STUDENT RIGHTS EXAM CASE

Holly A. Scribner EDU 702 Educational Law University of New England rofessor Susan !. Hill"an# $.D. %arc$ &0# 20'&

STUDENT RIGHTS EXAM CASE Provide legal background on s uden s! cons i u ional rig" s# "e cons i u ional la$ and land%ark cases along $i " "e es ablis"ed legal es s& T"en de er%ine $"a cons i u ional rig" "e "ig" sc"ool s uden s 'eel is being viola ed in "e case scenario s a ed belo$& (is "e co%)le e es "a s"ould be a))lied under eac" la$*er!s sec ions and "en a))l* "e es o anal*+e "e case iden i'*ing 'ull* "e argu%en s "e s uden s, la$*er $ould use and "en "e argu%en s "e sc"ool,s la$*er $ould use& Facts:A grou( of $ig$ sc$ool students say it is unfair t$at ad"inistrators will not allow t$e" to wear )*s$irts wit$ (ro*gay senti"ents w$ile ot$ers are allowed to wear (olitical s$irts and (ro*life "essages. )$e dis(ute began w$en ad"inistrators ob+ected to two $ig$ sc$ool students wearing )* s$irts o(enly e,(ressing t$eir $o"ose,uality during -twin day.. )$e girls were forced to ta/e off t$e s$irts# w$ic$ said -lesbian ' and -lesbian 2#. along wit$ ot$er general (ro* gay state"ents. Assistant rinci(al said t$e s$irts (osed a distraction to learning. -A s$irt li/e t$at draws undue attention#. $e said. -0e1re $ere to focus on acade"ics# not c$oices in se,uality.. 2n res(onse to t$e ad"inistrative action# one $ig$ sc$ool1s younger brot$er su((lied $and* "ade )*s$irts s(orting a rainbow to a((ro,i"ately '3 students w$o wore t$e". %essages on t$e s$irts included -straig$t but su((ortive. and -2 $ave t$e rig$t to e,(ress "y love.. )$e Assistant rinci(al again told t$e students to re"ove t$eir s$irts4 no (unis$"ent was given. Assistant rinci(al cited (otential negative bac/las$ as a reason for disallowing t$e rainbow s$irts. -2f we were to $ave a student w$o says# 5if t$ey can be su((ortive# w$y can1t 2 be against61 )$at would definitely cause a disru(tion#. $e said. -2 t$in/ t$e reason t$ey "ade t$e s$irts was to draw attention 7away fro" t$e focus of t$e classroo"8.. A +unior "ale student# w$o did not wear a s$irt but is su((ortive of t$e effort# said t$e Assistant rinci(al establis$ed a double standard. -2f 2 was in class# 2 would be "ore distracted by a fetus on a (erson1s s$irt t$an a rainbow#. $e said# "a/ing reference to (ro*life )*s$irts. -)$ey s$ould be able to $ave it all# or t$ey s$ouldn1t $ave any of it.. Newly*$ired Su(erintendent said teac$ers $ad co"(lained to ad"inistrators about t$e s$irts# but $e would not na"e t$ose teac$ers. -)$ere1s a li"it to w$at we can 7say8 about student disci(line#. $e said. -)$is is not a state"ent about (ro*life 7or8 a state"ent about gay rig$ts# it1s a dress code issue.. )$e $ig$ sc$ool dress code says sc$ool dress s$ould ensure t$e $ealt$# welfare and safety of t$e student body and en$ance a (ositive i"age of t$e sc$ool. Any for" of dress or groo"ing t$at attracts undue attention or violates t$e (revious state"ent is unacce(table.

STUDENT RIGHTS CASE ANA(-SES Iden i'* "e sec ion o' la$ in $"ic" "e case 'alls b* c"ecking "e bo. "a a))lies o "e case "a is being anal*+ed& Freedom of Expressionpersonal Freedom of Expressionschool sponsored S uden A))earance Search and Seizure Provide legal background on s uden s! cons i u ional rig" s# "e cons i u ional la$ and land%ark cases along $i " "e es ablis"ed legal es s& A "e end re'erence "e es "a $ill be used $i " "is )ar icular case& The Freedom of Speech, press, assembly, and petition are often collectively referred to as the freedom of expression, and the U.S. Supreme ourt has developed a separate body of case la! re"ardin" the free expression ri"hts of students. Throu"hout this chapter the authors examined four types of ri"hts !hich excist in a school settin". The follo!in" !ill outlineeach of the the sections of student ri"hts and the tests !hich are utilized to determine if they are applicable in a court settin". The first area is Freedom of Expression, this cate"ory is then divded into t!o subcata"ories Freedom of Expression# $ersonal Speech on School %rounds and Freedom of Expression $ersonal Speech &ff School %rounds.'(illman and Trevas)is, *+,-. /reedo% o' E.)ression0 Personal /o students have a ri"ht to freedom of speech on school "rounds0 The ans!er is yes, !ithin reason. The ,123 "round brea)in" case of Tinker v. Des Moines Independent Community School District determined a standard list of factors !hich is used in all cases of 4personal speech5 that involve students both in and out of school. '(illman and Trevas)is, *+,-. The United States Supreme ourt indicated that courts should balance speech !ith the authority of the school, ans!erin" the follo!in" 6uestions# /oes the conduct constitute expression at all0 7s it meant to communicate an idea0 I' "e ans$ers o "e $o )rior 1ues ions are *es2 "an one 'ollo$s u) $i " "ese addi ional 1ues ions& So i' i is s)eec"&&& 7s the speech defamatory, obscene, vul"ar or le!d0 /id the speech cause disruption 'cannot be based on fear of disturbance. 7s the school8s rule uniformly applied or is there evidence of vie!point discrimination0 7s the school8s action related to 4le"itimate peda"o"ical 'meanin" school. concerns05 '(illman and Trevas)is, *+,-. The Tin)er case rulin" further indicated that the freedom of expression !as not considered defamatory, obscene, vul"ar, or le!d and no distruption had occurred. 9lthou"h the Tin)er case "oes bac) to ,123, the impact of this case continues to provide a benchmar) for all future Freedom of expression cases involvin" shools. :hile the Tin)er case delt !ith the inpac) on hi"h school students, the more recent *+,, Fifth ircuit ourt of 9ppeals case ;or"an v. S!anson proved that the Tin)er factor !ould also apply to elementary and middle schools. '(illman and Trevas)is, *+,-.

9n important aspect to remember is in determinin" this case is that school officials may ta)e reasonable action to restrict students expression !hen there is infact a 4reasonable li)elihood of substantial disorder5 and must be 4based on fact, not intuition5 Schools can ta)e respnable action to rescrtrict students expression in schools but beyond the school !alls !hat type of rescriction can a school really do0 ourts have ruled on many cases dealin" !ith such cases, !here is the tine dra!n0 The Tin)er test !as ad<usted follo!in" the ,1=2 case of Bethel School District No. 403 v. Fr ser to examine some aditional 6uestions includin"# 7s the speech defamatory, obscene, vul"ar or le!d0 /id the speech cause disruption 'cannot be based on fear of disturbance.0 7s the school8s rule uniformly applied or is there evidence of vie!point discrimination0 7s the school8s action related to 4le"itimate peda"o"ical concerns05 '(illman and Trevas)is, *+,-. /reedo% o' E.)ression#Sc"ool S)onsored &n >anuary ,-, ,1==, the ourt ruled that ?The public schools do not possess all of the attributes of streets, par)s, and other traditional public forums that @time out of mind, have been used for purposes of assembly, communicatin" thou"hts bet!een citizens, and discussin" public 6uestions,A? accordin" to >ustice Byron :hite in ,1==. This rulin" !as created follo!in" the (azel!ood School /istrict el. al. v. Cuhlmeirer et al. ',1==. there by creatin" the (azel!ood standard !hich concludes that educators do not offend the First 9mendment by exercisin" editorial control over the style and content of student speech in schoolDsponsored expressive activities so lon" as their actions are reasonably related to le"itimate peda"o"ical concerns. 9ddin" the (azel!ood factors to the Tin)er test is used in all free speech cases involvin" schoolDsponsored speech. The additional factors inlude# Courts !ill " l nce speech !ith the uthority o# the school$ ns!erin% the #ollo!in% &uestions' Does the conduct constitute e(pression t ll) Is it me nt to communic te n ide ) Is the speech de# m tory$ o"scene$ vul% r or le!d) Is it speech th t "e rs the school*s imprim tur or is it person l student e(pression) Did the speech c use disruption +c nnot "e " sed on #e r o# distur" nce,) Is the school*s trule uni#ormly pplied or is there evidence o# vie!point discrimin tion) Is the school*s ction rel ted to -le%itim te ped %o%ic l concerns).

I# it is speech...

+/illm n nd Trev skis$ 0013, /reedo% o' E.)ression 3 S uden A))earance Tin)er, Fraser and (azel!ood cases all set standard factors for determinin" freedom of expression cases. These cases ho!ever did not focus specifically on student appearance. 7f the court decided that the case falls under the Tin)er test t!o 6uestions !ill be as)ed first. 7f these 6uestions prove to be true then the rest of the tin)er test !ill be applied. The t!o intital 6uestions in Student 9ppearance cases are# Does the conduct constitute e(pression t ll) Is it me nt to communic te n ide ) +/illm n nd Trev skis$ 0013, 7n additon to utilziin" their First 9mendment ri"hts, students have utilize Fourteenth 9mendment to protect their personal liberties. The Tin)er test in these cases !ould not be utilized instead the court !ould evaluate the de"ree of reasonableness of the schoolAs "roomin" policy and ho! it mi"ht relate to safety and order !ithin the school. Should the Tin)er Test be used and a there is an additional concern that the 4speechEappearenace5 is defamatory,

obscene, vul"ar or le!d the court !ill apply the Fraiser test in before rulin" on the case. '(illman and Trevas)is, *+,-.

Due Process 4Fo person shall be deprived of life, liberty, or property !ithout due process of la!5 The Fifth 9dmendment protects these ri"hts, !hile the Fourteenth 9mendment states the 4Fo state shall ma)e or enforce any la! !hich shall abrid"e the privile"es or immunities of citizens of the United States.5 The Fourteenth 9dmendment does on to protect students ri"hts by ensurin" due process. The /ue $rocess serves t!o basic "oals. &ne is to produce, throu"h the use of fair procedures, more accurate results# to prevent the !ron"ful deprivation of interests. The other "oal is to ma)e people feel that the "overnment has treated them fairly by, say, listenin" to their side of the story.'(illman and Trevas)is, *+,-. Searc" and Sei+ure There are many search and seizure cases that shaped the process concernin" schools. The Supreme ourt applied the 4special needs5 exception to a public school environment in the case, Ne! 2ersey v T.3.4.$ supr +1567, follo!in" the ruled that the school needed to use 4reasonable cause5 in determinin" !hether a search can ta)e place and that students ri"ht to privacy is maintained. The Balancin" Test !ill be utilizin" to ensure that that it !as a reasonable to search. The Balancin" test consists of follo!in" t!o 6uestions# :hether the action !as <ustified at its inception0 :hether the search as it !as conducted, !as reasonably related in scope to the circumstances0 '(illman and Trevas)is, *+,-. This student exam case !ill fall under Student 9ppearance in !hich the Tin)er Test !ill be applied after the initial t!o 6uestions# Does the conduct constitute e(pression t ll) 8es Is it me nt to communic te n ide ) 8es There for the tin)er test !ill be used to determine if these students ri"hts are bein" violated based on freedom of expression.

(a$*er 'or "e )aren s on be"al' o' "e c"ild Co)* all )ar s or )oin s o' "e es 4%ake sure o include eac" and ever* co%)onen 5 and a))l* "e es o genera e "e argu%en s "a "e )aren s, la$*er could %ake o $in "e case& The la!yer for the parents on behalf of the child !ill have to expan all the components of the Tin)er test in addition to the first t!o 6ualifiy 6uestions !hich need to be ans!ered before a case can be demed Freedom of Expression in re"ards to Student appearance. The la!yer !ill intitially present a solid bac)"round on this case, sho!in" the Does "e conduc cons i u e e.)ression a all6 The la!yer !ill stress that the students !ere expressin" their o!n option openly by displayin" their homosexuality durin" t!in day. Is i %ean o co%%unica e an idea6 The la!yer !ill say that the students !ere communicatin" an idea but in no means based on advocatin" for or a"ainst any one specific thin". Since the initial 6uestions !ere applied to this case, the la!yer !ill move on to sho! ho! the Tin)er test !ill be used to sho! that the students freedom of expression !as violated.

Is "e s)eec" de'a%a or*2 obscene2 vulgar or le$d6 The la!yer !ill sho! that infact the tDshirts had no defamatory, obsence, vul"ar or le!d speech on their shirts. 9 simple proD"ay statements and 4Gesbian ,5 and 4Gesbian *5 !ere printed on these shirts. The la!yer !ill sho! that that althou"h one could imply these shirts as a sexual nature, that it !as personal speech and should be considered no different then the commonly found shirts in schools that read 4Thin" ,5 and 4Thin" *5. Is i s)eec" "a bears "e sc"ool,s i%)ri%a ur or is i )ersonal s uden e.)ression6 These shirts sho! no speech that bears the schoolAs impriamtur and are solely based on the students personal expression. /id the speech cause disruption 'cannot be based on fear of disturbance.0 7s the school8s trule uniformly applied or is there evidence of vie!point discrimination0 The la!yer !ill sho! that these shirts provided no more disruption then other proDlife or political tDshirts that have currently been allo!ed in the school system. The la!yer !ill sho! that if the school feels that the statements presented !ere infact a disturbance to the school that there should be more focus on !hat they are teachin" their students by havin" t!o standards of acceptance for students vie!s. The la!yer !ill also tie in the Tinker v. Des Moines c se o# 1595, !here the Supreme ourt ruled that ?stateDoperated schools may not be enclaves of totalitarianism? and students are entitled to free speech so lon" as it does not Ainterfere !ith the re6uirements of appropriate discipline in the operation of the school.A? The la!yer !ill brin" up the Hamecni) v. 7ndian $raire School /istrict I*+J '*+,,. to demonstrate a past case !here the Seventh ircuit ourt of 9ppea)s felt that the !ordin" used on the tDshirts !here not 4fi"htin" !ords5 or other!ise !ords that !ould cause a reasonable person to be violent. Is "e sc"ool,s ac ion rela ed o 7legi i%a e )edagogical concerns68 The la!yer !ill also point out that the school had no solid proof that there !as any le"itimate peda"o"ical or educational concerns based on ther attire the students choose to !ear. :ere the students provided due process in their disapline of school dresscode violation, it appears that there !as no further disabiline established then the removal of the clothin". The la!yer for the students may be able to prove that there infact !as no proper documentation !hich !ould have fullfilled the follo!in" test# ,. &ral or !ritten notice of the char"es a"ainst the studentK *. 9n explanation of the evidence if the char"es are deniedK and , -. 9n opportuntiy for the student to present hisEher side of the incident. Is "e s)eec" de'a%a or*2 obscene2 vulgar or le$d6 The la!yer !ill also point out that in this case the students did not sho! any si"n of defamattory, obscene, vul"ar or le!d. The focus of their shirts and the shirts of their supportin" peers sho!in" support did not sho! any of the above. Did "e s)eec" cause disru) ion 4canno be based on 'ear o' dis urbance56 The la!yer !ill claim that these students !ere not the cause of disruption in the school, and infact the administration caused more of a disruptiont to the students in the school by forcin" the removal of the initial t!o shirts resultin" in the students peers to raely to sho! support of them. The la!yer !ill also sho! that there !as more of a fear of distruction from the administration !ho thou"ht there !ould be an issue, but had not actually seen or heard of any distrubances !hich had been done. The la!yer for the students ho!ever !ill refere to the comments made by the assistant prinicpal !hich had told the students to remove their shirts citin" a potential ne"ative bac)lash, the la!yer for the students !ill site the fact that school officials may ta)e reasonable action to restrict students expression !hen there is infact a 4reasonable li)elihood of substantial disorder5 and must be 4based on fact, not intuition5 and that decission !as solely based on inution and not a reasonable li)eihood. Is "e sc"ool,s rule uni'or%l* a))lied or is "ere evidence o' vie$)oin discri%ina ion6 The school does have a dress code policy !hich !as desi"ned to ensure the health, !elfare nad safety of the student body and enhance a positive ima"e of the school. The la!yer !ill revie! this policy and identify that the students did not intentialy plan to violate any school policies and the initial evnet occurred durin" a 4specialty day5 at the school.

(a$*er 'or "e sc"ool

Co)* all )ar s or )oin s o' "e es 4%ake sure o include eac" and ever* co%)onen 5 and genera e "e argu%en s "a "e sc"ool,s la$*er could %ake o $in "e case& The la!yer for the school !ill start by stressin" that under the Tinker v. Des Moines Independent School District ',121. decision, public CD,* schools are indeed entitled to restrict student speech !hen it poses a material ris) of substantially disruptin" school !or). Does "e conduc cons i u e e.)ression a all6 The la!yer for the school !ill sho! that yes the students conduct !as infact constituted expression. They students choose to participate by !earin" the attire in 6uestion. Is i %ean o co%%unica e an idea6 The la!yer for the school identifies that t!o students in 6uestion !ere indeed tryin" to convey a messa"e or idea, and the role of the school is to not have any atire provided undue attention from other students. Is "e s)eec" de'a%a or*2 obscene2 vulgar or le$d6 The la!yer for the school !ill present that althou"h the shirts !ere ta)en as obscene by many of the students and other staff at the school. Is i s)eec" "a bears "e sc"ool,s i%)ri%a ur or is i )ersonal s uden e.)ression6 The la!yer for the school !ill present a case that because the initial shirts !ere part of a 4speciality t!in day5 at the school that all of the school policies still excist and that all of the students had the school is holdin" the students accountable for a dress code violation and not anythin" else. The lay!er !ill also state that the students did not have approval from the school there for !ere in violation of the schools dress code. They !ill also "o on to sho! proof that the students and parents !ere all in a"reement of the schoolAs dress code policy from the start of the school year. Did "e s)eec" cause disru) ion 4canno be based on 'ear o' dis urbance56 Is "e sc"ool,s rule uni'or%l* a))lied or is "ere evidence o' vie$)oin discri%ina ion6 The la!yer for the school !ill sho! that there infact !as disruption caused by the initial violation of the school dress code. :hen the additional ,3 students participated in a reactive matter of !earin" supportin" tshirts this sho!s proof that the students !ere not en"a"ed and focused on their academic re6uirements. They la!yer !ill also document the number of complaints filed by staff memebers and possibly other students that their !as a distraction !hich caused a disruption and the focus of this clothin" choice has dra!n a!ay from the focus of the classroom. The la!yer for the school !ill also use the fact that school officials may ta)e reasonable action to restrict students expression !hen there is infact a 4reasonable li)elihood of substantial disorder5 and that due to the contraversal messa"e that there !as a reasonable li)elihood that there !ould be repercussions and ne"ative bac)lash from allo!in" this type of clothin" !hich infact does violate the schools established dress code. Is "e sc"ool,s rule uni'or%l* a))lied or is "ere evidence o' vie$)oin discri%ina ion6 The school does have a dress code policy !hich !as established to prevent ne"ative or unsafe violations of the code. There !as little supportin" detail that sho!s that there !as a procedural process done !hich !ould include follo!in" the test re"ardin" due process. The la!yer for the school !ill claim that in this case the students !ere not infact bein" disaplined for their actions and that the due process test and 6uestions !ould not apply in this cirumstance. -our overall assess%en #9"o "as "e s ronger case6 :us i'* *our o)inion al$a*s basing i on legal )rinci)les 4so al "oug" i is *our assess%en 2 i s"ould "ave so%e grounding in "e la$5& 7 feel that there is a lac) of information to stron"ly support either side of this case, 7 believe that in this case ho!ever the students have the stron"er case. The school is claimin" that it is infact a dress code violation ho!ever there is no !ordin" in the policy that claims that that either students clothin" !as unexceptable. There !as not a clear definition of !hat school dress !hich ensures the health, !elness and safety of the students body is and the 4the enhance a positive ima"e of the school5 is the school ashamed of the pro homosexual statements0 They did not comment on the prolife or pro polician clothin". The school can not use the 4possible5 or 4intuition5 that these students actions mi"ht cause potiental bac)lash. The la! clearly states that there has to be a 4reasonable li)elihood of substantial disorder5 in order for the hi"h school officials to ta)e reasonable action to restrict students personal expression.

Re'erences Susan Dudley 9old# Tinker v. Des Moines: Free Speech for Students (Supreme Court Milestones) 7200:8. Hill"an# S. !.# ; )revas/is# D. <. 720'&8. Sc$ool law= Legal fra"ewor/# guiding (rinci(les# and litigated areas. Swedesboro# N!= )$e A"erican 2nstitute for History Education. $tt(=>>(cssonline.org>(roducts*(age>te,tboo/s '*++=.. Letrieved from http#EE!!!.fivefreedoms.or"E3freedomsEassemblyEle"alMfa6s