Student Activism: The Past Visits the Present Again Thomas M. Volz, - - PDF document

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Student Activism: The Past Visits the Present ‐ Again

Howard M. Miller, Esq. Bond, Schoeneck & King, PLLC 1399 Franklin Avenue, Suite 200 Garden City, NY 11530

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Thomas M. Volz, Esq. Law Offices of Thomas M. Volz, PLLC 280 Smithtown Blvd Nesconset, NY 11767

Constitutionality of Protests

• Tinker v. Des Moines Independent Community School District, 393 U.S. 503

(1969)

• FACTS: Tinker involved the suspension of three students for wearing black

armbands as a symbolic protest to the hostilities of the Vietnam War.

• HOLDING: The United States Supreme Court held that the suspensions

were unconstitutional.

• The Court reasoned that students do not shed their First Amendment free

speech rights at the school house gates, but that these rights may be subject to reasonable time, place and manner restrictions.

• The Court also held that student free speech protections do not extend to

speech which would materially and substantially disrupt the educational process of the school environment or that would impinge on the rights of

• thers.

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• Hazelwood School District v. Kuhlmeier, 484 U.S. 260

(1988)

• The United States Supreme Court ruled that school officials did not violate

the free speech rights of students by censoring, for legitimate educational reasons, objectionable material from a school‐sponsored newspaper. The Court held that Tinker’s substantial disruption standard did not apply to school‐sponsored activities, this decision limited Tinker to situations involving the regulation of a student’s “self‐expression” occurring on school grounds.

Constitutionality of Protests Constitutionality of Protests

• Morse v. Frederick, 551 U.S. 393 (2007)
• School officials may restrict student speech at a school event when the

speech is reasonably viewed as promoting illegal drug use. A school principal did not violate the free speech rights of students who held up a banner that said, “Bong Hits 4 Jesus” during the passing of the Olympic Torch, when she directed those students to take down the banner, confiscated it, and thereafter suspended one of the students.

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Clothing – Political

 Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006),

• cert. denied, 2007 U.S. LEXIS 8793:

 Once a week, for two months, a 13‐year‐old student wore

a t‐shirt he bought at an anti‐war rally that depicted President George W. Bush as a chicken‐hawk president and former alcoholic and cocaine user

 After a parent complained, the school instructed the

student to either change his shirt, wear the shirt inside‐

• ut, or to put tape over the drug and alcohol images and
• ver the word “cocaine”

Court Ruled in Favor of the Student

• Court in Guiles held that the school violated the student’s

free speech rights under Tinker because what the school had censored was part of the student’s political message, and there was no evidence that the t‐shirt caused a substantial disruption

Photo source: CBS News, https://www.cbsnews.com/new s/supremes‐ok‐students‐anti‐ bush‐t‐shirt/

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Clothing – Political

 Barber v. Dearborn Pub. Sch., 286 F. Supp. 2d 847 (E.D.

• Mich. 2003):

 Court granted student’s motion for a preliminary

injunction allowing him to wear a t‐shirt to school which had a photograph of George W. Bush and contained the phrase “international terrorist”

Photo source: CBS News, https://www.cbsnews.co m/news/student‐wins‐ anti‐bush‐shirt‐clash/

Barber Rationale

Furthermore, and contrary to Defendants' counsel's assertion at oral argument, the courts have never declared that the school yard is an inappropriate place for political debate. In fact, as the Tinker Court and

• ther courts have emphasized, students benefit when school officials

provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others. As one court has stated:

Our schools, like our communities at large, are invaluably improved by the diversity of their members. All students benefit from the respectful and thoughtful exchange of ideas and sharing of beliefs and practices. Schools, in particular, are vital environments that can provide an education of both the substance of diversity and the responsible manner with which such diversity is approached and expressed.

See 286 F. Supp. 2d 847, 857‐58 (emphasis added).

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Clothing – Religious

 Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp.

2d 965 (S.D. Ohio 2005):

 Court granted permanent injunction prohibiting middle

school from preventing eighth grade student from wearing shirt that included "Homosexuality is a sin! Islam is a lie! Abortion is murder!" unless an imminent and substantial disruption became likely

Religious Speech

 C.H. v. Bridgeton Bd. of Educ., 2010 U.S. Dist. LEXIS 40038

(D.N.J. 2010) – Court granted student’s motion to enjoin the District from prohibiting her from wearing an armband

• r distributing flyers with pro‐life sentiments absent a well‐

founded expectation of disruption.

 Armband was black and red and said “Life”  Anti‐abortion flyers were distributed during non‐instructional

times

 Student wore tape over her mouth during the school day as part

• f her participation in the Pro‐Life Day of Silent Solidarity

 Court found the District did not satisfy the Tinker standard

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Clothing – Vulgarity

 B.H. v. Easton Area Sch. Dist., 827 F. Supp. 2d 392 (E.D.

• Pa. 2011): Court enjoined school from disciplining

students for wearing bracelets with the slogan “I Love Boobies” because school failed to show a well‐founded expectation of material and substantial disruption

 Third Circuit affirmed, 725 F.3d 293 (2013), finding that

the language was not plainly lewd in light of the nationally recognized breast cancer awareness campaign

 See also, K.J. v. Sauk Prairie Sch. Dist., 2012 U.S. Dist.

LEXIS 187689 (W.D. Wis. 2012) (similarly finding “I Love Boobies” bracelets were not vulgar)

Clothing – Confederate Flag

 Schools have prohibited the wearing of protest or

political t‐shirts, including confederate flag shirts, if they are deemed likely to cause a substantial disruption.

 Hardwick v. Heyward, 711 F.3d 426, 440 (4th Cir.

2013), cert. denied, 571 U.S. 829

 Court stated “[a]s long as a student’s speech is likely to

cause a substantial disruption, school officials can prohibit or punish the speech”

 School officials believed the t‐shirts would cause

disruption based on past incidents of racial tension in the school

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Clothing – Confederate Flag

 However, some courts have gone the other way –

Castorina v. Madison County Sch. Bd., 246 F.3d 536 (6th

• Cir. 2001):

 Students were suspended for wearing t‐shirts which

displayed a country singer on the front and a confederate flag on the back

 Case remanded to lower court to determine if the school

board enforced the dress code in an uneven and viewpoint specific manner (Malcom X t‐shifts were allowed), and whether the t‐shirts created a “likelihood of violence or other disruption”

Gang‐Related Clothing

 Grzywna v. Schenectady City Sch. Dist., 489 F. Supp. 2d 139

(N.D.N.Y. 2006) – School told student that she could not wear a red, white and blue beaded necklace because it could be considered “gang‐related” in violation of the school dress

• code. Student said she was wearing the necklace to show

support for American troops in Iraq. Court denied the school’s motion to dismiss, holding that based upon the plaintiff‐student’s argument, the facts, if true, would entitle the plaintiff to relief.

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Gang‐Related Clothing

 Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303 (8th

• Cir. 1997) ‐ School required a student to remove a tattoo on

her hand because a school counselor and several police

• fficers identified the tattoo as a “gang symbol” which

violated dress code policy. The court addressed the issue of

• verlabeling and stated that because gang symbols are
• ften commonplace everyday objects and signs which may

be indecipherable, the prohibition of “gang symbols” without applying any restrictive definition or guidance as to what that entails is impermissibly vague.

 Courts generally allow schools to limit the speech

contained on a mural on school property.

 Gernetzke v. Kenosha Unified School District No. 1, 274

F.3d 464 (7th Cir. 2001), cert. denied, 535 U.S. 1017:

 Members of the Bible Club sued the District alleging that

exclusion of the cross from the mural violated their constitutional rights to religious freedom. The Court rejected the students’ claim, and held that exclusion of the cross was not content‐based discrimination, but rather was an exclusion made because of the principal’s reasonable belief that allowing the cross would lead to litigation and disorder.

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Student Walk Out Protests

• Madrid v. Anthony, 510 F.Supp.2d 425 (S.D. Tex. 2007)
• On Monday, students walked out of school to protest pending

immigration reform legislation in Congress.

• In addition, many students, most of whom were Hispanic, wore

white t‐shirts that read We Are Not Criminals to express their

• pinion of the pending legislation.
• That

same day, the Principal had the students who participated in the walk‐out come inside the school and congregate in the school auditorium.

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Student Walk Out Protests

• Madrid v. Anthony, 510 F.Supp.2d 425 (S.D. Tex. 2007)
• At this meeting:
• The Principal had an interactive conversation regarding the issues at

the heart of the protest with the students

• The Principal explained that walking out of school violated state

truancy laws and could be dangerous to the students.

• In

addition, the Principal emphasized that students who participated in the walk out that day would not be disciplined, but students who participated in any future walk out would be disciplined.

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Student Walk Out Protests

• Madrid v. Anthony, 510 F.Supp.2d 425 (S.D. Tex. 2007)
• During the day Monday, the Principal heard rumors:
• That there may be another walkout the next day
• That some of the Caucasian and African‐American students

were planning to wear Border Patrol t‐shirts to antagonize the Hispanic students.

• Despite the Principal's warning to the students on Monday, a

second walk out occurred on Tuesday with about 130 students walking out.

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Student Walk Out Protests

• Madrid v. Anthony, 510 F.Supp.2d 425 (S.D. Tex. 2007)
• Having been warned they would not be allowed to participate

in another walk out without being disciplined, the students who participated in the walk out on Tuesday were suspended

• n Wednesday, Thursday, and Friday of that week.
• The Court found the students' response to the immigration

issue by walking out of school substantially interfered with the work of the district.

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Student Walk Out Protests

• Madrid v. Anthony, 510 F.Supp.2d 425 (S.D. Tex. 2007)
• “Although students were suspended for walking out of

school on Tuesday, March 28, 2006, they were not disciplined for walking out on Monday, were given an

• pportunity to appropriately express their opinion, and

were warned not to walk out on Tuesday. Because 130 students disobeyed this directive, they were appropriately suspended. ”

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• The students participated in a walk out to protest

immigration reform legislation:

• However, “there is no evidence that the students gave speeches, that

they discussed matters of immigration reform, or that they carried placards or signs that conveyed their messages during the walk‐out.”

• “Rather, the evidence reveals that the students left their school to

engage in a protest march, met up with like‐minded individuals from a local high school, and walked together to a third school.”

• “In the absence of any identifiable speech, these activities, if they are

to be protected by the First Amendment, must fall within the definition of expressive conduct.”

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• The challenge to the school in this case was not whether

the school had a right to discipline the students for the actual act of leaving campus without permission, which was conceded.

• Here,

the students asserted a First Amendment retaliation claim, arguing the students were not disciplined for violating that rule, but rather for their expressive choice to participate in the immigration protests.

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• "To establish a First Amendment retaliation claim in the

student speech context, a plaintiff must show that (1) he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial

• r motivating factor in the defendant's conduct."

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• The first prong of the retaliation claim is determining

whether the students were disciplined for engaging in constitutionally protected activity.

• While it may appear there should be an analysis under the

Tinker framework, that analysis is intended to apply to decisions by a school to punish a student's speech or expressive conduct as such, because of its potentially disruptive impact on appropriate discipline in the operation

• f the school.

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• “Here, the students' expressive conduct…occurred entirely
• ff‐ campus and was not school‐sponsored.”
• “The students were punished not for any disruptive aspect of

their expressive conduct, as expressive conduct, but for the disruption caused by the act of leaving campus without permission.”

• “Unlike in Tinker cases, the school was not exercising

discretion when determining whether to discipline the student for their infraction of the general rule forbidding truancy.”

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• In this case, the major question is whether those students

“can be disciplined under the general content‐neutral rule that students are not allowed to leave campus without permission, when their purpose for leaving is to engage in expressive.”

• “Symbolic expression of this kind may be forbidden or

regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial government interest, and if the interest is unrelated to the suppression of free speech. “

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• The court found the anti‐truancy policy was a content neutral

rule that furthered an important interest unrelated to the suppression of expression.

• The students “conceded that the school has a valid interest in forbidding

students from leaving school without permission.”

• The rule furthers several substantial government interests, including:
• enforcing compulsory education;
• keeping minors safe from the influences of the street;
• maximizing school funding based on attendance (Cal. Educ. Code § 46010);

and

• limiting potential liability for negligent failure to supervise a truant student

properly.

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Student Walk Out Protests

• Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009)
• The court stated “ the anti‐truancy policy only limits students'

expressive conduct during school hours. The students are free to participate in weekend or after‐school events.”

• “The school's policy of disciplining truancies and leaving campus

without permission easily satisfies the intermediate scrutiny applied to content‐neutral rules of conduct.”

• The “incidental effect the rule has on the students' expressive

conduct is permissible, and the students' First Amendment rights have not been infringed by punishing the act of leaving campus.”

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Student Walk Out Protests

• Appeal of Wolfe, 39 Ed Dept Rep, Dec. No. 14,342 (2000)
• A group of students was walking through the hallway

chanting “walkout.” A student in a class overheard the chant and asked his teacher if he could join. The teacher told the student, “do the right thing.”

• Students gathered outside of the building and the Principal
• f the school twice told the students to return to class or risk

suspension.

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Student Walk Out Protests

• Appeal of Wolfe, 39 Ed Dept Rep, Dec. No. 14,342 (2000)
• Although there is some dispute as to what occurred next,

when no students returned to the building, the Principal either:

• Instructed the students that any student who re‐entered the

building would be charged with trespassing; or

• Instructed the students to leave the campus immediately or they

would be arrested for trespassing.

• The appealing student left school grounds, did not return,

and was suspended for five days.

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Student Walk Out Protests

• Appeal of Wolfe, 39 Ed Dept Rep, Dec. No. 14,342 (2000)
• While the appeal argued the district violated due process under

Section 3214 of N.Y. Educ. Law and that the teacher gave the student permission to leave, as relevant here, the Commissioner upheld the student’s suspension for participating in the walk out.

• The Commissioner found:
• “The record indicates that faculty and staff had been advised in advance
• f the walkout and the consequences of student participation.”
• The student “could have avoided suspension had he returned to his

classroom instead of leaving school grounds.”

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Recent Walk Outs and How Districts Should Approach Walk Outs

• Recent protests have included walk outs to call for gun

legislation reform

• Students in California, and across the country, walking out
• f school to protest the “travel ban”
• There are hundreds of events planned this summer, which

may carry into the upcoming school year, to protest the detention and separation of children from their parents by the Federal Government

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Murals

 Bannon v. Sch. Dist. of Palm Beach Co., 387 F.3d 1208

(11th Cir. 2004), cert. denied, 546 U.S. 811:

 A public high school did not violate a student’s free speech

rights when it ordered her to remove religious messages from a hallway mural that she painted as part of a school beautification project.

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Murals



Fleming v. Jefferson County Sch. Dist. No. R‐1, 298 F.3d 918 (10th Cir. 2002), cert. denied, 537 U.S. 1110:

 In the aftermath of the Columbine shooting, faculty proposed

that students be allowed to paint tiles in the hallways of the school as a means of healing. The District approved the project, but prohibited tiles referring to the attack, the date of the attack, and the names or initials of students.

 Court reaffirmed that schools may regulate speech based on

legitimate pedagogical concerns, and held that prohibiting messages with references to the shootings or religion is reasonably related to the school’s interests in maintaining a positive learning environment (as opposed to a memorial to the tragedy) and avoiding divisiveness and disruption from unrestrained religious debate.

Songs

 Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir.

2015), cert. denied, 136 S. Ct. 1166:

 Disciplinary action taken against a student for a rap song

he recorded off‐campus and posted online, which described violent acts to be carried out against 2 named coaches, where the student intended the song to reach the school community, was ruled not to be in violation

• f the 1st Amendment

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Excerpt from Bell

“Experience shows that schools can be places of special danger…Over 45 years ago, when Tinker was decided, the Internet, cellphones, smartphones, and digital social media did not

• exist. The advent of these technologies and their

sweeping adoption by students present new and evolving challenges for school administrators, confounding previously delineated boundaries of permissible regulations…Greatly affecting this landscape is the recent rise in incidents of violence against school communities.”

See Bell, 799 F.3d 392‐93.

Songs

 McCann v. Fort Zumwalt Sch. Dist.,

50 F. Supp. 2d 918 (E.D. Mo. 1999):

 Marching band wanted to play the

song “White Rabbit” by Jefferson Airplane in an upcoming show

 Court granted summary judgment in

favor of school district holding they had the authority to prohibit the marching band from performing a song that could be perceived to advocate drug use

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Field Trips

 Sonkowsky v. Bd. of Educ. for Indep. Sch.

Dist., 327 F.3d 675 (8th Cir. 2003) – Rocky, a 4th grade student, alleged his 1st Amendment rights were violated when the District did not allow him to wear his Green Bay Packers jersey in a photo that was taken to send to the Vikings team. The Court held the District did not violate Rocky’s 1st Amendment rights, stating “Rocky’s preference for the Packers does not trigger heightened protection, and thus the teachers’ reasonable curriculum‐based decisions with regard to appearance, and attendance at school‐related functions will not support a § 1983 claim.”