In the first of many articles related to educating our nation’s children in the era of Covid-19, the purpose of creating such a series is to address a litany of questions I continue to receive from neighbors, friends, relatives, and practicing educational colleagues.  Some questions include First Amendment (1A) protected student free speech, effective grading practices in an on-line learning environment, continuity of services for learners with individual learning plans, addressing growing learning gaps, interrater reliability of the evaluation of professional staff, and maintaining parental involvement in their children’s learning.

Prior to delving into the 1A question, let me provide this disclaimer and make this abundantly clear – I am NOT an attorney, nor do I claim to be one, nor do I play one on TV.  

With all of the pleasantries having been met, let us consider a situation brought to my attention by my 14 year-old son, who is a freshman in high school.  

During the course of a conversation with a friend while playing video games, his friend expressed that he was frustrated with his social studies teacher.  Intrigued by this, my son probed for clarity, and was informed that the teacher had received complaints from other students in the class about my son’s friend having a “Trump 2020” flag behind him as the students were participating in remote learning as a result of the school district implementing distance learning protocols related to Covid-19.  As a result of the other students’ complaints, the teacher directed the student to either reposition himself so as to not show the flag, or to take the flag down because it was offensive to other students.  Regardless of whom you did or did not support in the most recent presidential election is not at issue here.  What is at issue, however, is the ramifications of an educator making this kind of demand on a student.  

Outside the scope of the 1A protections, when considering the vast case law associated with student free speech, there exist key cases for which educators in general, teachers and administrators alike, should remember and consider.  What follows is a brief synopsis of those foundational cases followed by a list of key takeaways. 

Burnside v. Byars, 1966 (363 F.2d 744) is a case involving student speech, specifically, symbolic speech, wherein the students involved wore buttons, “as a means of silently communicating an idea and to encourage the members of their community to exercise their civil rights.”  The principal of the school, after having issued one week suspensions to students who did not comply with his directive to not wear the buttons to school, “testified that this disciplinary regulation[2] was promulgated because the buttons ‘didn’t have any bearing on their education,’ ‘would cause commotion,’ and would be disturbing [to] the school program by taking up time trying to get order, passing them around and discussing them in the classroom and explaining to the next child why they are wearing them.”  The U.S. Court of Appeals for the Fifth Circuit ruled in favor of the students, stating, “…school officials cannot ignore expressions of feelings with which they do not wish to contend. They cannot infringe on their students’ right to free and unrestricted expression as guaranteed to them under the First Amendment to the Constitution, where the exercise of such rights in the school buildings and schoolrooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”  The key in this case, as will be utilized by The Supreme Court of the United States (SCOTUS) in the next case discussed, is tantamount to understanding how and why student speech can be limited, and only sparingly.  

Tinker v. DesMoines, 1969 (393 U.S. 503) has become one of the most spoken about student speech cases, often over shadowing Burnside.  In this case, students wore armbands for the purpose of protesting the involvement of the United States in Vietnam.  Upon being suspended from school for refusing to remove their armbands, three students filed suit against the school district.  In its decision, SCOTUS makes it abundantly clear that, “…the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.”  Lastly on this case, SCOTUS reemphasized its position that, “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  

Bethel v. Fraser, 1986 (478 U.S. 675) is a case of a high school student giving a speech about a student government candidate which SCOTUS described as, “elaborate, graphic, and explicit sexual metaphor.”  Fraser in this case not only wrote the speech with the intention of inciting a response from his peers, but he gave the speech in question after discussing the speech with two staff members who both recommended he not give the speech as there could be consequences.  Because of the subsequent impact and disruption to not only the assembly but also the next day’s lessons, using the standard established in Burnside, SCOTUS agreed that there had been a material and substantial disruption to the educational process, and as such, Fraser’s free speech could be limited, or as SCOTUS puts it, “circumscribed.”   

Morse v. Frederick, 2007 (551 U.S. 393) relied heavily on the Tinker and Bethel cases in its consideration of whether or not a student’s freedom of speech had been infringed upon by his high school principal.  In the case of Principal Morse confiscating Frederick’s banner which had the message of “Bong Hits for Jesus” scribed on it, was shown during a school-sponsored event, despite being off school grounds.  Frederick’s argument that the incident took place off school grounds was negated by the Court in so much as SCOTUS noted that despite the activity being off school grounds, the banner was directed at other students, and occurred at a school-sponsored event.  SCOTUS emphasized that this was a “school speech” issue, and since the activity where the behavior occurred was an “approved social event at which the district’s student conduct rules expressly applied,” sanctions taken against Frederick by Morse were appropriate because Frederick’s actions violated the school district’s policy against encouraging illegal drug use.  A key takeaway from this case is noting that while students can be held accountable for their speech while off school grounds, not all speech is protected.  

Zamecnik v. IPSD 204, 2011 (636 F.3d 874) is a more recent case involving student expression.  Especially in light of current events wherein there is a perception that speech which causes hurt feelings has been dubbed as “hate speech,” the U.S. Court of Appeals for the Seventh Circuit disagrees.  In this case, students at a suburban high school in Illinois participated in the National Day of Silence, the purpose of which as noted by the Court was, “intended to draw critical attention to harassment of homosexuals.”  Some students and even some faculty wore clothing that stated, “Be Who You Are.”  On the very next day of school, other students, who did not agree with the message based upon their religious beliefs, wore their own shirts which stated, “My Day of Silence, Straight Alliance” and “Be Happy Not Gay.”  A school official covered up the words “not gay” using a permanent marker, but left the remaining portion of the messages because the official did not disagree with the message.  As a result, the students filed suit against the administration and district for 1A violations.  The plaintiffs argued that their message did not contain fighting words, and as such their message could not be considered “hate speech.”  The Court provided a definition in its opinion stating, “…fighting words,’ which means speech likely to provoke a violent response amounting to a breach of the peace.”  As a result, the Court ruled in favor of the Plaintiffs further noting that, “…a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality,” and “people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.”  It should be emphasized here that when school officials provide the opportunity for a particular viewpoint (political, social, etc.) it must be prepared to also support the free speech of those students who would otherwise disagree with the initial message presented.  

Most recently, Trevor Wilkinson, a senior at Clyde High School in the Clyde Independent School District located in Clyde, Texas, recently received a suspension for wearing nail polish.  Now, regardless of your position on whether or not boys should or should not be allowed to wear makeup or nail polish, we need to consider the freedom of expression clause identified in 1A, AND, more specifically address the differences in standards for appearance between male and female students.  Regardless of whether it is at this school (district) or any other, some would argue that what you do for one, you must do for all.  Interestingly enough, the Clyde High School Student Handbook specifically states that boys are prohibited from wearing makeup or nail polish.  When he was interviewed, Trevor’s great-grandfather, who is also his legal guardian, indicated he really did not care, and did not see the big deal.  Bottom line here is that while I think the more conservative Texas courts may uphold the decision of the administration to issue a consequence to Trevor for violating the school rules, I am hard pressed to believe that this case would result in the district winning should it escalate to SCOTUS.  Key takeaway here is, what you do for one, you do for all.  If you are going to allow girls to wear makeup and nail polish, the standard and expectation should be the same for boys.  

Key Takeaways:

  • Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
  • Symbolic speech is akin to pure speech and should be protected as such.
  • In limiting or prohibiting student free speech, educators bear the burden of being able to identify that the speech in question (pure or symbolic) will create a material and substantial disruption to the educational process as identified in Burnside.  Just because you disagree with the speech does not mean it reaches the standard set in Burnside.  
  • Students can be held to a standard in their speech if it violates district policy or the common good (i.e. You cannot run into a crowded theatre and shout, “FIRE!”).
  • If the school is going to allow the political expression of one side of a topic, it must also afford the other side to be heard, even if other students, staff, or administration would otherwise disagree with the opposing view.  
  • Discourse is part of the learning process.  Having effective discourse is part of the teaching process.  Quit manipulating the vocabulary to control the public and political narrative.  “Hurting” words do not equate to “Fighting” words.

About the author:

Dr. DJ Skogsberg has served students in Illinois for over 20 years, as a middle school teacher, community college instructor, building administrator, district administrator, and superintendent of schools.  DJ is also an instructor at Aurora University in the masters programs for educational leadership and curriculum and instruction .  He lives with his wife and three school-aged children in Plainfield, Illinois.

Education in the Era of Covid-19 – Student First Amendment Speech

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