This article was written by Robert Schwartz, Andrew Schwartz, and Dishon Dawson
The purpose of this article is to discuss some of the more recent cases dealing with student speech issues. Rather than just describe the facts of the cases cited in this article, and what the courts said in their decisions, we would like to approach this issue by way of different scenarios, taking a page out of “Legal One.”
You are the middle school principal and you see several male students wearing t-shirts advertising a popular male enhancement drug. The slogan displayed is a highly suggestive, sexually lewd, contains double entendre that you believe could possibly cause some disruption in the school. In fact there is no disruption. You are the only staff member to notice what these students are wearing. Are you permitted to intervene and demand that the students change, or otherwise cover up, their t-shirts?
Now suppose that the t-shirts worn by the male students has advertising for early testicular screening; advertising that has a graphic depiction of a magnifying glass over what appears to be testicles, with the message: “don’t forget to check your sack.” The students wore the t-shirts all day without incident. These same students also sat at a table in the building’s main atrium during their free periods and passed out information on testicular cancer. Although the students caused no major problems or disruptions, you find the t-shirts to be unnecessarily provocative. Can you require that the students turn their t-shirts inside out, or otherwise cover up the shirt’s message?
What if the students wearing the cancer screening t-shirts described above start chanting at their informational table “check your sack” loudly, with their chant quickly becoming an atrium-wide chant causing significant distractions in the surrounding classrooms.. What can or should the principal do now?
Essentially, the courts analyze student speech cases in two respects; first in the context of “political” speech and whether such speech is disruptive, and second in the context of speech found to be lewd and/or offensive. Political speech is accorded constitutional protection, whereas speech determined to be lewd is not. For political speech to be constrained or regulated a school district must show “substantial” disruption of the school environment justifying the regulation or the constraints made. No such justification is necessary for speech found to be lewd, vulgar and/or offensive.
Taking political speech first, because it is accorded constitutional protection an administrator’s ability to regulate it is dependent on whether it is disruptive of the school environment. The disruption has to be real and discernable. It can’t simply be anticipated because the speech offends the sensibilities of staff or administration. That was made clear by the Supreme Court in 1969 in the landmark matter of Tinker v. Des Moines where the court said that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
The Tinker matter dealt with silent or symbolic speech. A number of students, all related to each other, in different schools, wore black armbands to voice their protest of the Vietnam War. The administration took issue with what the students were doing and told them they needed to remove the armbands. There had been no disruption, but the fear was that the silent protest would upset other students whose family members were in the armed services. In ruling on the matter the Supreme Court famously said that students do not shed their constitutional rights of free speech and expression at the “school house gate.” Thus, the Court ruled in favor of the students, concluding that the students’ actions—silent, passive, and symbolic—caused no disruption within the schools, and therefore their First Amendment rights of free expression warranted the full protection of the Constitution. Prohibiting them from wearing the black armbands, a form of symbolic speech, was a violation of their rights of free speech.
Some years later in Bethel School District v. Fraser the Court further refined the analysis found in Tinker. In the Bethel case decided in 1986 the school district disciplined a student, Matthew Fraser, for a speech he gave to an assembly of students, teachers and administrators in support of a fellow student who was running for student office. The speech was filled with references of sexual metaphors, though no blatant sexual words were used. The school’s administration found the speech to be to be lewd and offensive. The Court noted that the speech had engendered catcalls and laughter and generally raucous behavior among the students in the audience. The school’s administration disciplined Fraser by suspending him for three days and by preventing him from being one of the speakers in that year’s commencement exercises. The Court upheld the school district’s decision to discipline the student citing society’s’ interest in teaching students the “boundaries of socially proper behavior.” It said that it is a “highly appropriate function of public school education to prohibit the use of “vulgar and offensive terms in public discourse.”
Note was also made of the fact that unlike in Tinker the discipline imposed here was not related to political speech or a political viewpoint. It was imposed because the words used were inappropriate in a school setting. Since the Fraser decision the courts have said that lewd or vulgar speech is not constitutionally protected. So, regardless of the reaction to the speech, the school was within its rights to discipline Fraser for what was determined to be lewd, vulgar and offensive statements.
Determining what is lewd, vulgar and offensive is the tricky part. But certainly statements that are sexual in nature are generally not appropriate in a school setting. Statements which are hateful or designed to be offensive to particular groups or individuals generally will not merit constitutional protection – at least not in a school setting.
The degree of expansiveness to be given to student speech versus the regulatory authority of schools has been repeatedly tested. By way of example in the matter of Borof v. Van Worth City Board of Ed. decided in 2000 the court in the 6th Circuit held that the school was within it’s authority to prohibit students from wearing Marilyn Manson t-shirts which contained certain symbols and words that promoted values “patently contrary to the schools educational mission.” In a matter entitled Harper v. Poway Unified School District a 9th Circuit Court said that the school was within its authority to restrict a student from displaying a Swastika or a Confederate flag on a scheduled day of racial tolerance. In another matter, also in the 9th Circuit, Chandler v. McMinville School District, the court upheld the rights of students to wear buttons which contained the term “scab” to protest the school district’s hiring of teachers to substitute for striking teachers.
In New Jersey, in a matter entitled DePinto v. Bayonne Board of Ed. in 2007, students wore buttons protesting a required school uniform policy. The writing on the buttons overlaid a historical photograph that appeared to portray Hitler youth. The picture depicted dozens of young boys dressed in the same uniforms and all facing the same direction. But there were no visible Swastikas or any other definitive indication that the boys were members of the Hitler youth. However, no one denied that the picture portrayed was an assemblage of the Hitler youth. Believing that the button and what it portrayed would be offensive to many Bayonne residents, the Bayonne Board sent letters to each of the student’s parents stating that the background images on the buttons were objectionable and threatened the students with suspension in the event that they wore the buttons again. Though the court did not rule on the merits of the case, it granted a preliminary injunction against Bayonne prohibiting the district from carrying out any disciplinary measures against the students.
Another example is a case decided earlier this year by the 3rd Circuit in a matter entitled Hawke v. Easton Regional Area Schools. The Easton Regional School District had suspended two female middle school students for refusing to remove cancer awareness bracelets bearing the message “Save the Tata’s, I love Boobies.” The students were asked to remove the bracelets on the middle school’s “Breast Cancer Awareness Day.” The students were suspended. When the students’ appeal reached the Federal District Court it found against the school district concluding (1) the bracelets worn by the students were not lewd in any way and (2) wearing the bracelets caused no disruption, much less the “substantial disruption” that a school district typically must show for this type of expression.
These cases offer a glimpse of the complexity of the analysis applied in student speech cases. So, what about the scenarios set out in the beginning of this article? What actions, if any should or could be taken? Here are our thoughts.
In the first scenario, recall that the students wore t-shirts containing a sexually explicit and lewd message advertising a male enhancement drug. Here, although the t-shirts had not yet caused any disruption, the principal would probably be permitted to require the students to take the t-shirts off, or to turn them inside out, or otherwise cover up the sexually lewd message because the
t-shirts displayed no political or social message. Remember, under Bethel, and the subsequent interpretations of that case, lewd and offensive speech is not given First Amendment protection. Therefore, the fact that the speech had not yet caused any disruption would be irrelevant in determining whether the speech can be suppressed.
Analysis of Scenario 2 and 3:
With respect to both these scenarios, the major difference is that in scenario 2 the students wore their t-shirts promoting early screening for testicular cancer all day without incident, whereas in scenario 3 the same students wearing the same t-shirts drew attention by chanting “check your sack” which prompted other students in the hallway to join in the chant. With regard to scenario 2, there was nothing in the language printed “-check your sack-” that on its face was lewd or offensive, and there does not appear to have been any intent to have the words viewed as such. As with the bracelets in the Hawke matter the t-shirts were used to promote early cancer screening, something which most people would see as a positive social message. Accordingly, as to scenario 2 the issue boils down to whether wearing the t-shirts caused any disruption to the orderly operation of the school. It didn’t as no one except for the principal took notice Therefore, if the principal ordered the students to cover up the t-shirt’s message, or disciplined the students because of the message, the likelihood is that is that this would be found to violate the student’s’ freedom of expression. The third scenario, however, expressly caused significant distractions to the classrooms surrounding the atrium where the students were leading the “check your sack” chant. As a result, the likelihood is that if the students were to receive some form of discipline a court would uphold the school administrators’ action because of the need to prevent the substantial disruption of the school environment.
The analysis of issues of student speech addressed in this article is by no means exhaustive. It only offers a glimpse of the ever changing landscape of student speech in schools. However, hopefully this article offers some guidance on what to do, or not do in situations with facts similar to the three scenarios described. But, this article is not intended to serve as legal advice. For that you need to rely on the advice given by your school solicitor. But, as always, if you have a specific legal question, please do not hesitate to contact the attorneys at the New Jersey Principals and Supervisors Association regarding your specific inquiry.