Class Schedule Announcement

 We will use the 4th of our 10 pre-made-up classes to cancel class on Tuesday November 4. I have some faculty matters I have to balance on November 4.

First Amendment Fall 2025: Week Ten Assignments (October 27 & 28)

Finish this:

--Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District; Cohen v California

--  Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592

 

No class Wednesday 

Kneeling During National Anthem at Homecoming Game

 Suppose at a particular high school in California a group of conservative Christian football players and cheerleaders announce that they will take a knee at Homecoming Game during the pre-game National Anthem to protest the pro-abortion policies of the current Governor 

They are warned by school officials not to do so, and when they ignore the warnings and take a knee at the Homecoming Game they are suspended for 3 days and expelled from the football team and the cheer squad.

Apply the first amendment as developed in Tinker, Fraser, Hazlewood, and Morse.

Would it matter that the school has permitted players and cheerleaders to take a knee at games in support of Black Lives Matter?

Tinker and the Schoolhouse Gate (p. 1521)

Tinker concerned content based discrimination of political speech (students were not allowed to wear black armbands to protest the war).  Or was this “viewpoint” discrimination (would pro-war students have been allowed to wear yellow ribbons to express their support of the war)?  See p. 1521 (policy adopted in anticipation of antiwar armband expression).

Court holds (p. 1521-1522) that "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" and continued:

A student’s rights therefore, do not embrace merely the classroom hours.   

When he is in the cafeteria, or on the playing field, or on the campus during 

the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without materially and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others.

 So, under Tinker, the personal speech of public school students (which includes, of course, their religious expression) is protected unless it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." (p. 1522) 

Moreover, school officials may not merely assert fear of disruption. In order to justify censorship as in Tinker, the school "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Id.

Now for some questions:

 Prof. Linder poses several good questions(link) for you to ponder:

--Do the speech rights of students increase as they get older? Do high school students have the right to speak in ways that elementary school students do not? Do university and graduate school students have the right to speak in ways that might be punished if they were students in a high school?
 
--Would Tinker have come out differently if school administrators could have demonstrated that the armband caused loud debates to break out in class? Fights to break out in the hall?

--In Tinker, the Court noted that the school banned armbands, but allowed other sorts of expression such as "Vote for Nixon" or "Vote for Humphrey" buttons. Would the school have had a stronger argument if it banned ALL forms of symbolic expression, campaign buttons, and clothing with messages? Would the school have prevailed in that case?

--Does a student in a predominately Jewish school have the right to wear a swastika to class to demonstrate his support for Nazi ideology? Does the First Amendment protect symbolic student speech only so long as it is not TOO controversial?

 

Suppose a student in a public middle school, a school which celebrates gender identity and allows students to wear tee shirts supporting trans identity, decides to wear a tee shirt that states "There are only 2 Genders." The school banned the tee shirt stating that the shirt might be viewed as demeaning to transgender students and might be disruptive. Apply Tinker.

Suppose instead of a tee shirt, the student was disciplined for saying "if you are born a boy you are always a boy" in a class discussion on transgenderism? Suppose he said it at recess when students were discussing transgenderism? 

Should the school avoid viewpoint discrimination by banning all clothing taking a position on gender identity? 

Mahanoy: Excerpts From Justice Breyer's Majority Opinion

Question presented: “Does the First Amendment prohibit public school officials from regulating off-campus student speech?”

Justice Breyer’s Majority opinion:

We can, however, mention three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.

First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco paren­tis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility.

Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to jus­tify intervention.

Third, the school itself has an interest in protecting a stu­dent’s unpopular expression, especially when the expres­sion takes place off campus. 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. Thus, schools have 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.”

On Tinker:

 As we said in Tinker, “for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused bysomething more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

 The Court held that the fact that the speech upset some students and teachers and resulted in some brief classroom discussions, "does not meet Tinker's demanding standards." p. 10-11 Tinker's standards are "demanding," not de minimis.

Narrow Holding:

Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together,these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.

Mahanoy: Bottom Line

 B.L.'s off-campus speech was protected by an 8 to 1 majority opinion primarily because, however vulgar, it was criticism of the rules of a government program (cheer squad)--and thus speech clearly within the First Amendment's "ordinary protection"--and was posted "outside of school hours" through "her personal cellphone to an audience consisting of her private circle of Snapchat friends."

The posts did not substantially disrupt classroom education, and the school's "anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time."

Bottom line for the majority:

"It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary." p.11

Public School Student Speech Cases

I. Tinker

A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the campus during the authorized hours" is protected so long as he does so "without materially and substantially interfering with appropriate discipline in the operation of the school and without colliding with the rights of others."

II. Fraser

1. Perhaps an ad hoc rule denying the right to engage in "profane" and "vulgar" speech
2. More likely a rule governing the school's right to determine "what manner of speech in the classroom or in school assembly is inappropriate" (student speech that is within the curriculum as opposed to personal speech)

III. Hazelwood

"[E]ducators do not offend the First Amendment by exercising 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."

IV. Morse

1. Probably a narrow, ad hoc rule permitting educators "to restrict student expression [at a school event] that [the administrators] reasonably regard as promoting illegal drug use."

2. Alito and Kennedy make clear that they join the opinion with the understanding that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

V. Mahanoy

Student off-campus speech (e.g. on Snapchat or X)

School officials authority to regulate off-campus student speech is significantly diminished. Parents are the normal parties to deal with off-campus speech. Exception for serious or severe bullying, harassment targeting particular individuals, or threats aimed at teachers or other students.

VI. Forum Cases

Don't forget the forum cases, such as Widmar and Mergens. If a public school creates a forum for student speakers or student groups, forum rules apply and equal access is probably required in most cases.

Morse V. Frederick

The first oral argument we will listen to is Morse v. Frederick, a public school speech case.

Here is a link to the oral argument and other helpful information on Oyez Oyez: LINK

After Spring Break, I will write a blog post on the Morse oral arguments and ask each of you to provide one insight or thought you had while listening to the oral argument. This will help you stay engaged with one another as we do our on line learning.

Here are the relevant facts of Morse as set forth by Oyez:

Facts of the case

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse.... The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional....

Question

 Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?

Fraser (p. 1523)

Fraser concerns “lewd, indecent [and] offensive” speech before a captive audience in a school assembly. (p. 1523) Court distinguishes Tinker’s political, anti-war, message. (P. 1523, 1525) But the "lewd" speech in this case was used as part of a speech nominating a candidate for office in student government. So is it sexual speech or political speech?

            Page 1524: “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”  (Notice also the Court’s approval of governmental inculcation of values and attitudes). Id.

            If you read that statement broadly Tinker is reversed (armbands were deemed “inappropriate” in the classrooms). Narrowly – relates to speech that is part of the school curriculum or only applies to “lewd” and “vulgar” speech.

            But also notice that the Fraser Court emphasized that Mr. Fraser’s speech was disruptive (P. 1523) and “could well be seriously damaging to its less mature audience.”  (edited from casebook) And not a restriction of any political viewpoint.

                                    Page 1524 (plus some edited): “Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.  The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school's basic educational mission.”

Suppose Fraser had given the same speech in the schoolyard during recess?  In other words, how important was it in Fraser that the speech was part of a school assembly? P. 1525 (Stevens)

See also Brennan’s concurrence at p. 1525.

            Notice the Court emphasizes the role of public schools in inculcating the “shared values” of society.  In a society that values freedom of thought and freedom of belief, is this an appropriate role for government?  

            Whose values are those to be inculcated into the hearts and minds of all our children? Are any values “shared” in today’s divided nation? Is this where school choice may have a role?