FREEDOM OF EXPRESSION (US SUPREME COURT)
Bethel School District v. Fraser (1986)
In 1986 the US Supreme Court narrowed the "Tinker standard" when it ruled 7-2 in the case Bethel School District v. Fraser that a school can ban expression it considered to be "lewd, indecent or offensive" whether or not it caused "substantial disruption" in the school.
Matthew Fraser, a student at Bethel High in Washington State, had delivered a nomination speech for classmate Jeff Kuhlman for a student government office before a voluntary assembly. The speech contained these sentences: "I know a man who is firm he's firm in his pants, he's firm in his shirt, his character is firm but most...of all, his belief in you, the students of Bethel, is firm. Jess is a man who will go to the very end even the climax, for each and every one of you." The next day a school official informed him that he had violated a school rule against "the use of obscene, profane language or gestures" and he was given a three-day suspension.
He sued in federal court, arguing that the suspension violated his First Amendment rights. Both the federal and US Court of Appeals for the Ninth Circuit agreed with him, stating that his speech did not cause the "substantial disruption" which was part of the "Tinker standard" for protected student speech. But the US Supreme Court sided with the school district. "The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior," Chief Justice Burger wrote. "The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech...would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students." Schools therefore could punish students for "lewd, indecent, or offensive" speech.
- Listen to the oral argument: http://www.oyez.org/cases/1980-1989/1985/1985_84_1667
- Read the decision: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=478&invol=675
- Read what Matthew Fraser says about the case 15 years later: http://www.freedomforum.org/templates/document.asp?documentID=13701
RELIGION IN SCHOOLS
A three-judge panel of the US Court of Appeals for the Ninth Circuit ruled in 2009 that the Everett School District did not violate a student rights after a school wind ensemble was barred from playing "Ave Maria" by Franz Biebl at a junior high school graduation ceremony. The majority held that the decision of the school district to limit music performances at graduation to pieces that were "entirely secular" did not violate free expression rights and were in keeping with the Constitution's Establishment Clause.
(The US Court of Appeals for the Ninth Circuit has jurisdiction in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Oregon as well as Washington, Guam and the Northern Mariana Islands.)
FREEDOM OF EXPRESSION ON THE INTERNET
Reaffirming that "students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," a county Superior Court judge ruled in 2000 that public school officials at Timberline High School in Lacey, Washington cannot punish a student for creating on his home computer an Internet parody that lampooned the school's assistant principal. The student, Karl Beidler, had included a disclaimer saying the posting was a parody. He was suspended for the duration of the school year for "exceptional misconduct." Beidler received $10,000 in damages from the school district.
FREEDOM OF EXPRESSION ON THE INTERNET
In 1995, when home websites were still something of a novelty, Paul Kim, a high school senior and honor student, spoofed his school on the "Newport High School Unofficial Home Page" which he created on his home computer. After seeing the site, the school principal withdrew the school's recommendations from the colleges to which Kim had applied and from the National Merit Scholarship office. After the ACLU intervened, the school agreed to an out-of-court settlement which included an apology, $2,000 in damages and the reinstatement of his letters of recommendation.
FREEDOM OF EXPRESSION ON THE INTERNET
A US District Court judge has upheld the 40-day suspension of a Kentridge High School student for his involvement in making a video that mocked an English teacher. The film was posted on You Tube and MySpace. The student, who does not appear in the film but allegedly helped edit it, had hoped to get the suspension overturned so he could attend his graduation ceremony on June 16, 2007. The judge said that while students did have a First Amendment right to criticize teachers, the film was "lewd and offensive and devoid of political or critical comment."
ZERO TOLERANCE - FREE EXPRESSION
In January 2002 the full US Court of Appeals for Ninth Circuit refused to reconsider the case of James LaVine, who, as a junior at
submitted a poem to his English teacher about a boy who shoots 28 students in school. LaVine was expelled, but readmitted after being examined by a psychiatrist and given a clean bill of health. But the military had already cancelled his enlistment contract as a result of the expulsion. His parents sued the school district, arguing that his free speech rights had been violated, and a federal district court judge in
agreed, ruling that the poem was not a true threat of violence. But then three judges on the Ninth Circuit Court heard the appeal and decided unanimously on behalf of the school district.
LaVine's parents asked the full court to reconsider, but both it and the US Supreme Court declined to do so. One of the judges who wanted the court to reconsider, Circuit Court Judge Andrew Kleinfeld, wrote in dissent, "After today, members of the black trench-coat clique in high schools in the western
will have to hide their artwork. School officials may now subordinate students' freedom of expression to a policy of making high schools cozy places, like day-care centers, where no one may be made uncomfortable by the knowledge that others have dark thoughts, and all the art is of hearts and smiley faces" (Education Week, February 13, 2002).
In 2006, after the ACLU threatened to bring a lawsuit, the Nine Miles Falls School District decided to stop searching its junior and high school students with drug-sniffing dogs. The school district had hired Interquest Detection Canines to visit the middle and high school at least four times a year and search for illegal, prescription, and over-the-counter drugs as well as alcohol and tobacco while students were under “level one lockdown.” The first time the dogs were brought to the school they had an 85 percent failure rate when they alerted to particular packages.
In 2008, the Washington Supreme Court ruled 9-0 that Wahkiakum School District’s program of suspicionless drug tests for high school athletes violated the "privacy clause" of the state Constitution. The ruling is in opposition to the Vernonia and Earls US Supreme Court decisions that permit the random drug testing of student athletes and of students who want to participate in other extra curricular activities, based on the US Constitution.
In 2005 the federal district court threw out a $47 million lawsuit brought by the NAACP on behalf of 17 Black students in the
school district. The suit alleges they were the victims of "excessive force" used by school security officers. The security guards had put students as young as 11 years old in handcuffs. They were also were accused of pulling students' hair, dousing them with pepper spray, slamming them against lockers and throwing them to the floor.