The Volokh Conspiracy

From Hatcher v. Desoto County School Dist. Bd. of Ed. (M.D. Fla. Apr. 5, 2013):

Plaintiff [Amber Hatcher] seeks to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students.... Plaintiff asserts that school officials interfered with her First Amendment right to do so last year, and have asserted again this year that plaintiff will not be allowed to participate as she proposes....

While there are factual disputes as to what plaintiff requested last year, it is undisputed that the Desoto County High School Principal refused to allow plaintiff to engage in any of her requested activities relating to that year’s National Day of Silence. At least some of these proposed activities were well within the written policy of the School Board, and some required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence.

Plaintiff has also satisfactorily established, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all “protest” speech at the Desoto County schools that is contrary to the School Board’s written policy and the First Amendment. The Superintendent of the School Board instructed the Principal to inform plaintiff that “[i]t is inconsistent with the district’s past practice to approve student protests on any of our campuses. The attached [request from plaintiff] is disapproved.” The Superintendent also told the Principal that he “did not refer to a specific policy. Since this is classified as a protest, as evidenced by the submitted documents, I will not approve the activity on our campuses. This past practice position needs to be discussed with Miss Hatcher on April 13, 2012.” The Principal reported back to the Superintendent that she had “addressed the issue” with plaintiff, had told her several times she could not participate in the activities, and had told her “what the ramifications would be if the protest occurred.” The Principal sent an email to all teachers on the day of the proposed activities stating that a group of students “have an intention of protesting. The district has an absolute policy against protesting on school campuses.” The Principal stated that the Dean or Administration should be notified if students “are wearing placard in protest of an issue” or disrupting the hallways or classrooms, which included refusal to participate in class by taking part in a silent protest.

Of course, as the court held, any blanket “no-protest-speech” policy is clearly contrary to Supreme Court precedent. Disrupting school can be prohibited, and refusing to participate in class can be prohibited. But the policy — as found by the court — goes far beyond that, and covers even attempts to organize nondisruptive political expression. (Hatcher states that the Day of Silence would have involved “not speaking for the day at school except when called upon in class,” and thus wouldn’t have involved refusal to participate in class.) And Hatcher’s behavior the previous year, which led to her being pulled out of class, was apparently nondisruptive: “Plaintiff wore a non-vulgar t-shirt and remained silent at school. There were no incidents until after plaintiff was removed from her third period class. Her third period teacher has filed an Affidavit stating he did not call on plaintiff during class, and reported no change or disruption in his teaching of the class.”

The court ultimately declined to grant the preliminary injunction, but only because of the school’s assurances that the school would be following the written policy, which allows nondisruptive protest speech, and not the unwritten policy, which had been used to ban it. The court also allowed the student’s damages claim to go forward.

Several readers had e-mailed me about the story of a 14-year-old who was apparently told that he couldn’t wear an NRA T-shirt (which depicted a rifle), and then arrested when the dispute escalated. Yesterday, he was apparently back in school (see ABC News and Washington Times) wearing the shirt, and many classmates are wearing the shirt, too. From the Washington Times account:

Jared Marcum, 14, was joined by about 100 other students across Logan County who wore shirts with a similar gun rights theme in a show of support for free speech.

Ben White, the Charleston lawyer representing the Logan eighth-grader, said the Sons of the Second Amendment, a gun rights group, purchased and distributed the shirts....

Marcum’s lawyer is quoted as saying that the charges would be dropped. The arrest apparently stemmed not from the T-shirt wearing as such, but from the behavior at the dispute that arose as a result; there is disagreement about who was at fault for that behavior:

Video evidence in the case, Mr. White said, indicates that the situation in the cafeteria deteriorated when a teacher raised his voice while confronting Jared. Other students jumped up on benches and began chanting Jared’s name.

“I think the disruption came from the teacher,” Mr. White said.

A police officer arrested Jared after he was sent to the school office and again refused to remove the shirt.

Mr. White said Jared was arrested on two charges of disrupting the educational process and obstructing an officer ....

The school and the police department hasn’t given its side of the story. Note that the school dress code prohibits depictions of “violence” but not of weapons, and Newsom ex rel. Newsom v. Albemarle County School Board (4th Cir. 2003) held that a code that did ban depictions of weapons was likely a First Amendment violation. Thanks to Instapundit for the pointer to the most recent developments.

UPDATE: Prof. Anuj Desai reports, “My student (who is from West Virginia) informs me that ‘rarely will you ever see a dress code in WV that disallows depictions of guns on clothing, because if that were the case, no one could ever wear anything with the West Virginia University Mountaineer on it.’”

A reader e-mailed me yesterday to ask me what I thought about Taylor v. Roswell Indep. School Dist. (10th Cir. Apr. 8, 2013). I’m inclined to think that it’s about right, but in any event the facts seemed interesting enough to be worth a post. It all started with some students who opposed abortion, and who brought 2,500 rubber alien fetus dolls to school to convey their views. Here’s what happened:

Assistant Principal Brian Luck arrived and noticed the distribution. He went to his office and radioed other administrators to ask whether the students had approval for the distribution. Assistant Principal Michelle Edgett responded that the students did not have approval and told Mr. Luck he should “probably” take possession of the dolls. On his way back to the lobby, Mr. Luck saw several students throwing what looked like small rubber balls at the wall. The “balls” turned out to be dismembered heads of the rubber fetus dolls. Several female students stopped him to complain. Relentless members were not among those dismembering or throwing the dolls.

Mr. Luck approached the Relentless students and said, “It’s time to shut this down.... Some people are getting offended.” He took the remaining dolls and told the students they would be returned at the end of the day. At this point, the Relentless group had distributed more than 300 dolls at Goddard High.

Later that morning, a Goddard High administrator called the principal of Roswell High, Ruben Bolaños, to ask if a similar distribution was underway at Roswell High. Principal Bolaños was not on campus, so he telephoned a campus security officer and instructed him to investigate and to confiscate the dolls “[i]f it’s a disruption to the educational process.” Two campus security guards at Roswell High investigated and eventually determined the dolls should be confiscated.

Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

Teachers at both schools complained that students’ preoccupation with the dolls disrupted classroom instruction. While teachers were trying to instruct, students threw dolls and doll heads across classrooms, at one another, and into wastebaskets. Some teachers said the disruptions took eight to 10 minutes each class period, and others said their teaching plans were derailed entirely. An honors freshman English class canceled a scheduled test because students had become engaged in name calling and insults over the topic of abortion. A Roswell security officer described the day as “a disaster” because of the dolls.

About two weeks later, on February 11, 2010, Relentless attempted to distribute the dolls again, believing it was their Christian duty and constitutional right. Administrators at both schools immediately stopped this second distribution.

The court said that the school’s actions were generally constitutional (and that the distribution policy was constitutional on its face as well). An excerpt from the reasoning:

Continue reading ‘Interesting Student Speech Case’ »

Here’s the shirt, as photographed by one of the students who organized this:

U.S. News & World Report reports:

The debate at Celina High School started after two female high school students celebrated the high school’s “Twin Day” last week by wearing shirts to school that read “Lesbian 1″ and “Lesbian 2″ on the back. They were promptly asked to remove the T-shirts, according to students there.

On Tuesday, some 20 students decided to show their support of the girls by wearing their own T-shirts to school. The shirts read: “I support...” with a photo of a rainbow. “Express yourself.”

The students say that the shirts were banned on the grounds that they were “political,” though there seems to be no policy banning political shirts, and indeed (the students say) many other students often wear political shirts. According to the article, administrators “agree the students who wore the rainbow T-shirts were asked to remove them,” but say that this is likely because the shirts were seen as “disruptive.”

Under the Tinker v. Des Moines Independent School District (1969) decision, public K-12 schools are indeed entitled to restrict student speech when it poses a material risk of substantially disrupting school work, and courts have generally read this as covering speech that is disruptive only because its viewpoint arouses hostility from viewers. The “heckler’s veto,” under which speech is restricted because it may lead to misconduct by listeners or viewers who disagree with it, is generally not allowed in most contexts, but it is allowed — given the Tinker substantial disruption standard — in public K-12 schools.

Still, courts generally require some serious evidence of likely disruption, and not just administrator speculation; consider, for instance, the “Jesus Was Not a Homophobe” T-shirt case. And I’m not sure that such evidence can be found here.

Moreover (assuming the U.S. News account is accurate), even if the school does have evidence that such T-shirts are likely to be substantially disruptive, that reflects quite badly on the school. If the students there haven’t been taught to react calmly to people expressing politely phrased messages such as this, then the administrators should take urgent steps to try to teach that.

Thanks to commenter Zuch for the pointer.

So reports Philly.com, and there appears to be some acknowledgment from the school district that the teacher acted improperly:

The teacher allegedly told the girl to take off the shirt, saying it was like wearing a Ku Klux Klan sheet. The teacher allegedly threatened to use a marker to cross out Romney’s name and that of Rep. Paul Ryan, his running mate. The teacher also allegedly tried to throw the student out of class.

The teacher also allegedly said that Carroll was “a Democratic school.”

A school district spokesman confirmed that “a teacher made some comments to a student wearing a Romney t-shirt in their classroom. The comments were of a political nature, and also of a personal nature. We are looking into the comments, and the conduct of the teacher.” The teacher has been apparently temporarily shifted to a different class “to allow the student to feel comfortable to come to the class,” and the school official acknowledged that the student “was expressing her freedom of speech, and was not in violation of any school or district policy.”

FoxNews has a TV interview in which the student made the allegations on-camera. According to a follow-up Philly.com story, the girls’ parents met with the teacher and the principal, and “the teacher insisted she had been joking, then stormed out and left the school.” The girl’s father also states that he was given the option of filing a formal complaint, or “letting the principal handle the incident, with the teacher getting some form of training.”

If anyone has more factual details, or pointers to stories that mention any statements by witnesses or school officials, please let me know. Thanks to Paul Milligan for the pointer.

USA Today reports that a boy in an Oklahoma City kindergarten was required to turn his t-shirt inside-out because it violated state policy concerning appropriate school attire.

Cooper Barton, 5, comes from a family of Michigan fans. He went to school wearing a maize and blue shirt with “The Big House,” the nickname for Michigan’s 114,000-seat stadium, written on the front. The school principal made Cooper turn the shirt inside out due to the state policy.

The rule is among many restricting clothing and dress in the city schools. It came into effect in 2005 after suggestions from a gang task force. On the list of banned items, non-Oklahoma college dress falls directly in between gang symbol haircuts and “satanic cult dress, witchcraft and related symbols.”

More here.

I’m working right now on the Reply Brief in Frudden v. Pilling, a case I’m litigating in the Ninth Circuit; the chief (but not only) issue is whether Wooley v. Maynard, which held that people have the First Amendment right to obscure a state motto on license plates, secures public school students’ right to obscure a school motto on the mandated school uniform shirts. In case you’re interested, here are the relevant documents:

1. The district court opinion, which upheld the policy.
2. Our opening brief. [UPDATE: Fixed broken links, sorry about the glitch.]
3. The other side’s answering brief.
4. The Student Press Law Center amicus brief.
5. The Alliance Defense Fund amicus brief.

It’s a fun case, and I look forward to finishing the reply brief (due next Friday), and, I hope, arguing it late this year or early next. Many thanks also to the SPLC and the ADF for helping us out.

UPDATE: Meant to include the amicus briefs, but forgot at first. I must be more tired than I thought I was ....

Here’s a letter the ACLU of Connecticut wrote on the student’s behalf last week (italics added):

We are writing on behalf of Wolcott High School junior Seth Groody and his parents. He states that Wolcott High School recently sponsored a “Day of Silence,” designed, in his understanding, to promote tolerance for alternative lifestyles, including homosexuality. He wore to school that day a tee-shirt that depicted, on one side, a rainbow — the commonly-recognized symbol of gay rights — with a slash through it and, on the other, a male and female stick figure, holding hands, above the legend, “Excessive Speech Day.” His purpose in wearing the tee-shirt was to express his dislike for gay marriage and his opposition to the perceived message that was promulgated by the school. He was ordered to remove the shirt, and, under protest, he did so.

To the best of Seth’s knowledge and belief, Wolcott High School has no rule or policy that prohibits the wearing of expressive attire. His wearing of the shirt did not “materially or substantially interfere with ... the operations of the school,” or cause “invasion of the rights of others,” as these terms have been defined in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and its numerous progeny.

The school’s actions in requiring Seth to remove his tee-shirt, absent evidence of material and substantial interference, or invasion of the rights of others, violate the First Amendment to the United States Constitution and Article First, Sections 4 and 5, of the Constitution of Connecticut. The present matter is on all fours, not only with Tinker (in that Seth’s tee-shirt is indistinguishable from Mary Beth Tinker’s anti-war armband), but, even more saliently, with the recent unanimous Seventh Circuit decision in Zamecnik v. Indian Prairie School Dist. No. 204, 636 F.3d 874 (7th Cir. 2011). There, as here, a school — seemingly at the behest of a private gay rights group — sponsored a ‘‘Day of Silence” in support of gay rights. The next day, the plaintiff, Zamecnik, and like-minded classmates proclaimed a “Day of Truth,” and Zamecnik wore a tee-shirt similar to Seth Groody’s: on its front, it bore the motto, “My Day of Silence, Straight Alliance” (emphasis in original), and, on the back, another motto: “Be Happy, Not Gay.” A school official inked out the phrase “Not Gay,” claiming that it breached a school rule against various kinds of “derogatory” comments.

The Seventh Circuit pronounced the school official’s actions unconstitutional under Tinker, because the inked-out phrase was not derogatory, towards individuals, to the point of constituting unprotected “fighting words” — even allowing for a generous definition of the concept in the high school context. In reaching this conclusion, the court both questioned and distinguished a Ninth Circuit ruling, Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), which had allowed school officials to ban a tee-shirt that said, “Homosexuality is Shameful.” As Zamecnik explained, the Harper slogan did constitute personally demeaning fighting words which, as such, were at least arguably invasive of the rights of others. But Zamecnik’s slogan personally demeaned no-one — and neither, indeed still less, did Seth Groody’s. Since Zamecnik’s tee-shirt was protected, so, all the more, is Seth’s.

In event of litigation, the school district, if unsuccessful, could be liable for plaintiffs damages and attorneys’ fees. In addition, implicated school officials could forfeit their qualified immunity and become personally liable, for damages and attorneys’ fees, if they violated clearly established constitutional rules of which they ought to have known. E.g., Doninger v. Niehoff, 642 F.3d (2d Cir. 2011). They could also be assessed punitive damages if a court were to find that they had acted with “reckless or callous indifference” to these rules. Smith v. Wade, 461 U.S. 30, 56 (1983).

In light of these well-settled doctrines, we respectfully request your written assurance that neither Seth Groody, nor other Wolcott High School students, will be forbidden hereafter to wear the tee-shirt at issue, or similar tee-shirts that likewise do not demean individuals on the basis of sexual orientation or other core characteristics. In requesting such assurance, we acknowledge the school’s power to protect itself and its students to the full extent permitted by Tinker, Zamecnik, Harper and kindred decisions.

If you or school counsel would like to discuss this matter further, please do not hesitate to call upon us.

Thanks to Ilan Meyer for the pointer.

UPDATE: The very first comment says, “Liberalism allows for no dissent.” Odd, given that — as another commenter duly noted — the ACLU of Connecticut is defending the dissenter. (Or was the commenter’s point that the liberal ACLU is refusing to let the school district dissent from the free speech orthodoxy? I somehow doubt that.)

I blogged last month about the school district’s refusal to allow the shirt; “the message communicated by the student’s T-shirt,” the district argued, “was sexual in nature and therefore indecent and inappropriate in a school setting.” The student sued on First Amendment grounds, and Lambda Legal reports that the district has settled; here are the key terms:

2. The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses....

4. Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.

Thanks to my coblogger Jonathan Adler for the pointer.

That’s what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:

It is the position of Wayne Local School District Board of Education that the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.

The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)

Indeed, even Morse v. Frederick (2007) acknowledged that Fraser “should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.” This is precisely what’s at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.

To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn’t even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was “a highly charged atmosphere” in the school, a justification that’s insufficient under Tinker.)

So this strikes me as pretty clearly unconstitutional, at least absent some showing of material disruption caused or likely to be caused by the T-shirt. An application for a temporary restraining order, aimed at setting aside the principal’s decision, was filed yesterday in federal district court, and is now pending (Couch v. Wayne Local School Dist., No. 1:12-cv-00265-MRB). For more, see this Cincinnati Enquirer article. Thanks to Prof. Howard Friedman (Religion Clause) and Thomas Riebs for the pointer.

The Lynn (Mass.) Daily Item reports:

A Lynn English High School student reprimanded for wearing a t-shirt which read “All the cool girls are lesbians,” set off a debate during Thursday’s School Committee meeting on the school dress code and how it is enforced....

Kennedy told committee members Thursday that she received a letter from a student who was asked by one of the vice principals to cover her t-shirt and never wear it again....

In the letter, the student said she was sitting in the cafeteria at lunch when a teacher told her to show Vice Principal Joseph O’Hagan her shirt. O’Hagan, she wrote, agreed with the teacher that the shirt was inappropriate. When she asked why, the student said she was told, “Because it’s political and offensive to some people.” ...

English Principal Thomas Strangie ... said a student can be made to cover up a shirt that is deemed disruptive, “and that (shirt) could have been disruptive. It was nothing against her.”

Of course, at this point this is just an allegation by the girl; but if it’s accurate, then the school’s actions violate the First Amendment, unless there’s some showing that the T-shirt had materially disrupted class, led to fights, or posed a demonstrable risk of doing either. The mere possibility that the T-shirt might be disruptive, absent some real evidence that disruption was likely, is not sufficient to justify restricting it. Of course, I take the same view as to anti-homosexuality T-shirts. (Note that the case I condemn in the post I just linked to, a case that did justify suppression of anti-homosexuality T-shirts even in the absence of a showing of actual or likely disruption, was vacated and is therefore no longer precedent.) Thanks to Thomas Riebs for the pointer.

UPDATE: As commenter David Chesler notes, the principal’s action likewise likely violates Massachusetts student speech law: “The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.” See also Pyle v. School Comm. of South Hadley (Mass. 1996) (concluding that “The clear and unambiguous language protects the right of the students limited only by the requirement that any expression be nondisruptive within the school,” that the statute thus codifies the Tinker test, and that the statute rejects any exception for vulgarities set forth in Bethel Sch. Dist. No. 403 v. Fraser (1986)).

As I’ve said before, the Supreme Court has never decided whether K-12 schools may remove books from school libraries based on their viewpoints, or may filter out Web sites based on their viewpoints. The Court’s cases dealing with this question, Board of Ed. v. Pico and U.S. v. American Library Ass’n were badly splintered and provided basically no majority on the subject.

Pico, for instance, split 4-4 on the book removal issue, with the deciding vote (Justice White) expressing no opinion and sending the case down for more factfinding. (“The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case.”) Likewise, ALA yielded no useful conclusion.

This makes yesterday’s Parents, Families & Friends of Lesbians & Gays, Inc. (PFLAG) v. Camdenton R-III School Dist. (C.D. Mo. Jan. 15, 2012) especially interesting: The court issued a preliminary injunction against a school district’s use of a filter that apparently generally filtered out pro-homosexuality sites — including ones that weren’t sexually explicited — but not anti-homosexuality sites. (“URL Blacklist systematically allows access to websites expressing a negative viewpoint toward LGBT individuals by categorizing them as ‘religion’, but filters out positive viewpoints toward LGBT issues by categorizing them as ‘sexuality’.”) The court held that government’s continued use of this filter, especially given the availability of other filters that did better both at blocking outright porn and at not blocking commentary on homosexualiy, was likely viewpoint discriminatory and therefore unconstitutional, which led it to issue a preliminary injunction. The standard for issuing such an injunction was (in part) that plaintiffs showed “a ‘fair chance’ that [their claim] will succeed on the merits”; but the court’s reasoning suggests that the court is even more persuaded on the merits than that.

This might prove to be the correct result, but the court’s reasoning strikes me as conclusory. Here, as best I can tell, is the heart of the court’s analysis:

Camdenton’s internet access system in its library is neither a traditional nor a designated public forum. United States v. Am. Library Ass’n (“ALA”), 539 U.S. 194, 205 (2003) (plurality opinion) (internal quotes omitted). It is a nonpublic for[um]. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). But “the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Id.

Yet the statement that the system “is a nonpublic forum” is unsupported. School-provided Internet access indeed isn’t a traditional or designated public forum, but that just means that it’s either a nonpublic forum or not a forum at all. This last category, described in Arkansas Educ. Television Comm’n v. Forbes, involves situations where the government chooses to use its property to present speech that it likes and not speech that it dislikes. A government-run public television station, for instance, may air anti-racism programs but not pro-racism programs without violating the First Amendment; a school-provided bulletin board can display messages the school favors but not ones the school opposes; the government may accept for park display monuments that celebrate some things but not others.

Now the scope of this not-a-forum-at-all doctrine is not clear, and it might be that when it comes to government provision of access to a vast range of others’ material, in a situation where few people would see the government as endorsing all that material, the “nonpublic forum” category — with its prohibition on viewpoint discrimination — is more fitting than a “not a forum at all” category. But that conclusion has to be supported; as best I can tell, the district court instead just asserts it.

The district court does cite to Pratt v. Indep. School. Dist. No. 831 (8th Cir. 1982), which held unconstitutional the exclusion of material even from a school curriculum — given this, exclusion of material from library access would be even more clearly unconstitutional. But Pratt (which strikes me as very badly wrong) seems to me not to survive Hazelwood School Dist. v. Kuhlmeier (1988), which held that the government had very broad control over school curriculum. That control (controversially, though I think correctly) was held to include control over a student newspaper produced as part of a journalism class. Even more clearly, it would include control over what movies are shown as part of the school curriculum, the issue in Pratt. So while Hazelwood doesn’t dispose of the library filtering question, since it’s not clear whether it should be treated as a “curriculum” matter, Hazelwood does mean that Pratt is no longer a viable precedent.

Finally, one twist: According to the court in PFLAG, the school denied that it was engaged in viewpoint discrimination, and thus didn’t argue that the viewpoint discrimination was justifiable. “Camdenton has repeatedly said that its goal is not to protect its students from websites expressing a positive view toward LGBT individuals, or that such websites interfere with the requirements of appropriate discipline. Rather, Camdenton has argued that its internet-filter system does not discriminate based on viewpoint.” So perhaps the case could be decided just on that ground — but the court’s reasoning, as I understand it, goes further and says that all viewpoint discrimination in library filtering is presumptively unconstitutional, whether or not it is a deliberate and substantively defended decision on the school’s part. The case thus strikes me as an interesting and important decision, though vulnerable on the grounds I mentioned.

Here’s a bill currently being considered by the Arizona Legislature:

A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:

1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension....

2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension....

3. For the third occurrence, the school shall terminate the employment of the person....

B. For the purposes of this section, “public school” means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.

What a silly bill. First, what’s the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers’ vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?

Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the FCC’s current, more restrictive, standards a classroom discussion at Arizona State’s law school on the “Fuck the Draft” case can use the word “fuck,” but who knows, given the FCC standards?

Now, to be sure, the government acting as employer has considerable authority to restrict its employees’ speech, even when the restrictions are vague, at least outside the context of university teaching. (For cases striking down as unconstitutionally vague certain restrictions on speech in university teaching, see Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996); Silva v. University of N.H., 888 F. Supp. 293 (D.N.H. 1994).) And some such restrictions are necessary. Even government employers must be free to discipline employees for rudeness to coworkers or to members of the public, even without a clear definition of “rudeness.” Likewise, teachers who say cruel things to their students should be disciplined even without a clear definition of “cruel,” and the same may apply to inappropriate vulgarities. But this sort of judgment, it seems to me, is best handled through internal employment decisions that are based on administrators’ judgment of what works for this particular job, at this particular grade level in this particular subject at this particular school, not through the legislature calling on administrators to apply federal communications law standards that are confusing even to communications lawyers.

Third, the bill on its face potentially applies even to off-the-job speech (and “conduct”), since it covers any “person who provides classroom instruction in a public school” without limiting it to action while providing classroom instruction in a public school. That, though, is a comparatively minor drafting glitch that could be easily fixed in the legislative process — unlike the other problems I identify. [UPDATE: Just to be clear, by "potentially" I mean that the language can be so interpreted, not that it will necessarily be so interpreted; the glitch is in the ambiguity, not in the language unambiguously applying to off-the-job speech.]

Now I’m not saying such a bill would necessarily violate the First Amendment, at least setting aside the possible vagueness problems at the university level, and limiting the bill to on-the-job speech. Public employers are entitled to speak, for instance by teaching particular subjects to students in a particular way. To speak, they need to hire employees to speak for them. The employers must therefore have the right to dictate what employees who speak on the employer’s behalf say, and to fire employees who turn their government-provided platform into the employee’s own show rather than the government’s. (I think that’s true even as to public universities, possibly setting aside some heightened vagueness concerns. For good institutional reasons, such universities give their professors a good deal of flexibility, but if UCLA demanded that I teach a particular set of topics in my class, or teach them from a particular viewpoint, or teach them without using certain words, I think UCLA would be within its constitutional authority.)

But that the state may do this doesn’t mean it should do this — and here, I see no good reason for the state to enact such a law, and good reasons for it not to.

The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question “no” said, among other things, quotes Leviticus 20:13 (“If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them.”). The school district then publicly apologized for the column, as an “[o]ffensive article[] cultivating a negative environment of disrespect,” and said that it is “taking steps to prevent items of this nature from happening in the future.” And in a Fox interview, the school superintendent labeled the column a form of “bullying.”

Now I’ve long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.

But what troubles me here is the superintendent’s willingness to label such speech as a form of “bullying,” which is speech that schools often ban even outside the school’s own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District’s bullying policy provides that “bullying” may lead to “warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior.”

I’ve long been troubled by anti-bullying policies and criminal laws, partly because “bullying” is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term “bullying” this broadly.

Dariano v. Morgan Hill Unified School District (N.D. Cal.), decided the day before yesterday, upholds a California high school’s decision to forbid students from wearing American flag T-shirts on Cinco de Mayo. (See here and here for more on this case.)

The decision might well be correct under Tinker v. Des Moines Independent Community School Dist. (1969), which allows a “heckler’s veto” in K-12 school: Schools may indeed restrict student speech when it’s likely to cause substantial disruption, even when the disruption stems from other students’ hostility to the speech. As I mentioned in an earlier post, I think the speech restriction violates a California statute that gives students extra protection, but that claim wasn’t raised in this federal lawsuit.

Yet while the judge might have been right in his decision, the situation in the school seems very bad. When we’re at the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it — on May 5 or on any other day — and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech), something is badly wrong. Here’s an excerpt from the court opinion describing the facts that led the court to uphold the restriction:

On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting “USA” as this flag went up. This was in response to a group of Mexican students walking around with the Mexican flag. One Mexican student shouted “fuck them white boys, fuck them white boys.” Vice–Principal Rodriguez directed the minor to stop using such profanity. The minor responded by saying “But Rodriguez, they are racist. They are being racist. Fuck them white boys. Let’s fuck them up.” Vice–Principal Rodriguez removed the minor from the area....

When Plaintiff M.D. wore an American flag shirt to school on Cinco de Mayo 2009, he was approached by a male student who shoved a Mexican flag at him and said something in Spanish expressing anger at Plaintiffs’ clothing....

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