What’s ahead for student speech in 2013?

Monday, December 31, 2012

2013 could be an important year for the First Amendment and public school students, teachers and administrators. Several pressing questions remain unanswered in the area of free-speech rights in K-12 public schools.

They include:

How far does school authority extend over off-campus, online speech by students? The U.S. Supreme Court has assiduously avoided answering this question. The uncertainty often leaves school officials in a quandary about whether or not they can discipline a student for social-networking posts. Several years ago, University of Florida professor Clay Calvert warned it was a “pervasive and pernicious First Amendment problem cropping up at schools across the country.”

Are cyberbullying laws or policies constitutional? A related question concerns the constitutionality of certain laws designed to punish those students who bully others online. Some laws specifically target speech that occurs off-campus. The push to fight cyberbullying is laudable, but some laws may be applied to target intemperate, offensive speech that nonetheless should be entitled to protection.

When does student speech invade the rights of others? The seminal Supreme Court student-speech decision is the black-armband decision of Tinker v. Des Moines Independent Community School District (1969). In Tinker, the Court established a standard for protecting speech commonly known as the “substantial disruption” standard – that school officials could punish student speech only if they could reasonably forecast that the speech would cause a substantial disruption or material interference with school activities. But an often-overlooked part of Tinker said school officials could prohibit student speech that invades the rights of others. The Court has never explained this part of Tinker, leaving some lower courts to ignore it. It remains an open question — made all the more important by the fight against cyberbullying.

Are “I Love Boobie Bracelets” the modern black armband? The student-speech case I’m watching most closely is one pending before the 3rd U.S. Circuit Court of Appeals — B.H. v. Easton Area School District. It involved middle school officials who prohibited two middle school girls from wearing breast-cancer awareness bracelets because they included the allegedly offensive word “boobies.” Boobie-bracelet cases have cropped up across the country. School officials claim the bracelets are substantially disruptive under Tinker and also are vulgar and lewd under the 1986 Supreme Court decision Bethel School District v. Fraser.

What constitutes a true threat? I’ve written that “true-threat doctrine remains a muddled mess.” That statement still holds true, particularly in the public school context, where any violent-themed student writing may subject a student to punishment, psychological examination or other repercussions. School officials obviously wish to prevent future school shootings. One would hope that school officials will not punish any student who thinks differently or looks different. They should focus on students who pose a real threat or show signs of true mental disturbances. But just because a student writes about violent themes, it doesn’t mean he or she is signaling a true threat.

David L. Hudson Jr. is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools.

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