Legalese — Free Speech and the Public Schools

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It is the beginning of the school year, and so the age old argument about school clothes is repeating itself in many households across the nation, including my own.  What is and isn’t appropriate?  What right does the school have to curtail free expression?  How does the constitution play in to my daughter’s choice of t-shirts?

This is all summarized rather neatly in Harper v. Poway Unified School District, which can be found at 445 F.3d 1166 (9th Cir. 2006).

The United States Supreme Court has said that “the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.”  Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260, 266 (1988).  This means that students’ rights to free speech on the campus of a public school might be less than those of an adult in another environment.

So what does that mean in real life?

Well, while in real life a t-shirt that says, “You had me at beer” might be acceptable, the school has a right to say that it doesn’t want you to wear anything that promotes the use of alcohol.

That one seems rather obvious.  But what about something trickier, like in the Harper case?  In that case, a public high school had a “Day of Silence” designed to “teach tolerance of others, particularly those of a different sexual orientation.”  A boy named Tyler Harper wore, on that day, a t-shirt which read, “Be ashamed, our school embraced what God has condemned…Homosexuality is shameful Romans 1:27.”  Harper’s teacher noticed the shirt, and saw several students ‘off task” talking about the shirt.  At the last year’s “Day of Silence,” several fights had broken out as a result of “anti-homosexual speech.”  The shirt was determined to be inflammatory, and Harper was given a dress code violation.

Harper sued on the grounds that the dress code violation itself violated his right to free speech and freedom of religion.

The 9th Circuit Court of Appeals disagreed, noting that “Almost all young Americans attend public schools.  During the time they do – from first grade through twelfth- students are discovering what and who they are.  Often, they are insecure.  Generally, they are vulnerable to cruel, inhuman, and prejudiced treatment by others. The courts have construed the First Amendment as applied to public school in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure, and effective learning environment.”

Given that, the United States Supreme Court in Tinker v. Des Moines Indep. Comty. Sch. Dist, 393 U.S. 503 (1969) has said that a student’s rights to free speech may be limited under two circumstances: 1) if that speech may “impinge on the rights of other students,” and 2) if that speech would result in “substantial disruption of or material inference with school activities.”

Harper is certainly entitled to his religious belief, and he is allowed to speak of these beliefs to anyone he wishes to outside of the setting of a public school.  However, since the Court found that the shirt both impinges on the rights of other students and has the substantial likelihood (based on what occurred the year before) of causing a disruption, it was not a violation of free speech or Harper’s religious beliefs or practice to forbid him from wearing that shirt.

It may seem like semantics, but it is an important distinction: the Courts did NOT say that there was anything wrong with Harper’s religious beliefs, or that he should change how he feels about the topic.  Rather, it was the expression of that religious belief in an environment in which already vulnerable people are directly targeted by the speech, and the disruption to the learning environment that the shirt would cause that was the problem.  The court stated that “speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as damage their sense of security and interfere with their opportunity to learn.”

If Harper could point to a tenet of his religion which required him to wear that shirt*, or if there had been no history of violent outbreaks at that particular school, the outcome may have been different.

It’s a tricky balancing act, and I don’t envy those that have to keep things from tipping.

*for example, a school dress code can forbid hats, bandannas, or other head coverings, but if a student’s religion requires them to wear a Yarmulke or a headscarf or hijab, they would be allowed to wear such a head covering.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  No lawyer can advise you about your situation without hearing the particular, unique details of your case.

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