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Know Your Rights: The First Amendment from Kindergarten to College

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Know Your Rights: The First Amendment from Kindergarten to College

Fifty years ago, the Supreme Court declared in the landmark case Tinker v. Des Moines Independent Community School District that students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But is that still true — and if so, what does the First Amendment mean in today’s world of Snapchat, TikTok, Twitter? As book-banning sweeps the nation, what about school libraries — are they protected by the First Amendment? Do students have a First Amendment right to access certain titles? And how about attendance and curricular issues? And how about when students arrive on college? Do their rights change? In this course, we’ll review all of these questions and more. Students: Know your rights!

Presenters

Will Creeley
Legal Director
Foundation for Individual Rights in Education - FIRE

Transcript

- [Will] All right, hello everybody. Good afternoon, good morning, good evening, whatever time it is, glad you're here with me. My name is Will Creely, I'm the legal director for the Foundation for Individual Rights and Expression, and it's my pleasure and honor to team up with Quimbee for this continuing legal education program, Know Your Rights, The First Amendment From Kindergarten to College. I've worked defending First Amendment rights, particularly student and faculty rights with fire for 16 years, and I'll spare you the rest of my bio, but just know this, I've done my share of defending student and faculty First Amendment rights. We'll talk about some of those cases, and some of those rights here today. Really quick, what is the Foundation for Individual Rights and Expression? Well, we are a proudly nonpartisan, non-profit 501 3. Been around since 1999. Our whole gig is defending core civil liberties, especially at our nation's colleges and universities. Actually, I should say that was our whole gig until June 2022, when we expanded to off campus work as well, and we changed our name from the Foundation for Individual Rights in Education to the Foundation for Individual Rights and Expression. You can check us out at www.thefire, T-H-E F-I-R-E, dot O-R-G. We'd love to have you visit us on the web, and learn more about our case work. Pretty interesting stuff if I do say so myself. It's been a joy to work there for the past 16 years. Variations on a theme, as I like to say, always someone being censored, but the facts are always interesting. And especially so now that we have lifted our gaze beyond campus and are working nationwide. But today very much we're gonna be talking about student rights and the First Amendment in the K-12 and college context. Basically, what you've gotta know if they take one thing away from today's class, the First Amendment protects students. We'll review the K12 speech cases, the classic foundational cases that you may remember from high school or even college or law school. Like Tinker v. Des Moines Independent Community School District. We'll go all the way back to the 1930s, and all the way to today's social media cases, including the notorious Snapchat. Speaking of Snapchat, we will talk, of course, about the Supreme Court's summer 2021 decision in BL V. Mahanoy Area School District, so stay tuned for that. And as I record this in late summer 2022, the headlines are filled every day with fights over K-12 curricula and book banning, and all the rest of it. So we'll cover the basics there. What does the First Amendment have to say about grade school control? Who controls the educational pedagogical curricular decisions at the K-12 level? And what, if anything, the First Amendment has to say about removing books from K-12 libraries. And we'll close with a quick review of the difference between your rights as a student in the K-12 context and the grade school context, and your rights as a student at our nation's public colleges and universities. There is a distinct difference, and we will cover it. So, without further ado, let's get started. We've got a lot of ground to cover. Let's start with the foundational cases from the kindergarten through 12th grade context, our K-12 speech cases. That high school off in the distance, why that's my Alma mater. That's beautiful City Honor School in Buffalo, New York. And that big gray monolithic part, well that wasn't there when I attended, I just had that big white building, formerly Fostic Maston High School, now City Honor School. Great place to go to school. If any City Honor grads are listening gimme a shout, [email protected] For the rest of you, let's plow ahead. All right, first of all, we're gonna start our tour of K-12 speech rights with kind of a special subset of the First Amendment, freedom of conscience. Your right to say what you want, to think what you want, to believe what you want, without the government forcing you to adopt its official position. We're gonna start with this letter from young Billy Gobitas, a resident of Minersville, Pennsylvania. In 1935, Billy wrote this letter. Dear Sirs, addressed to our school directors. Dear Sirs, I do not salute the flag because I have promised to do the will of God. That means that I must not worship anything out of harmony with God's law. In the 20th chapter of Exodus is stated thou shall not make unto thee any graven image, nor bow down to them nor serve them for the Lord thy God am a jealous God. Visiting the iniquity of the father upon the children, under the third and fourth generation of them that hate me. I am a true follower of Christ. I do not salute the flag, not because I do not love my country, but I love my country, and I love God more, and I must obey his commandments. Your pupil, Billy Gobitas. Now Billy was a Jehovah's Witness, and as folks know, perhaps if you remember from your Conlaw classes, or if you work in civil liberties, you know that a great many foundational First Amendment and other civil liberties cases involve Jehovah's Witnesses as plaintiffs. They were a persecuted religious minority, and they often vindicated their rights in court, including many landmark court cases like this one. So Billy, because of his faith, did not pledge allegiance to the flag. Now in 1935 students used to pledge to the flag using the Bellamy salute pictured here, which is creepy as hell by today's standards. It looks an awful lot like a Nazi salute. You can see it's arm straight, palm upwards. It's like a reversed upside down Nazi salute, but that was the way that folks saluted the flags up until world war II, when the resemblance to the Nazi salute made it untenable. And we now adopt, then adopted the hand over heart salute that we now know so well. But back then Billy refused to pledge allegiance to the flag, as he just explained in his letter his reasons why, and he was punished for failing to do so. In fact, the Gobitas children really got quite a bit of local persecution. The town school board responded by passing a resolution calling the refusal to cite the flag, an act of insubordination and the children, Billy and his sister, Lillian, were expelled. The consequences for their, their action, did not stop there. They were beaten up. The family, the Gobitas family, was made fun of on the streets. There was a boycott organized of the family's grocery store, and they were just about driven out town. The case goes up to the Supreme court, and the Supreme says "Well, there's no First Amendment violation here. "In fact, national unity "is the basis of national security. "And the legislature is free to work in different ways "to attain this national unity. "And that's just how it is here." Now, perhaps this is the court reflecting on the growing threat of totalitarian, totalitarianism elsewhere. Perhaps this is the court thinking that we here in the United States had better rally around the flag, and a little compulsory pledge would not be out of place in our nation's public schools. But the impact of the court's ruling was striking. There were violent attacks. Folks interpreted this ruling as handing out free permission, free pass to go after Jehovah's Witnesses. There were groups of Jehovah's Witnesses who were run out of town, groups who were castrated. People were pushed across state lines by mobs. They were tarred and feathered, beaten, even jailed, allegedly for their own protection. The, the shocking and dark chapter in our nation's history, the reaction to Minersville V. Gobitas, such that Elanor Roosevelt took to the airwaves to plead for tolerance and patience. The opinion really struck a cord with the nation's public, and things got very ugly very quickly. It got so bad that the court, members of the court started to reconsider their opinion. The consequences of the opinion were such that they started to think maybe we got it wrong. A few years later, they had a chance to explain as much. West Virginia state Board of Education V. Barnett, similar fact pattern, different result. Here, the Barnett sisters were Jehovah's Witnesses, likewise expelled from school for refusing to say the pledge. The court grants cert, and this time they reach a different result. Quick fun fact before I dive into the results of Barnett, both Gobitas and Barnett, the official captions are misspelled. Gobitas, the last name is spelled G-O-B-I-T-A-S. In the court caption t's G-O-B-I-T-I-S. In a weird rhyme of jurisprudential history, the Barnett sisters did not have the extra E on their name that is depicted in the caption. It's B-A-R-N-E-T-T. So, fun fact, I don't know when that's ever gonna come up on "Jeopardy," but if it does, you will be ready. So, anyway, in West Virginia State Board of Education V. Barnett, an opinion delivered just three years after 1940s, the 1940 Gobitas decision, Justice. Robert H. Jackson wrote for the majority, and delivered a stirring defense of individual autonomy, freedom of conscience, and the right to be free of compelled speech. And it's just such a gorgeous opinion that I always recommend non-lawyers, anybody who's not an attorney, but would like to read some just beautiful and stirring, and I think quite moving legal writing, to read this opinion. If you only read one legal opinion in life, read this one. In fact, you should pause the CLE right now, go read it, come back. I'll give you a little taste here, if you'll indulge me, 'cause it is that kind of opinion. It's the kind of thing you wanna read out loud. Here we go. Justice Robert Jackson, he writes, "As governmental pressure towards unity "becomes greater, so strife becomes more bitter "as to whose unity it shall be, "probably no deeper division of our people "could proceed from any provocation "then from finding it necessary to choose what doctrine, "and whose program public educational officials "shall compel youth to unite in embracing. "Ultimate futility of such attempts to compel coherence "is the lesson of every such effort "from the Roman drive to stamp out Christianity "as a disturber of its Pagan unity, "the inquisition as a means to religious "and diagnostic unity, the Siberian exiles "as a means to Russian unity, "down to the fast failing efforts "of our present totalitarian enemies. "Those who begin coercive elimination of dissent "soon find themselves exterminating dissenters. "Compulsory unification of opinion "achieves only the unanimity of the graveyard. "It seems trite but necessary "to say that the First Amendment to our Constitution "was designed to avoid these ends "by avoiding these beginnings. "There is no mysticism in the American concept "of the state or of the nature or origin of its authority. "We set up government by consent of the governed, "and the Bill of Rights denies those in power "any legal opportunity to coerce that consent. "Authority here is to be controlled by public opinion, "not public opinion by authority." I mean, if that just doesn't get to the heart of the First Amendment, I don't know what does. Here at Fire, we named our legal fellowship The Justice Robert H. Jackson Fellowship in large part because of the beauty of that opinion, which serves as our load star here. And I think all of us would do well to read that once in a while and reflect on it. So, anyway, so the court in Barnett reverses its Gobitas decision. I always tell my kids this, that the right not to say The Pledge of Allegiance is just as an important part of being an American as saying it in the first place. That is what it's all about. You have the freedom to choose here. So let's fast forward now from Barnett to 1969's Landmark Tinker V. Des Moines Independent Community School District, and start talking about the right to, not to refrain from speaking as in Gobitas and Barnett, but the right to speak. What First Amendment rights the students like John and Mary Beth Tinker, pictured here, have. Well Tinker is a famous case, and you can see there John and Mary Beth Tinker holding their black arm bands. And these armbands, they wore them to protest the ongoing Vietnam war. And they were young at the time, they were in high school. John was just 15, their friend, Chris Eckert, who likewise wore the arm band was 16. They were in high school. Mary Beth was a 13 year old in junior high. And they wanted to demonstrate their objection to the war in Vietnam. So they wore these black arm bands during the holiday season, and took them to school as well. And the principals of the school said "Wait a second, "this sounds like trouble." They adopted a policy over the winter holidays in 1965 saying that if any student wore an arm band to school, they'd be asked to remove it, remove the arm band, and if they didn't they'd be suspended. So Mary Beth and Christopher, and John eventually all wore the arm bands, and sure enough they were all sent home suspended. They challenged that suspension in federal court. Case makes its way up to the high court. The Tinker court found that the wearing of the arm bands was protected, that students in a famous turn of phrase do not check their rights to freedom of speech or expression at the schoolhouse gate. The Tinker rule, this is kind of the high watermark for K-12 speech rights, as we'll see. The tinker rule says that if there isn't substantial disruption of or material interference with school activities, the speech at issue is protected. The only other possibility would be if the speech invades the rights of others. At that point, it could also be regulated and prohibited, but that is it. Otherwise it's protected speech. And that was the rule for a good long time. The court did not revisit speech rights in the K-12 context until 1986 Bethel School District number 403 V. Fraser. And there's Fraser there, Matt Fraser, who, when he was in high school, delivered a bawdy, we'll go with that adjective, a bawdy nomination speech for one of his friends for student government at a high school assembly attended by 600 students. The speech, well, let's read it. You know, we're gonna go from the high, the beauty of Justice Robert H. Jackson to the, well, something less than beautiful words of, of Matt Fraser nominating his friend. "I know a man who's firm. "He's firm in his pants, "he's firm in his shirt. "His character is firm, "but most of all his belief in you, "the students of Bethel is firm. "Jeff Coleman is a man who takes his point "and pounds it in..." You know what, we won't read the whole thing. Suffice to say that the nomination speech was laced with double entendres and sexual innuendo, and the students who were in attendance, the 600 students, the 600 high schoolers, reacted to the speech with both confusion on the part of some of the younger students, and outbursts on the part of the older students. So whatever purpose Matt Fraser thought he was serving, he served it, but he also wound up in trouble as a result of this speech. He was disciplined for giving this, this assembly speech. And he filed suit saying that his discipline was a violation of his First Amendment rights, and that the school's disruptive conduct code was unconstitutional vague and over broad. After he won at both the district court and the ninth circuit unit, court of appeals for ninth circuit, the school district appealed to the Supreme Court, and the Supreme Court reversed. Again. I say Tinker was a high watermark, so here comes the erosion of Tinker. In an opinion written by Chief Justice Berger, the court reversed, and did so on interesting grounds. The court said that public schools have a job, and that job is to quote, prepare pupils for citizenship in the Republic, that they must, and this is one of my favorite verbs, they must inculcate the habits and manners of civility as values in themselves, conducive to happiness and as indispensable to the practice of self-government in the community and the nation. In other words, they have to teach their charges, their students to behave, to conduct themselves in respectful ways, to be civil. And that the school's punishment here in response to what the court characterized as offensively lewd and indecent speech was justified. It was all right to punish Matt Fraser for delivering his, what did we go with, bawdy? For delivering his bawdy speech to 600 students, which the court noted were a captive audience, and that some were confused and discombobulated by the speech. The court says the First Amendment gives a high school student the classroom right to wear Tinker's arm band, but not Cohen's jacket. And of course that's a nod to the Supreme Court's decision in Cohen V. California in which the jacket worn by Cohen in the courtroom was emblazoned with the words fuck the draft. In other words, Cohen can wear that jacket as an adult in a courtroom, but a high school student like Matt Fraser and his peers, well, they couldn't wear that. You can wear Tinker's arm band, but not Cohen's jacket. All right. so that's the first chip out of Tinker. Just two years later, in Hazelwood School District V. Kuhlmeier we'd see another chip. And this man right here, that's Robert Eugene Reynolds, who was the principal of Hazelwood East High School, and he found himself in a dispute with a student journalist at Hazelwood who had prepared a copy of their newspaper with articles about student experiences with pregnancy, an article about students' parents going through divorce. So fairly, I mean, frankly hard hitting high school level student journalism, and journalism that principal Reynolds decided was far beyond the pale. The teacher who was in charge of the paper, 'cause this was a paper run under the auspices of the school's educational programming, it wasn't an independent student newspaper, a teacher showed the article to the principal, and submitted the page proofs to the principal. And the principal thought these articles are inappropriate for the high school audience, and said "You know what, "we're gonna just cut these articles right out of the paper. "And we're going to censor the paper, "and not publish the articles as written." The students filed suit, works its way up to the Supreme Court. And, again, in another bite out of Tinker, the court says that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. All right, so to recap, we've got Tinker which says absent substantial disruption or material interference, or the invasion of the rights of others, the speech is protected. And then that's weakened by Bethel which says well, you know what, if it's lewd and indecent, and doesn't inculcate the habits of civility, you can punish that too. And now we've got Hazelwood, which says when the school is running an activity, and it's expressive, the school can exercise editorial control over what students say in that expressive activity so long as they do so in relation, reasonable relation to legitimate pedagogical concerns. I attended a conference once where the editor of that school paper at Hazelwood and Principal Reynolds were reunited some 30 years after the decision in Hazelwood, and they, as I recall, I don't think they had seen each other in that time, and, boy, I will tell you, they were still both mad as hell. They both still felt as though they were absolutely on the right side of the law here, and it was just a fascinating panel discussion between the two of them. It reminds you that there are real folks here who are affected. Principal Reynolds here was vindicated, and the student journalist learned a lesson about the limits of their First Amendment rights, a lesson that has been remedied in many jurisdictions by the passage of quote, new voices legislation. This is a product of the good folks over at the Student Press Law Center, SBLC.org, who have led the charge to ensure that Hazelwood and its progeny do not restrict the rights of student journalists. And Hazelwood has since been imported in some jurisdictions in the seventh circuit particularly, into the college context, which is unfortunate, and something my organization has argued strongly against. But these state laws make clear that students have editorial control of their own publications, and that's, it's commendable. So you should check to see if your state is one of the states that has passed New Voices Act. All right, so moving along to the next bite out of Tinker in Morris V. Frederick, a 2007 case. So we went from 1988, and we waited just about 20 years, the court revisited student speech rights in Morris V. Frederick. And you may remember this one, the infamous bong hits for Jesus case. There's the flag, sorry, the banner that was held outside of the high school in Alaska, attended by Joe Frederick, Joseph Frederick, who was a senior. He arrived at school, joined his friends, and lined up across from the school, across the street from the school, to watch the passing of the Olympic torch through Juno, Alaska. It was headed to Salt Lake City for the winter games. And the torch bearers were running right in front of Juno Douglas High School while school was in session. And Morris is the principal, and Frederick is the student here. Frederick and his friends, unfurl this banner, and it reads bong hits for Jesus. And what I always like about this opinion, and maybe it's the only thing I like about this opinion, 'cause I don't agree with the way the court came down here, is that the court faithfully reproduces the capitalization choices of the students here. It's capital B-O-N-G, capital H, lowercase i, capital T-S, numeral four, Jesus. BONG HiTS 4 Jesus. A drug reference, of course, right? So for displaying this banner, for unfurling, it, the students were punished, and Frederick was suspended for advocating the illegal, use of illegal drugs. For appearing to advocate the use of illegal drugs in the midst of his fellow students during school hours at a school sanctioned activity. He challenged that discipline. And, again, the case goes up to the high court. And the court says this was all right, because the speech could reasonably be regarded as encouraging illegal drug use that it was reasonable for the principal to punish the student. And to conclude, as Chief Justice Roberts wrote in his majority opinion that to fail to act would send the message that the school didn't really care about drug use. This was all right. So the problem here from my vantage point, just to editorialize for a minute, is that the court never recognizes this for what it is, a joke. The court says if it has to do with illegal drugs, and could reasonably be regarded as encouraging them, well, you can cut that right out of Tinker too. So that's yet another bite out of Tinker. Now it's not just speech that could result in the invasion of the rights of others, or reasonable forecast of substantial disruption of material interference. It's not just speech that could be regarded as lewd and indecent like Matt Fraser's speech to his peers. It's not just speech in school sponsored expressive activities, where the speech can be subjected to editorial control reasonably related to legitimate pedagogical ends, now too its speech that could be reasonably regarded as encouraging illegal drug use. That is also unprotected following Morris V. Frederick in the 2007 opinion. All right, so we'll pause our look at First Amendment K-12 case law right there, and we'll take a quick diversion from Morris into the line of cases that was developing concurrently in the lower courts and the courts of appeals dealing with, well, let's see it's 2007, what is the new social phenomena that is changing the way we communicate, keep in touch and joke with our friends? Well, that is online speech. Social media cases, email cases, website cases. I love these cases, they are a snapshot in time. I have to say, I don't like the way most of them were decided, but they are a snapshot in time, because they involve such now defunct websites as MySpace, or Friendster and the like. We'll begin with Doninger V. Niehoff, a second circuit case from 2008, just a year after Morris. This case has facts that seem straight out of a classic high school movie. You've got a student, Avery Doninger, who is frustrated because the school is telling her and her peers that the event, Jam Fest, a battle of the band's event that the students apparently loved, could not be held on the scheduled date in the new auditorium because the teacher who controlled the lighting and audio for the event wouldn't be available on that on that day. So the school administrators gave Avery and her fellow student council members a choice. They could either do the event in the cafeteria, or they could reschedule. And they didn't wanna reschedule. So they had a meeting with the administrators, or they wanted to set up a meeting with the administrators, and when they couldn't meet with the administrators immediately, they sent a mass email to parents, students and others that quote the central office had decided that the student council could not hold its annual Jam Fest battle of the bands in the auditorium, and they asked, the students asked the recipients of the email to quote, contact the central office, and ask that we be let to use our auditorium. They included the district office's phone number, and said people should call and email , call and email the office. They sent another email later including the superintendent's email address and their phone number. So they were being activists, if you will, and encouraging people to take action and express their displeasure with the potential rescheduling of Jam Fest. So the school got quite a few telephone calls and emails. The court, the second circuit describes it as an influx and as a result of this influx the superintendent decides to cancel the event on the 28th all together. And the, well the student, Doninger, Avery Doninger, runs into one of the administrators in the hall and they have a meeting, and they have a, a bit of a factual dispute about whether or not the event was canceled altogether or just rescheduled, but whatever the case, despite the different recollections, the one thing is for sure, Avery goes home that night and logs on her livejournal.com. Now that is a phrase you haven't heard in a long time, I imagine, but yep, she gets on her live journal. How to describe live journal, it's kinda like a early blogging service, a staple of the , perhaps you had a live journal, and she writes this on her live journal. This is publicly accessible, anybody can see it. Let's read the post so you can get a sense of the flavor of it. Jam Fest is canceled due to douche bags in central office. Here's an email that we sent out to a ton of people, and asked them to forward to everyone in their address book to help get support for Jam Fest, basically. Because we sent it out, Paula Schwartz is getting a ton of phone calls and emails and such. We have so much support, and we really appreciate it. However, she, being Superintendent Schwartz, got pissed off and decided to just cancel the whole thing altogether, and so basically we aren't gonna have it at all. But in the slightest chance we do it is going to be after the talent show on May 18th. And here is a letter we sent out to parents. And then she reproduces the email, and concludes her live blog post saying, and here is a letter my mom sent to Paula and CC'd Carissa to get an idea of what to write if you wanna write something, or call her to her off more, I'm down. So a call to action from student government member and student Avery Doninger to her peers about the apparent cancellation of Jam Fest. And the school, well, they don't like that. They don't like the comments underneath the blog entry either, including one that apparently referred to the superintendent as a quote, dirty whore. The phone calls and emails about Jam Fest continued to roll into the administrative office. Students are upset, and they're letting the administration know about it. And sooner or later Avery is punished. She wants to run, she's a junior, she's the secretary, she wants to run for senior student government, and she is barred from doing so because of her blog post, which the administration has now found out about. They say it doesn't demonstrate good citizenship. Again, they're upset about the emails and the phone calls. The students don't like Avery being barred from running. Avery gives an interview to the local news, and people are at school wearing team Avery shirts, and holding up signs that say support freedom of speech. And, yeah, like I said told you, it gets to be a classic high school movie scenario. And even though Avery wins the most votes for the senior student government election, the position is denied to her. And at that point she files suit, and it goes up to the second circuit. And the second circuit takes a look at what happens here, and even though the speech occurred off campus, even though it's not speech that that Avery wrote on, during school activities, the court allows the punishment, saying that the post was reasonably, it was reasonably foreseeable that the post would reach school property, that it would have an impact on the school. And so thus the disruption that it caused would be properly beyond the bounds of Tinker, and that the Tinker analysis applied even though the speech occurred outside of the high school. And I have a hard time with this, this ruling, because I think the student is essentially being punished here for successful advocacy, right? She's writing off campus, she's not causing the disruption herself. She's saying, hey folks, write the school. That is classic civic activity, right? She's being a good citizen. She's not saying go in and disrupt things. She's saying write in, petition your administrators for redress of grievances. The punishment for Avery might seem beyond the bounds of our concern, right? It might seem insubstantial, but for Avery was a big deal. And for the students who were her peers it was a big deal. And the lesson being taught here is that sometimes if you ask folks to stand up for what they believe in, right, Jam Fest, it might come with consequences from official government actors, like these school officials here. So when the high school cases, I think part of the concern is the lesson we're teaching students about their rights, Avery Doninger, pictured here with her attorneys, certainly learned a tough lesson. The blog post and the reaction it caused are enough to justify the punishment. And the second circuit was hardly an outlier here. The avalanche of social media or online speech cases that hit the courts of appeals around this time, for the most part, the circuits decided that Tinker was still the relevant framework, even though Tinker says you don't check your rights at the schoolhouse gate. In these cases, the courts of appeals essentially flipped Tinker, and said the school's authority doesn't begin at the schoolhouse gate either, that the school has a long arm of authority that can reach beyond the schoolhouse gate, into the student's home, where they might be using their own private internet equipment to post on websites that aren't controlled by the school. So you have the eighth circuit saying Tinker applies to off-campus student speech when it's reasonably foreseeable that the speech will reach the school community, and cause that substantial disruption, contemplated in Tinker. Likewise, the fourth circuit in Kowalski says that speech, off-campus speech can be analyzed under Tinker when the, quote, nexus of that speech to the school's, quote, pedagogical interest is quote, sufficiently strong to justify the action, disciplinary action taken by the school. The ninth circuits kind of melded those two approaches together, saying that there's a nexus test and also a reasonable foreseeability test. So jamming those together to say that that's how you reach student speech that's off campus. So the bottom line of the sum of these cases, from the circuit courts of appeal over the decade or so after Doninger and other cases to the ninth circuit's opinion in CRV Eugene School District was that when students speak online or off campus, they really weren't free from the long arm of school administrators, they did so at their own risk. And this next case, Bell V. Itawamba County School Board is also a good illustration of the way that the circuit courts were kind of wandering in the desert here, trying to figure out the right Juris potential approach to off campus online student speech. We have here a student, Taylor Bell, who wrapped under the name T Bizel. And he's a high school student at Itawamba Agricultural High School in Mississippi, and he came to learn of two high school coaches who students accused of sexually harassing female students. So using his YouTube account, he recorded off school grounds, a rap under his rap name T Bizel, and spells out the accusations against the coaches, kind of just in classic rap style. And I won't read it out, it's fairly long, but it's profane in spots, but, again, he's posting it on his YouTube, and is recording it off campus. And the coaches find out about the recording, and they're upset. And Bell is then punished. And the fifth circuit hears it, hears the case on bonk to kind of fashion a rule here, and kind of declines to fashion any rule whatsoever. They basically hold that because T Bizel, Taylor Bell, meant for his rap to be heard by the high school and the high school community that Tinker was in play, and that his punishment didn't violate the First Amendment. And the dissent, and, again, kind of showing my hand here, I'm sympathetic to the dissent. The dissent says wait a second, he's on his own time outside of school, and he's recording this rap, and we are allowing the school to reach beyond its campus grounds, reach beyond the extent of its authority, and punish students for what they do and what they say on their own time. And despite the fact that Bell's case attracted a good deal of media attention, and the support of well known rappers like Killer Mike and TI, and a bunch of other folks in an Amicus brief, the court did not avail itself. The high court, Supreme Court, did not avail itself of the opportunity to kind of settle the doctrinal confusion here about Tinker's applicability off campus, and let Bell's punishment stand. So that's where we are, the stage is set for Brandy Levy to visit the Cocoa Hut Saturday night to express her extreme displeasure with not making the cheerleading team. This is a picture of the Coco Hut in Mahanoy City, Pennsylvania. And this is where Brandy Levy went to vent on Snapchat. And you know Snapchat, or maybe you don't. Well I should explain Snapchat. It's kind of like if Twitter posts or Instagram posts disappeared after 24 hours. So it's ethereal by nature, right? You post things, they are up for a little while, and then they disappear, and your friends, you're quote, unquote friends in Brandy's case can see them. So Brandy was mad because she didn't make the varsity cheerleading team, she didn't get the position she wanted on the softball team. She wanted to be a right fielder on a private softball team, and even though a freshman had made the varsity cheerleading team for the Mahanoy area high school, she had not, and she was mad. So it's Saturday night, she goes to the Coco Hut with a friend, she gets on her Snapchat app, and she writes in a now famous phrase, as famous as BONG HiTS 4 Jesus, she writes "Fuck school, fuck softball, "fuck cheer, fuck everything." And that post of hers was snap shotted, and ricocheted around the internet. Well really ricocheted around the cheerleading community in the Mahanoy area high school world, and eventually resulted in BL, that's Brandy Levy, our student here, being suspended from the junior varsity cheerleading squad for the year. So she was kicked off the team for the year because of this Snapchat post, and the language she had used. Now Brandy filed a First Amendment lawsuit, and it goes up to the Supreme Court. But first of all, the district court finds in her favor, and so too does the third circuit. I wanna take a second to look at the third circuit's approach here even though it was later overruled by the court, not adopted by the Supreme court on review, but the third circuit, I thought, really spoke with admirable clarity here, saying that wait a second, Tinker is an in-school standard, it doesn't apply to off-campus speech. When the student is speaking in a way that has nothing to do with school programming, then Tinker doesn't apply, right? Tinker is just for on campus or student activity speech. And the third circuit said there's an important educational component of drawing this bright line between on campus speech, where Tinker applies, and off campus, where it doesn't. The court wrote to enjoy the free speech rights to which they're entitled students like BL must be able to determine when they're subject to school's authority and when they're not. The only reservation the third circuit allowed for is when students engage in off-campus student speech that threatens violence or harasses others. The third circuit reserved that question. But otherwise the Tinker rule is in applicable. And the third circuit drew that bright line after surveying the results from other circuits, and saying that they're unworkable and left students floundering in a real gray area, nebulous, ambiguous space where they couldn't quite tell when they're under school control and when they weren't, that there's value in drawing that bright line. The school appeals, and the court grants cert, and just last summer the court issues its opinion authored by Justice Breyer, in one of his last opinions in Mahanoy area school district V. BL. Now Brandy levy, there she is, she wins again, but the court declines to adopt the third circuit's rule about this bright line concept, that when you're on campus or in the school activity Tinker applies, and when you're not it doesn't. Instead the court, the majority of the court, identifies what they call three features of off-campus speech that diminish the strength of the unique educational characteristics that might call for special First Amendment leeway. In other words, these are kind of three guideposts, three factors that lower courts should consider in determining whether off campus speech may be regulated in the same way as on campus speech. First of all, the court noted that the school in relation to off campus speech will rarely stand in loco parentis. Now that's Latin for in place of the parents. In other words, when students are on campus, K-12 students are on campus, the school has some supervisory authority over them, they're acting in place of the parents. But when a student is home or off campus or at the Coco Hut, that same authority doesn't apply. And if anybody should have punished Brandy Levy, as some Amicus priest to the court argued, it should have been her parents. This is simply not the school's job to police her speech at all hours of the day. And actually that brings us to the second feature identified by Justice Briar, and his fellow justices in the majority, that if you allow students to be subject to school authority all the time, well that means that they will be covered effectively 24 hours a day, no matter where they are. And that that would be particularly hard to justify those kinds of sweeping omnipresent, panopticon like regulations of student speech when the students are voicing political opinions or religious speech. And, finally, the court noted that the school itself has a serious interest in protecting a student's unpopular speech. Again, there's a pedagogical component here that America's public schools are the nurseries of democracy, and schools have, and I'm quoting here, a strong interest in ensuring that future generations understand the workings in practice of the well known aphorism I disapprove of what you say, but I will defend to the death your right to say it. So there's the court, if not quite adopting the third circuit's bright line, at least saying that off-campus speech is different, and here are some general guidelines for lower courts to apply when they're considering what to do with schools punishing the students for off-campus speech. We got a first look at what that might mean in practice, how this might play out in a recent 10 circuit decision, C1G V. Siegfried. And here we have a student who was off campus, it's a Friday night, he's at a thrift store, and he posts a picture on his Snapchat of him and his friends wearing wigs and hats, including one that looked like an old timey World War II, military hat. And he posts on the picture with the caption "Me and the boys about to exterminate the Jews." Ha ha, right? Hilarious joke. Well, not really. He realized pretty soon after that this lousy attempt at comedy did not land, and he writes "I'm sorry for that picture, "it was meant to be a joke." Somebody calls the cops, they visit CG's house, they determine that this is just a dumb kid, making a dumb joke on his Snapchat, no real threat. But somebody, some other students' parent, parents email the school and CG is suspended for five days. Ultimately he's expelled from his public school for this post. And the 10th circuit says wait a second, he was outside of school, he didn't identify the school in his post, and his speech just went to his private friends, it wasn't directed to the school. These characteristics of the speech, while, quote, risking transmission of the school itself nonetheless diminished the school's interest in punishing this utterance, applying BL V. Mahanoy Hanoi area school district. So even though it was offensive, even though it was controversial, it was not unprotected under the First Amendment. So that's an early sign of how courts might approach online speech post Mahanoy. Stay tuned, there will be much more law in this area, I guarantee it. All right, so let's move quickly to other questions confronting the K-12 context. We hear about it every day lately, what is being taught in the schools, and what books are on the shelves of K-12 libraries? Well, let's go way back to 1923 for Meyer V. Nebraska. Here we have a ban on the teaching in public schools and parochial private schools of any language other than English, right? You can't teach anything but English. And this is a reaction to the World War One era bans on speaking German. So we have a teacher in Nebraska who was convicted under this law, that's Nebraska state law, for teaching in German to a 10 year old. And the court considers this, and says wait a second, wait a second, this is too far. The Constitution extends to the rights of those who speak other languages, as well as those who speak English. The individual has certain fundamental rights which must be protected. So I bring up Meyer V. Nebraska in the sense of curricula, there are some things that the state legislature cannot do even those states have generally wide berth and local authorities have wide berth to control what's taught in public K-12 schools. There are outer bounds, and saying that you cannot teach in certain languages, even at a private school, is way too far. So the next kind of outer bounds was explored by the court in Epperson V. Arkansas, a 1968 case. There's Epperson there, and she was put in a rough spot because Arkansas had a, what was called the monkey law, the law that prohibited public school teachers to teach, quote, the theory or doctrine that mankind ascended or descended from a lower order of animals, or to use any textbook that said as much. And so the school district ordered new textbooks, and the new textbooks included this theory. So Epperson was in a rough spot. She either could teach the text that her school district had bought for her, which would mean violating the law, or she could refuse to teach what the school district asked her to do. She filed suit, and the court clarified here. He says look, by and large public education in our nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems in which do not directly and sharply implicate basic constitutional values. But, but here we go, because the state law was designed to further a particular religious view, and vis-a-vis evolution. That was the problem here, and the law was struck down. There is, wrote the court, and can be no doubt that the First Amendment does not permit the state to require that teaching and learning must be tailored to the principles of prohibitions of any religious sect or dogma. In other words, local and state authorities have extensive control of the curriculum, but they cannot use that control to tailor their educational system to the principles or prohibitions of any religious sector dogma. And that's what the court thought this monkey law, this anti-evolution law, was doing, so it was struck down. So that's curriculum. Basically the takeaway here is that there's broad leeway for state and local authorities to control curriculum, but it's not unlimited. Libraries, what about libraries? Every day you turn on the news there's another story about school libraries and challenges to books on those shelves, and the relevant Supreme court case here is of limited precedential value because it's a, kind of a very fractured court, resulting in, I think, several different opinions, but the case is Board of Education Island Trees Union Free School District Number 26 V. Pico, Steven Pico. He's a student. The facts here again are kind of ripped from the headlines today, even though this is 1982, and I'm speaking to you in 2022, so 40 years ago, same kind of problems. We have a Long Island, New York School Board went to a conservative conference, conservative parents conference, came back with a list of quote, unquote objectionable books, and asked immediately if any of those books were on the library shelves, and as soon as they found out that some of the books were, they ordered that the books be removed from the shelve. You got Kurt Vonnegut "Slaughterhouse Five," Malamud's "The Fixer," and an edition of short stories edited by the great Langston Hughes, and those were available on the high school and junior library shelves, and they were all pulled. So that removal generated quite a bit of media attention, and then the board put out a press release saying "Look, we were entitled to remove these books "because they are anti-American, anti-Christian, "anti-Semitic and just plain filthy." And the board said it had a quote, moral obligation, to protect the children in our schools from this moral danger, as surely as from physical and medical dangers. Pico, one of the students, challenges and makes the argument that he has a right to access this information, that this pulling of the books violated the First Amendment. And, again, the court splintered here, but the plurality by justice Brennan on two separate concurrences won the day, and the court agreed that while local school boards must be permitted to exercise a great deal of control over curriculum, and that they had a legitimate, quote, unquote legitimate substantial community interest in promoting respect for authority and traditional values, be they social, moral, political, that doesn't mean that author is unlimited, right? Especially when you move outside of the classroom, where those kind of curricular concerns aren't as applicable. The Brennan opinion held that in the school library the regime of voluntary inquiry holds sway, and that's where the student First Amendment rights were implicated. Even though school boards could determine, they possessed significant discretion to determine the content of those school libraries, Justice Brennan wrote that that discretion may not be exercised in a narrowly partisan or political manner, which is exactly what happened here. But note this, if the school had a policy, a facially unbiased established regular policy for the review of controversial books, that would've been a very different case. What happened here was kind of ad hoc vigilante censorship, right? The school board had this list of books, they didn't have a policy, they just went in, got this list of books from this conservative organization, started pulling. So that was narrowly partisan, and political such that it violated the First Amendment. In his concurrence, Justice Blackman said that if the purpose of pulling the books is to restrict access to the political ideas or social perspectives discussed in them, that action is a problem when it's motivated simply by the official disapproval of the ideas involved. And that's what we had at issue here. So think about that. Even though Pico has been discounted to a significant extent by lower courts in the 40 year since its issuance, that is still the, the relevant theory here. It's not a, a solid precedent, but I think it's a good and useful load star, a good and useful starting point as you consider what we're seeing as of late in this country. Who knows, perhaps we'll get more clarity on this question soon. So, finally, in sum, let's take a quick look at the rights you have, now that we've covered some of the K-12 landscape, let's taker a quick look at the rights you have as a college student at a public college. I've covered this in some of my other CLEs for Quimbee, I recommend you to them, but in the meantime we'll do a quick summation here, just so you get a sense of the significant difference. The way I like to describe it when I speak to students across the country, is that when you're in high school your rights are limited, right? Given all the cases we've just discussed, you don't really have full First Amendment rights. When you graduate from high school, you've gotten your driver's license for democracy. Corny phrase, I know, but I think it captures the difference in the rights you're afforded. High school, you're on campus, if your speech is lewd and indecent, well, you can be punished under Fraser. If you're talking about things that could be reasonably related to illegal drug use, or reasonably regarded as promoting illegal drug use, well, per Morris V. Frederick, you can be punished, right? If you're writing for a school paper, or in some, you're participating in some school activity, and the school has quote, legitimate pedagogical reasons to exercise editorial control of that speech you're out of luck, right? Your rights are pretty limited. And even with BL V. Mahanoy area school district, we're still in kind of a wait and see period for what your rights will look like when you are at home or at the Coco Hut and logging on to TikTok or Snapchat, or whatever TikTok and Snapchat are in five years, and posting we're still gonna figure all that out. So your rights are limited, and maybe uncertain at best. So it's, it's kind of a, a tough draw, but when you've got your driver's license for democracy, when you have graduated from high school and you are attending a public college or university, your rights attach in full, you have full First Amendment rights. And we know that because of holdings like Healy V. James, 1972. And I won't go through all the facts of Healy V. James, you can watch the other CLE for those, but the bottom line here is that the court makes clear that the press, its precedents leave no room for the view that because of the acknowledged need for order First Amendment protection should apply with less force on college campuses than in the community at large. Quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more vital than the community of American schools. What does that mean? For a student that means you have full First Amendment rights. In McCauley V. the University of the Virgin Islands, the third circuit did a really nice job, full of praise for the third circuit today. The third circuit did a really nice job of explaining the differences between the limited rights afforded to students, limited speech rights afforded students in the K-12 context, and the much more extensive rights they have, in fact the full and complete rights they have in the college context. And there are five reasons that the third circuit identified for that difference. First of all, you just have different missions when you're talking about K-12 schools on one hand, and public university on the other. The K-12 schools, like the court said in Bethel, they're designed to inculcate the habits and values of civility, right? Different story at public universities, which are more engaged in the search for truth, to use the famous phrase from the University of Wisconsin system, the sifting and winnowing of different ideas to achieve a better understanding of the world around us, and to produce knowledge. That's a different deal, right? High school and K-12 context, you're just kind of learning how to be a citizen. In college, you're learning about the world around you in a much more particular and driven way. So that's reason number one. Second of all, third circuit said that in the K-12 context, administrators and teachers, they're acting in loco parentis, right? They are literally in place of the parents, not so at public universities. Third reason, because they're acting in place of the parents, K-12 authorities need to address unique situations, right? They were talking about lots of kids, or minors. That's different than what you see in the college context, when most students have reached their legal majority, right? Setting aside all the Doogie Howser folks, most students on college campuses are adults. They can fight and die for our country, you give 'em full First Amendment rights. They're old enough to go to school and take out tens of thousands of dollars in student loans, they get full First Amendment rights. There's a related question of emotional maturity. I've got a five year old and a seven year old. I'm gonna give the teachers at my kids public school some leeway when it comes to taking into account their emotional maturity as the third circuit put it. Again, that concern is not present in the college context, at least probably shouldn't be. University students, and the last reason identified by the third circuit, university students they're on campus, and most of 'em at residential colleges, not all community colleges, but at residential colleges they're living on campus, so if you have speech restrictive rules, most students are subject to those rules all the time, and that's a problem. The court, Supreme Court, even identified that as a problem for the extensive regulation of off campus student speech in the K-12 context. All those reasons added up make a big difference in the rights afforded K-12, again, limited, and college full. That's the big difference. First Amendment for college students applies in full, First Amendment for high school, K-12 students, not quite. Last case to illustrate that difference, Papish V. Board of Curators of the University of Missouri. This involves an underground student newspaper called The Free Press. Barbara Papish, the plaintiff here, was expelled for handing out copies of this paper because it had contained obscenities. It was reporting in it on a student local activist group by the name of Up Against the Wall Motherfucker. It's an unforgettable name for your student group. And the free press here was reporting on one of its members who had been arrested for burning a draft card. And he was acquitted of that charge, and the free press ran an article with the headline Motherfucker Acquitted. And they copy of the paper also included a pretty intense political cartoon which depicted police officers sexually assaulting Lady Liberty and the goddess of justice, the lady with the scales. And pretty intense stuff. If you hand that out in a high school, well, Bethel V. Fraser, right? Lewd, offensive and indecent, you're gonna be subject up to punishment. And I imagine this is gonna be quite a commotion. And that's gonna hit you with that exception, the other exception to Tinker as well, reasonable, reasonable forecast of disruption, substantial disruption, material interference. In the college context, the Supreme Court said the mere dissemination of ideas, no matter how offensive to good taste on a state university campus may not be shut off in the name alone of conventions of decency. So that's a pretty clear illustration. If you think about Matt Fraser's speech with all that sexual innuendo and double entendre, and then the language in the free press being distributed by Barbara Papish, difference between K-12 and public institutions of higher education on display there. Okay, so in an hour, that's it in a nutshell. Bottom line, K-12 limited rights, public college and universities full First Amendment rights. Hope this has been useful. If you have any questions or comments, check out our website, thefire.org. Again, my name is will Creely, I'm the legal director over at Fire, and it's been my pleasure. Thanks so much for spending this hour with me. Love to hear from you and hope to see you at another CLE real soon. Thanks again, folks, have a great day.
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