Attorney offers guidance on free speech issues
05/09 -- When it comes to free speech issues in public schools, school boards should work with their school attorneys to develop sound policies and practices to avoid conflicts and lawsuits later, says Michelle G. Parker, a school attorney in Flagstaff, Ariz.
“Once a fight over a free speech matter in schools is underway, the community is often deeply divided, national advocacy groups may be taking sides, and a media feeding frenzy may have already begun,” Parker told the audience at the School Law Seminar held in conjunction with the NSBA Annual Conference.
Parker reviewed some of the 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 Supreme Court decision that expanded school officials’ authority to regulate student speech is Morse v. Frederick in 2007. The court held that educators are able to restrict student speech at a school-sanctioned event, when the speech is viewed as promoting illegal drug use. (This case involved a student displaying a banner with the statement “Bong Hits 4 Jesus.”)
Several recent rulings have confirmed school officials’ authority to regulate what teachers can say or do in class. The Seventh 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 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 their protection? 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 saftey? If Yes, the speech is not protected and may be restricted.