Exploring the Free Speech Rights of Students and Teachers
Sunday, April 9, 1 p.m. (Central Time). Guest expert: Tom Hutton, attorney, NSBA, Alexandria, Va. What are the speech rights of students and teachers in school? Where is the line to be drawn in their expression of their personal beliefs and opinions? Recent news events such as the student walkout to protest immigration legislation, students being disciplined for off-campus speech, and a Colorado teacher lecture comparing Bush to Hitler have put this issue front and center in your schools. Our legal expert will discuss recent court rulings and take your questions about how far students and teachers can go in expressing themselves and how far schools can go in restricting that expression.
A parent from Price, Utah asks:
Is there not a distinction between an incidental and minor political comment that is an "aside" but off subject matter of the class that is only a minor use of classroom time as opposed to a teacher making political comments that are the major topic in the classroom and that are off the subject matter that is to be taught in the class? I do not agree with firing a teacher or limiting their speech for the minor deviations off subject but on the major deviations, they have no free speech protection.
Tom Hutton writes:
As a practical matter, teachers are human and have political and religious opinions like everybody else, and those opinions inevitably will come out sometimes. That may be inappropriate, but typically where there are legal concerns are where there's a real pattern of the teacher injecting his or her own opinions. It's probably more of a problem where it isn't even germane to the curriculum, but in general teachers shouldn't inject their political and religious viewpoints into class. Besides, many would say it's better teaching practice to help lead students through their own discussions.
An individual from Denver, CO asks:
What did you think about the situation with the Denver teacher?
Tom Hutton writes:
I only know what I read in press accounts, but it appears to me that the district handled things well. They took the complaint seriously and looked into it and in the end set some guidelines to safeguard against problems. There seems to be some question about whether the teacher really was trying to be deliberately provocative and whether he does the same thing from other assumed viewpoints. But the bottom line is teachers should be careful about this kind of thing, and even if they are it's possible one example can be taken out of context and shared with the world, as happened here when the kid secretly taped the class.
A parent from Chicago asks:
Do students have the right to wear the confederate flag to school?
Tom Hutton writes:
The answer to this one is the lawyer's favorite: It depends. Students do not shed their constitutional rights and the schoolhouse door, but those rights have limits. Schools have been sued for restricting confederate flag symbols, and some have won and some have lost. Generally speaking, banning the confederate flag because you find it an offensive, racist symbol is not enough to pass constitutional muster. But where, for example, the district has had a history of well-founded fear of racial tensions or incidents, the school is on firmer ground, and courts generally give school boards the benefit of the doubt. Schools should be aware that, like with many culture war issues, there are very active groups ready to pounce and sue on this issue. On the other hand, a member of NSBA Council of School Attorneys with a lot of experience with this issue tells me the group he sometimes deals with is very reasonable when he explains that racial tensions do exist in a school.
A parent from Price, Utah asks:
The confederate flag question caught my attention. Kids in Lakewood, Colorado, as I recall, were temporarily banned from displaying the American flag until the State's attorney general said they had the right to do so. They were apparently expressing their viewpoints against illegal immigration and the use of the Mexican flag by student protestors.
Tom Hutton writes:
This is a good one. The issue here is what's at the heart of these flag questions. For speech to be protected, there has to be a recognizable political message -- remember the black armbands in the Tinker case? So what is the message and the effect? For confederate flags, if it's seen just a symbol of southern pride in a school where there haven't been problems, a school is going face hard questions from a judge for banning it. But if it's seen more in its 20th century context where it was revived as by opponents to integration, and in a school where there are tensions, that's another matter. If the American flag in your scenario was being used in a way that was exacerbating racial tensions and incidents (and for that matter, the Mexican flag was too), a school would not be acting unpatriotically or illegally to say wave or wear your flags at home, but not in school.
A school district administrator from Georgia asks:
Can schools regulate off-campus student speech, such as blogs or other personal websites?
Tom Hutton writes:
This question has been popping up more and more with the use of Internet technology. The short answer is schools aren't free to appoint themselves arbiters of the Internet or off-campus speech generally, where use of the Internet of off-campus conduct has a clear impact on the school, school officials may be justified in acting. This is especially true where student safety is an issue. In a post-Columbine era, courts are more reluctant to second-guess school officials on matters of safety. Recall that now we know a lot more about one of the warning signs students who committed violence had left.
An individual from Los Angeles, CA asks:
what can a parent do if his/her child got suspended for demonstrating during the recent immigration demonstrations.
Tom Hutton writes:
In most cases, the answer is no different from what the parent's recourse would be under applicable state law and school board policy in any other circumstance. My understanding of the kinds of protests we've been seeing is that students are walking out of class. The Free Speech Clause does not trump truancy law or school board attendance policy, and schools have the right -- in fact, the obligation -- to enforce attendance rules. If a kid gets hurt off campus because the school isn't enforcing the rules, someone might sue the school board. You have to enforce the rules even-handedly, of course, but a district like LA that's warning parents about truancy and loitering laws is not taking sides in the immigration debate.
An individual from New York asks:
Are student newspapers considered school-sponsored speech? And can the school administrators restrict their expression and/or content?
Tom Hutton writes:
The short answer is that where district personnel maintain editorial oversight of the paper, it is school-sponsored speech and officials can exercise some control over content under some circumstances. This comes out of the Supreme Court's ruling in the Hazelwood case. On the other hand some schools give students a freer hand editorially on the theory that we are, after all, teaching students adult responsibilities. And even where the school maintains more control, it can still get into trouble for censoring content just because it's uncomfortable with the topic.
An individual from Warrenton, VA asks:
How can parents learn about the rights of our children? Should school administrators and school attorneys provide guidance? We don't have a school attorney so how can I find out? How are our children informed? What does your organization provide to school districts?
Tom Hutton writes:
There are lots of free source of information out there. as a starting point, let me refer you to NSBA's School Law Issues website pages. Go to
www.nsba.org/schoollaw. From there, click on School Law Issues. You'll see an alphabetical, topical list. You'll find online resources, news summaries, and summaries of court decisions under each topic. Free speech issues are included under Curriculum, Employment, Student Rights & Discipline, and Religion.
Tom Hutton writes:
P.S. Come to think of it, there's some stuff under Technology, too, what with all these blog, chatroom, and e-mail questions.
NSBA writes:
That wraps up today's discussion. Thank you for participating. Those who may be interested in keeping up with the latest on these and other school law issues are invited to sign up for NSBA's FREE weekly e-newsletter, Legal Clips. You can view a sample issue and subscribe in seconds at
www.nsba.org/legalclips
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