Bobby Bocagrande, a junior at Nutmeg High School, enjoys tweaking the school administration. Thus, it was not surprising when Bobby pulled the following stunt. Against all odds, the Nutmeg Knights were in the Class M final in baseball last spring. Bobby and two friends came to the championship game, and during the seventh inning stretch, they unfurled a banner that said, "School Sports Is Stupid." A few spectators in the crowd laughed at their poor grammar, but before anything else could happen, Assistant Principal Don Diligent ran over, pulled down the banner, and suspended Bobby and his friends for three days. Bobby and his posse then left the game before the bottom of the seventh started.
Don dutifully reported the suspension to Mr. Principal, who congratulated him on his quick thinking, telling him, "You are sure on the ball! The United States Supreme Court just ruled that students don't have the right to unfurl banners at school events." Thus emboldened, Don added a little spice to the suspension notice sent home to Bobby's parents by suggesting that they should do a better job supervising their son.
That embellishment may have been unwise. When Bobby's parents got that letter, they were incensed at what they considered unfair criticism of their parenting techniques. They consulted with local legal scourge Bill Alot, who told them that he would be pleased represent Bobby and other students who wish to speak their minds.
Bill quickly went into attack mode. He promptly gave an interview to the Nutmeg Bugle, in which he decried the repressive administration at Nutmeg High School. Two days later, Mal Content, a social studies teacher at the High School, wrote a letter to the editor. Mal expressed support for Bobby's free speech rights, and he suggested that the district should settle now before incurring significant legal fees.
Bob Bombast, veteran Board member, was upset when he read the interview with Bill Alot, but he went absolutely ballistic when he read Mal's letter. He immediately called Mr. Superintendent and demanded that Mr. Superintendent discipline Mal. Mr. Superintendent explained to Bob that he did not want to invite another lawsuit, but agreed to call Mal down to his office for a little "chat" on loyalty. Sadly, however, Mal did not appreciate Mr. Superintendent's perspective, and soon Bill Alot had another client.
Given the recent ruling by the United States Supreme Court and the need for loyal employees, can the Board tell Bill Alot and his clients to pound sand?
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Actually, no. The recent ruling on student free speech rights did not give school administrators the right to censor messages on banners willy-nilly. Rather, in a narrow ruling the Court simply clarified the scope of student free speech rights.
Over the years, the courts have drawn a distinction between private student speech and school-sponsored speech. In 1969, the Court decided the seminal case, Tinker v. Des Moines Independent School District, in which it considered the free speech rights of Mary Beth Tinker, who wore a black armband to school to protest the war in Viet Nam. There, the Court stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." It held that students maintain their rights of free speech in school. However, the Court further held that school officials may limit student speech when they reasonably forecast substantial disruption or material interference of the educational process, or invasion of the rights of others. Any such restrictions must be justified by the facts, and they may not be imposed merely "to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
This limitation on the right of school officials to restrict student speech was modified significantly in 1986 and again in 1988. In Bethel School District No. 403 v. Bethel (1986), the Court ruled that school officials could discipline a student for the inappropriate sexual innuendo in the speech he gave nominating a fellow student to serve as class president. Then, in Hazelwood School District v. Kuhlmeier (1988), the Court held that school officials can limit speech in the school newspaper "so long as their actions are reasonably related to legitimate pedagogical concerns." In both cases, the Court held that such action was permissible even though the speech did not result in disruption or interference with the educational process. However, in both cases the speech in question occurred during a school-sponsored event.
Last June, the Court refined these concepts further. In Morse v. Frederick, the Court considered the case of a student who, with some buddies, unfurled a banner, "Bong Hits 4 Jesus" when his classmates were released from class to watch while the Olympic Torch was run by the school. Relying on Tinker, the lower court had ruled that the student's free speech rights were violated because his actions were not disruptive. Writing for the majority, however, Justice Roberts stated that school officials may restrict student speech during a school event if the speech may reasonably be interpreted as advocating illegal use of drugs. This decision is intuitively correct. Indeed, many student dress codes prohibit T-shirts and other clothing that advocate drug or alcohol use.
Significantly, this decision is limited to the issue of speech that advocates illegal use of drugs. By contrast, Bobby's banner, which criticized school sports, would be subject to a Tinker analysis. It was private speech, in that Bobby was clearly not representing the school. Moreover, while an attack on sports may cause a disruption on a Friday night in a Texas football stadium, there was no indication that such was the case in Nutmeg. In short, student free speech rights are alive and well, and it is clear that Don Diligent violated Bobby's rights when he disciplined Bobby for the banner.
This situation also raises the question of whether Mal's rights were violated, and the answer is "not yet." Teachers have free speech rights, subject to a somewhat different analysis. Public employees have free speech rights when their speech relates to a matter of public concern and is not part of their job responsibilities. Such speech can be restricted only if it significantly disrupts governmental operation. To be sure, Mr. Superintendent did not formally discipline Mal. However, by his actions, Mr. Superintendent put the issue of free speech rights on the radar screen. Now, if Mal suffers any adverse consequences (discipline, transfer), he may argue that the justification offered for any such action was a pretext, and that the real reason was retaliation for the letter, in violation of his free speech rights.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.