong;• their participation in

different activities; and• their general attitudes

toward society and the school environment.

• Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001)

2014

15

Clothing as a Symbol of Affiliation with a Social Group

• The message students intend to communicate about their identity and interests through their clothing choices may have little value to some adults.

• However, it has a considerable affect, whether positive or negative, on a young person’s social development.

• A student’s expression of their identity and interests through their clothing choices may not always convey a particularized message sufficient to warrant First Amendment protection.

• The Fifth Circuit has declined to find an individual’s choice of clothing as an expression of one’s identity and affiliation to unique social groups will never amount to protected speech.

Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001)

2014

16

Clothing as an Expression of Ideas, Opinions, a Message or

Cause

• Clothing may be used to express ideas, opinions, a particular message, or a symbol of a cause.

• “Words printed on clothing qualify as pure speech and are protected under the first amendment.”

• Examples of clothing functioning as pure speech include wearing clothing with written messages supporting political candidates or important social issues.

Canady v. Bossier Parish School Board, 240 F.3d 275 (5th Cir.. 2001)

2014

17

Clothing as a Symbol Must Be Likely to Be Understood by the Viewer

• “The choice to wear clothing as a symbol of an opinion or cause is undoubtedly protected under the First Amendment if the message is likely to be understood by those intended to view it.”

• Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001)

2014

18

Determining the Constitutionality of a School Uniform Policy

• The Fifth Circuit has established a four part test to determine if a school uniform policy or any school policy is constitutional under the First Amendment and Fourteenth Amendment. The questions a court must ask are:• Is the challenged policy within the government’s

constitutional power?• Does the challenged policy further an important or substantial

governmental interest?• Is the governmental interest furthered by the policy not

related to suppressing student expression?• Are the incidental restrictions imposed on students’ First

Amendment activities no more than is necessary to facilitate the governmental interest?

2014

19

What Does Louisiana Law Allow?

• Public school boards are authorized to adopt rules and regulations to require a school dress code.

• Each student’s parent or guardian must be provided written notice of:• the dress code specifications; and • the date that the dress code will be effective.

• A school board may include the use of uniforms as part of its school dress code.

• Each school may choose student uniforms that must be on display before the beginning of each school year.

LSA-R.S. 17:416.7

2014

20

Mandatory School Uniform Policies

• Mandatory school uniform policies were challenged in two Fifth Circuit cases in 2001.• Canady v. Bossier Parish School Board, 240 F.3d

437 (5th Cir. 2001).• Littlefield v. Forney Independent School District,

268 F.3d 275 (5th Cir. 2001).• Both cases involved constitutional challenges to

public school policies authorized by a state statute. • Neither case challenged the constitutionality of the

applicable state statute. • Both decisions upheld the school uniform policies as

constitutional.

2014

21

Compare the Constitutional Interests Asserted in Littlefield and Canady

• Littlefield asserted that parents had a liberty interest claim that mandatory school uniforms interfered with their parental rights to teach their children issues such as:• the importance of appropriate grooming and attire;• respect for the individuality of others; and • the importance of their own individuality.

• In Canady on the other hand, the parents asserted that the dress code denied their children’s liberty interest in wearing clothing of their children’s choice in violation of the Fourteenth Amendment.

2014

22

• The Canady Court found that the First Amendment adequately protected the students in the case before the Court.

• The Fifth Circuit declined to address the student’s general substantive due process claim that they had a “liberty” interest in choosing the type of clothing that they want to wear at school.

2014

23

Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001)

• Court: U.S. Court of Appeals for the 5th Circuit• Date: 2001• Issue: Is a public school mandatory uniform policy

unconstitutional because it interferes with parents’ rights to teach their children issues such as the importance of appropriate grooming and attire, respect for the individuality of others, and the importance of their own individuality?

2014

24

Parents Do Not Have a Fundamental Right to Control the Clothing

Their Children Wear To School

• Facts: Parents in Littlefield claimed the compulsory uniform policy violated their fundamental parental right to control their children’s upbringing and education.

• Conclusion: The Fifth Circuit concluded in the Littlefield case that the United States Supreme Court decision in Troxel did not create a fundamental right for parents to control the clothing that their children wear to public schools.

Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001).

2014

25

Parental Rights in Public Schools May Be Subject to Reasonable Regulation

• Conclusions:• Parents have a fundamental right in their children’s

upbringing and education.• Parental rights in the public school context are not

absolute and can be subject to reasonable regulation.

• Parents’ fundamental right in the upbringing and education of their children does not cover the parent’s objection to a public school uniform policy.

Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001).

2014

26

The Policy Must Be Rationally Related to a Legitimate State Interest

• Conclusions:• The Fifth Circuit found the uniform policy in

Littlefield was rationally related to the state’s interest in the education of its children, and furthering the goals of improving student safety, decreasing socioeconomic tensions, increasing attendance, and reducing dropout rates.

• The Fifth Circuit concluded that the policy did not violate the parents’ Fourteenth Amendment rights.

2014

27

Jones v. W.T. Henning Elementary School, 721 So.2d 530 (La. App. 3rd

Cir. 1998)

• Court: Louisiana Court of Appeals

• Date: 1998• Issue: Is a school dress

code policy that treats boys and girls differently unconstitutional under the Fourteenth Amendment’s equal protection clause?

2014

28

Equal Protection Does Not Mandate Equal Treatment

• The Fourteenth Amendment’s Equal Protection Clause provides that no person shall be denied the equal protection of the laws.

• Equal protection of the laws, however, does not mandate equal treatment.

• Jones v. W.T. Henning Elementary School, 721 So.2d 530 (La. App. 3rd Cir. 1998).

2014

29

Gender Classification & Equal Protection

• To withstand scrutiny under the Equal Protection Clause, gender classifications must:• serve important governmental objectives; and • be substantially related to the achievement of those

objectives.• The proponent of the gender classification has the

burden of establishing that the classification furthers an appropriate governmental objective.

Jones v. W.T. Henning Elementary School, 721 So.2d 530 (La. App. 3rd Cir. 1998).

2014

30

Freedom of Speech in Schools

Lewd and Indecent Speech in Schools

2014

31

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986)

• Court: U.S. Supreme Court• Date: 1986• Issue: Whether the First

Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly?

2014

32

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159

(1986)

• Facts:• A high school student gave a speech at an assembly

to nominate another student for a student elective office.

• All of the students in the school were required to attend the assembly or report to study hall.

• The student speaking referred to his candidate in an elaborate, graphic, explicit sexual metaphor.

• Students in the assembly reacted with shock, or alternatively by shouting and using graphic sexual gestures.

• High school rules prohibited the use of obscene language at school.

2014

33

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159

(1986)

• Facts:• The student who gave the speech was

suspended for three days.• His name was removed from the list of

candidates to speak at the high school commencement exercises.

• The student filed suit for violation of his right to free speech.

• The suit sought and injunction and monetary damages.

• U.S. District Cr. And 9th Circuit both ruled in favor of Fraser 2014

34

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159

(1986)

• Conclusions• The freedom to advocate unpopular and controversial

views in schools and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.

• It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.

• The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

2014

35

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159

(1986)

• Conclusions• The pervasive sexual innuendo in the student’s

speech was plainly offensive to both teachers and students.

• The school district acted entirely within its permissible authority in imposing sanctions on the student for his offensively lewd and indecent speech.

2014

MORSE, et al. v. FREDERICKSUPREME COURT OF THE UNITED STATES

551 U.S. 393(2007)

Issue: To what extent is the school empowered to limit freedom of speech of students?

Frederick was suspended for unfurling a banner “BONG HITS 4 JESUS” as the Olympic Torch Parade passed the school. Frederick had not been in school before the parade but mixed into the student body when they were released to view the parade.

Morse suspended Frederick for speech she believed advocated drug use, which violated school rules.

362014

• The U. S. District Court ruled in favor of Morse, giving qualified immunity to the Morse and saying no speech right was violated.

• The Ninth Circuit Court of Appeals overturned the District Court.

• The Supreme Court reversed the appeals court: “considering the special characteristics of the school environment and the governmental interest in stopping student drug abuse, the Court held that schools were entitled to take steps to safeguard those entrusted to their care from speech that could reasonably be regarded as encouraging illegal drug use.”

372014

38

Freedom of Speech in Schools

Student Publications

2014

39

Hazelwood School District v. Kuhlmeir, 484 U.S. 260, 108 S. Ct.

562 (1988).

• Court: United States Supreme Court

• Date: 1988

• Issue: To what extent can educators exercise control over the high school newspaper produced as part of the school’s journalism curriculum?

2014

40

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct.

562 (1988)

• Facts:• The school newspaper was written and edited by the

high school journalism class.• Copies were distributed to students, school personnel

and community members.• The paper was paid for by public funds and the

proceeds of sales of the paper.• The principal reviewed proofs of the newspaper

before it was finally printed.• The principal objected to the inclusion of two articles

in the paper, one on pregnancy and one on the effects of divorce on students at the school because they allowed student to be personally indentified.

2014

41

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct.

562 (1988)

• Facts:• The principal directed the teacher to remove

the stories because there was not enough time to correct them.

• The students filed suit because the principal cut the stories from the paper.

2014

42

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct.

562 (1988)

• Conclusions:

• A school does not have to tolerate student speech that is inconsistent with its basic educational mission.

• One of the strengths of the School’s case was that this was a class and operated under well written policies and procedures!!!

2014