Greenburg: The convergence of student speech and the First Amendment

Last week, I wrote an article warning Arizonans to be weary of legislation currently pending in our state.

Jann-Michael Greenburg (photo by SUSD)

I addressed, in part, two House bills which address teacher “speech” on campus. I noted general concerns with these proposed pieces of legislation, including the fact that their language is broad and might infringe on teachers’ legitimately protected speech as well as have a chilling effect on important teaching styles and lessons which might certainly benefit students’ learning.

Since then, a similar First Amendment issue has arisen concerning students’ on-campus speech at Perry High School in Chandler Unified School District, where students and parents allege that school staff demanded that students remove pro-President Trump clothing and put away a Trump “flag.”

As a school board member, both matters are of equal concern to me.

In Tinker v. Des Moines Independent School District (1969), the United States Supreme Court stated that:

First Amendment rights, applied in light of the special circumstances of the school environment, are available to teachers and students. It can hardly be argued that either teachers or students shed their constitutional rights to freedom of speech or expression at the school house gatehouse.

The Supreme Court provided a general test for when student speech (in this case students wearing black armbands while on campus to protest the Vietnam War) could be prohibited:

[W]here there is no finding and no showing that engaging in forbidden conduct would “materially and substantially interfere with the requirements of appropriate conduct in the operation of a school,” the prohibition cannot be sustained.

Tinker was a landmark decision and one that should be greatly supported and reinforced by school boards, school administrators, staff, students, and their parents, especially given the importance of the free flow and market of ideas on educational campuses.

Despite this broad ruling, future court decisions would chip away at some of these protections (see, for example, Supreme Court decisions in Bethel School District v. Fraser (1986) concerning an “offensively lewd and indecent speech” at a school assembly; Hazelwood School District v. Kuhlmeier (1988) concerning censoring student newspapers; Morse v. Frederick (2007) concerning a student’s banner which could be viewed as promoting illegal drug use).

Generally, language found on student clothing has been found to be protected speech since it is not school sanctioned speech and would typically not result in school disruption.

In Guiles v. Marineau (2006), the federal Court of Appeals found protection for a student’s shirt worn on a public school campus which depicted President George W. Bush in a derogatory manner, including a caricature of him as a chicken surrounded oil, money, and cocaine motifs, as well as descriptive words such as “world domination,” “lying drunk driver,” “draft dodger,” “cocaine addict,” and other colorful terms.

Standing out in this field is the Dariano v. Morgan Hill Unified School District (2014), in which the federal Court of Appeals serving California found that under the specific facts of the case and school history, the school district properly prevented students from wearing clothing featuring the American flag on campus during Cinco de Mayo.

The history showed a number of past disturbances and misbehavior caused by wearing such clothing on Cinco de Mayo in the past.

As should be clear from my prior writings on the subject, I care deeply about the First Amendment and view it as one of the most essential rights needed for a democracy to succeed and in certain cases I believe courts have been too restrictive of public school students’ speech.

To that end, I understand the “shock” a student, such as those involved in this incident at Perry High School, might feel when asked to stop certain behavior one might naturally think is constitutionally permissible, especially when restricting free speech on school campuses is clearly antithetical to their reason for existing in the first place.

Flags and banners should probably be reviewed under the Tinker, and following Supreme Court, test. In 2008, after then President-elect Obama won the presidential election, a student drove on to campus at my high school with a large Confederate flag attached to his vehicle.

Given that the Confederate flag was used to represent a rebellion specifically aimed at protecting the institution of slavery in the United States, I can see how, at the time at my school, such an action could very likely lead to school disturbances.

Regardless, it is clear from news reports that the facts of what actually occurred are heavily contested by all parties involved, and whether Perry High School officials acted permissibly is a question to be answered once all of the facts have been properly established.

As a final note, our legislators’ response to this matter has been equally robust and ironic.

The same lawmakers who are currently working diligently to restrict teacher speech on campus are now requesting the Attorney General review this incident as an infringement of these students’ First Amendment rights while on campus. Perhaps our lawmakers should consider making the same robust defense for teachers’ speech as well.

Editor’s Note: Jann-Michael Greenburg is a Scottsdale Unified School District Governing Board member.

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