Attorney offers guidance on free speech issues

When dealing with free speech issues in public schools, board members and their attorney should work together to develop sound policies and practices to avoid conflicts and eventual litigation, a Flagstaff, Ariz., school attorney said Friday at the 2009 School Law Seminar.

"Once a fight over a free speech matter in schools is underway, the community is often deeply divided, the national advocacy groups may be taking sides, and the media feeding frenzy may have already begun," Michelle G. Parker said during the Council of School Attorneys session.

Parker reviewed key court rulings involving the First Amendment and various statutes aimed at eliminating discrimination, noting that "while the notion of ensuring the separation of religion and the public schools may initially seem fairly obvious, as should the practice of nondiscrimination, the actual implementation of the laws is complex and can be fraught with difficulties."

A key U.S. Supreme Court decision in 2007 expanded school officials' authority to regulate student speech. In Morse v. Frederick, also known as the "Bong Hits 4 Jesus" case, the court held that educators are able to restrict student speech at school-sanctioned events when the speech is viewed as promoting illegal drug use.

Several recent rulings have confirmed school officials' authority to regulate what teachers can say or do in class. The 7th Circuit, for example, ruled in 2007 against a teacher who charged her free speech rights were violated when she was fired after speaking out in class against the war in Iraq (Mayer v. Monroe County Community School Corporation).

To help school officials navigate through the complexities of student speech issues (including T-shirt messages, drawings, and online messages), Parker offered some general guidelines:

• Is the speech vulgar, obscene, lewd, plainly offensive, seen as promoting illegal drug use, or inappropriate in a school setting? If the answer is yes, it is not protected and may be restricted.
• Is the student speech merely commenting upon political or social issues or is the speech merely advocating a position that is different from school policy ? If the answer is yes, the speech is likely to be protected and may not be restricted.
• Does the student speech violate the rights of other students or will it cause harm to other students that might require the protection of those students? If yes, the speech is not protected and may be restricted.
• Is it reasonable to believe that the student speech will cause a substantial disruption of or interference with school activities or post a direct threat to school safety? If yes, the speech is not protected and may be restricted.