Recent events suggest that peaceful political speech advocating racial justice, human rights, and equality – speech fostering an inclusive and safe educational environment — is under attack in our public schools. There apparently exists an orchestrated effort by a segment of the political community to restrict such speech by crying that, if such expression is allowed, then they must be allowed to use the halls and classrooms of our schools to promote inequality and intolerance.
School officials have repeatedly bowed to the pressure. One administrator at Millard North reportedly compared display of a diversity flag to display of a Satanism club. Administrators in Grand Island made national news earlier this year when the district shut down the student newspaper after it published an edition highlighting LGBTQ issues. Another Nebraska school forced students to take down their art class projects advocating racial justice.
Undeniably, First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. The Supreme Court so held in Tinker v. Des Moines Independent Community School District. (fn1) In that case, students were punished for wearing armbands opposing the Vietnam War. The Supreme Court characterized their efforts as banning and seeking to punish the students “for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.” (fn2) The Court noted “there is here no evidence whatever of petitioners” interference, actual or nascent, with the schools” work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.” (fn3)
More recently, in Mahanoy Area School District v. B.L., the Supreme Court suggested greater protection of expression in school, noting:
America’s public schools are the nurseries of democracy. Our representative
democracy only works if we protect the marketplace of ideas. This free exchange
facilitates an informed public opinion, which, when transmitted to lawmakers,
helps produce laws that reflect the People’s will. That protection must include the
protection of unpopular ideas, for popular ideas have less need for protection. (fn4)
But the law seldom allows unrestrained liberty. We are not allowed to shout “Fire!” in a crowded theatre or use speech to incite others to violence, as examples. Accordingly, the Supreme Court held in Hazelwood School Dist. v. Kuhlmeier (fn5) that courts must apply the First Amendment “in light of the special characteristics of the school environment.” In other words, they may avoid endorsing political parties, taking sides on controversial issues, or approving poor grammar or writing in a school publication, as examples.
In Hazelwood, school administrators disallowed student journalists to publish two stories in the student newspaper, one concerned school student’s experiences with pregnancy. Another discussed the impact of divorce on students at the school. The Supreme Court ruled against the students, holding, “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.” (fn6).
In doing so, the Court explained that some activities “may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.” In such a case, educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school. Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself” not only from speech that would “;substantially interfere with [its] work . . . or impinge upon the rights of other students;” but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.
So is it true that if a school allows display of diversity flags, or support for the Black Lives Matter movement, it must allow all speech opposing those views? Must we suppress speech calling for tolerance and respect out of concern someone will express disagreement? Of course, the answer depends on what the opponents of diversity and racial equality wish to say, their means of expressing their views, and whether the forum they wish to use would suggest endorsement of their opinions by the school.
Schools have a choice. They can choose to emphasize the the importance of equality and a safe learning environment, remind parents, students and teachers of its obligation to protect students in targeted groups from harassment violating the Civil Rights Act,, and allow peaceful, non-intrusive expression, as in Tinker. Or, school officials can choose to suppress speech on these matters, threaten to allow opposing speech, and shut down the marketplace of ideas. Though the First Amendment and the Civil Rights Act support the first choice, school administrators too often favor the second.
First, such expression by students appears different than the harmless, passive expression protected in Tinker. Do the schools seriously suggest display of a diversity flag will disrupt the learning environment?
Second, passive speech promoting an inclusive, creative learning environment should not be shut down based either upon vague concerns about allowing opposing speech or upon mild discomfort the speech may cause. Indeed, the Supreme Court has consistently rejected arguments that would allow this type of “heckler’s veto” to prohibit protected speech, even in the face of Establishment Clause concerns. The latest example is the Court’s decision, in Kennedy v. Bremerton School District, (fn7) protecting a football coach’s right to kneel for a brief prayer after a football game. In that case, the Court noted that it has “made plain, too, that the Establishment Clause does not include anything like a ‘modified heckler’s veto,’ in which . . . religious activity can be proscribed” based on “‘perceptions’” or “‘discomfort.’” (fn8)
Third, the schools’ implicit threat of allowing hateful or violent speech in opposition appears misplaced. The law has long allowed regulation of certain forms of speech, including obscenity and speech inciting violence. In Virginia v. Black, 538 U.S. 343 (2003), for example, the Supreme Court allowed the prohibition of cross-burning with the intent to intimidate or threaten others. If school officials are concerned other students may wish to display symbols of the Ku Klux Klan or swastikas in opposition to a diversity flag, they could reasonably ban such expression for a host of reasons not applicable to display of a diversity flag. In light of the long history of violence associated with these symbols, the school could reasonably decide to protect the learning environment from the intimidation such symbols may cause. For the same reasons, the school could restrict such speech to protect against the school being connected to such messages. Additionally, the schools could restrict such speech in an effort to comply with Title VI of the Civil Rights Act, which requires schools to protect students from experiencing “severe or pervasive” harassment that interferes with or limits the ability of a student to participate in or benefit from the educational system.
In the end, the First Amendment empowers school administrator to protect speech and expression supporting a peaceful, inclusive, learning environment.
These are complex issues. Sipple Law is willing to help.
1 393 U.S. 503 (1969).
2 393 U.S. at 508.
3 Id.
4 141 S. Ct. 2038 (2021).
5 484 U. S. 260, 266 (1988).
6 484 U.S. at 273.
7 142 S. Ct. 2407 (2022).
8 Id., at 2407 (citing Good News Club v. Milford Central School, 533 U. S. 98, 119 (2001).
