"Congress shall make no law respecting the 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." (Amendment 1, US Constitution 1791)

Under the US Constitution, students do have the first amendment rights of freedom of expression implied in Amendment 1, but those rights are not unlimited and the school has a duty at times to curtail freedom of expression, which falls often under speech. As administrators, one of our jobs is to protect the rights of teachers and students while still providing an environment for instruction and learning. New teachers and old alike need to understand the issues of freedom of expression within schools. When is it appropriate for teachers and/or administrators to limit expression and when is it not? The answer lies not in the black or white but the vast gray in between. The goal of many schools is to educate productive citizens. Can schools that trample on the rights of students really expect them to be productive citizens under the Constitution? Part of educating productive citizens involves allowing students to practice those rights guaranteed in the Constitution in a responsible manner. While schools often overstep censorship of student's freedom of expression in the name of social order, students are getting a warped view of their rights under the constitution. Administrators have a duty to uphold the "supreme law of the land" and to educate our students within their rights.

Tinker v. Des Moines -- Symbolic Speech

The landmark decision involving student freedom of expression is Tinker v. Des Moines. In this case, a group of high school students decided to join community protests by wearing armbands in protest of the Vietnam War. The students chose to wear armbands despite the local principal establishing a policy against it. Once they refused to remove the armbands, they were suspended and took their case to court. The case was eventually decided by the Supreme Court, which gave guidelines for schools to follow:

1) School officials must have authority to control student conduct
2) Neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
3) Schools should protect the "constitutional freedoms of the individual, if we are not to strangle the free mind at the source and teach youth to discount important principals of our government as mere platitudes."
4) 1st Amendment applies to symbolic as well as pure speech
5) ...fear of apprehension of a disturbance is not enough to overcome the right to free expression."

In the case the court ruled in favor of the students and established the following standards for deciding the constitutionality of an expression issue.

1) Schools cannot prohibit opinion merely "to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
2) Unless evidence exists where the restricted expression would "materially and substantially" interfere with the work of the school or the rights of others, the restriction is unconstitutional.

The state of California has broken down the decision in creating Education Code #48907, which states that censorship can take place in only three situations. (ACLUNC)

1. It is legally "obscene"
2. It is libelous or slander
3. It creates an immediate danger of causing students to commit an act that is unlawful or violates school rules, or would cause a substantial disruption of the orderly operation of the school.

Dress Codes and Uniform Policy
One of the toughest areas to monitor is the expression through student dress. When can a school take away this right? The answer is not an easy one, but there is some advice to decide how much is too much. The courts provide no clear guidelines on student dress and the guidelines for speech are often applied. New teachers need to familiarize themselves with the dress code policies of the student handbook, and they should understand the process that they should begin when censoring expression. Safety seems to be the driving force behind most dress codes and uniform policies, but just because there is a possible chance of disruption doesn't mean that it is all right to suppress speech. In Kansas, the Derby School District implemented a policy to protect students from racial harassment. A student was suspended for drawing a Confederate flag, which was specifically mentioned in the policy. The federal court ruled that the school could act to prevent problems before they occur. But in Texas, a group wanted to wear armbands, and the school feared the reactions of opposing groups to the armbands and did not allow them. The court ruled that a possible disruption by others does not give schools the right to censorship. One reason for this decision was the school's lack of due process by providing other methods to prevent conflict before speech was curtailed.

Courts tend to rule with schools who have gone through due process to find solutions through dress codes. Schools who did not go through a process tended to get policies overturned. In cases of school uniforms, the courts have usually sided with the school not because of the reasonableness of restrictions but the due process in establishing and justifying dress codes. What about borderline decisions involving controversial T-shirts?

T-shirts fall under symbolic speech, and the school must follow the same guidelines. ACLU lawyer Scott Greenwood was quoted saying, "educators can ban garments that are disruptive or promote violence, but not simply on the assumption that people who wear black trench coats or anything else will commit massacres." Thus wording becomes very important in setting policy and justifying it to others. It is not okay for schools to limit expression just because they disagree with the content of the message. New teachers could ask the following questions when considering censorship of dress.

1) Is the message verbally or visually obscene?
2) Does the content contain libelous or slanderous statements?
3) Does it create immediate danger to students?
4) Does it violate specific school rules or policy (teachers should be knowledgeable about handbook and school policy)?
5) Does the message lead students toward illegal acts?
6) Is it a substantial disruption to orderly operation of school?

An answer of yes to any of these questions can justify censorship, but in court the burden of proof in these cases falls to the school to show immediate danger or substantial disruption. Teachers and administration need to follow these steps and document that any censorship fell into one of the categories above. In the cases of rules or policy, there must be a process and rationale behind the rules and policy. Teachers should not be afraid to ask the opinion of other teachers and administration in evaluating speech
rights versus school order.

Final Thoughts

Tinker clearly establishes the rights of free expression for students and that freedom cannot be taken away without due process under the Constitution. Many times the rights of students are violated when censorship exists outside the bounds of due process. Many times students are censored for their different ideas and sometimes even punished.School officials need to know the grounds for censorship, but they should also know how to document behavior in order to meet the burden of proof in a court of law. When a method of dress or symbolic speech interferes with learning or distracts others, the teacher can document the behavior attributed to the symbol. If this is done properly, there is a better chance that the censorship will hold in court. But as with many things, it may depend on the court you find yourself in, as they are apt to rule either way.

Expression should be tolerated, but it must not interfere with learning. If it does interfere, something needs to be done.

Important Court Cases to Consider

Tinker v. Des Moines Independent School District (1969)
Bethel School District v. Fraser (1986)
Hazelwood School District v. Kuhlmeier (1988)
Boroff v. Van Wert City Board of Education (6th Circuit, 2000)
Commonwealth v. Ashcraft (Kentucky Court of Appeals, 1985)
Settle v. Dickson County School Board (6th Circuit, 1995)
West v. Derby USD 260 (10th Circuit, 2000)

Web sites used in this document

www.firstamendmentcenter.org/speech/studentexpression/faqs.aspx?www.firstamendmentcenter.org/PDF/teachersguide.PDF
www.aclu.org/students/guide/
www.libertarianrock.com/topics/school/dress code amendments rights.html
www.schoolsecurity.org/resources/uniforms.html
www.asbj.com/2003/03/0303schoollaw.html

Other reference
Fischer, Schimmel, & Stellman, Teachers and the Law (6th Ed.), Pearson Education Group, 2003.

Assignment: Reflect on the two following legal scenarios and email your analysis to your instructor.

Case scenarios

1. A teacher is a known animal rights activist. During a class discussion, she shares how strongly she disagrees with beef slaughterhouses, and how she has demonstrated against them in the past. The next week the entire class enters the room with T-shirts that contain the slogan "Beef -- It's what's for Dinner" on the front while the back is decorated with caricatures of the slaughterhouse process. The teacher is visibly upset and tells the principal that she refuses to teach until the shirts are changed. The students refuse and were given zeros for the day's work. Were the students within their rights? Why or why not?
2. A school with known racial tension between groups builds a racial harassment policy built around the prevention of racist symbols or language. The policy is enacted mid-year. A student wears a Jeff Foxworthy T-shirt to school that contains the phrase "You might be a redneck if." Followed by a list of statements. The student had worn the shirt before without incident, and there were no protest until late in the day where a school security official saw the shirt and took the student to the principal who suspended the student under the new policy because some of the statement might be offensive to others and could be considered racial prejudice. The student files suit claiming his right to free expression has been violated. Was the principal right in his action? Why or why not?