Margaret A. Skelton

Transcription

1 Margaret A. Skelton

2 What First Amendment Right to Freedom of Speech Do Students Have? Is the speech protected under the First Amendment? Is the speech likely to, or did it actually cause a disruption of or material interference with school activities or invasion of rights of others? Tinker v. Des Moines Independent Comm. School District

3 STUDENTS FIRST AMENDMENT SPEECH RIGHTS Schools may discipline students for speech including speech that would otherwise be constitutionally protected if the speech is vulgar, offensive, or obscene, or if it promotes activities or products which are illegal for minors. A school s actions must be reasonably related to a legitimate pedagogical concern. Bethel School District v. Fraser

4 What First Amendment Rights do Students have? School Sponsored Speech Educators are entitled to exercise greater control Hazelwood Sch. Dist. v. Kuhlmeier

5 What First Amendment Rights do Students have? Promotion of Drug Use Morse v. Frederick, 127 S.Ct (2007).

6 SOCIAL MEDIA AND CELL PHONES, SPEECH IN THE TWENTY-FIRST CENTURY Off-Campus Speech, Including Internet Speech May be Protected by the First Amendment Schools May Discipline for Speech that Causes Substantial Disruption. R.S. v. Minnewaska Area School District No Kowalski v. Berkeley County Schools

7 SOCIAL MEDIA AND CELL PHONES, SPEECH IN THE TWENTY-FIRST CENTURY A School Can Discipline for True Threats Be Careful of Discipline of Students for Internet Speech Criticizing School Employees

8 COMMENTS TO TEACHER Corlett v. Oakland University Board of Trustees, 2013 WL (E.D. Mich. 2013).

9 VIOLATION OF ACADEMIC RULES Tatro v. University of Minnesota

10 PRACTICAL STEPS FOR ADDRESSING STUDENTS INAPPROPRIATE OFF-CAMPUS SPEECH If Possible, Discipline for Conduct, Not Speech Report Abusive or Offensive Speech to Social Media Websites Notify Parents

11 PRACTICAL STEPS FOR ADDRESSING STUDENTS INAPPROPRIATE OFF-CAMPUS SPEECH Be Proactive Don t Overreact May need to seek legal Counsel

12 IS STUDENT DRESS FIRST AMENDMENT SPEECH? General Rule 1. The actor dresses with the intent to convey a particularized message ; and 2. There is a strong likelihood that the message would be understood by its viewers.

13 BREAST CANCER AWARENESS BRACELETS CONFLICTING CASE LAW

14 CONFEDERATE FLAG CLOTHING Discipline for wearing a confederate flag has been upheld there was evidence of material disruption due to racial tension

15 IS STUDENT DRESS FIRST AMENDMENT SPEECH? Sports Jerseys Religious Clothing and Messages

16 STUDENTS FIRST AMENDMENT RELIGION RIGHTS The school districts may not take action that: has a religious purpose; has the primary effect of either advancing or inhibiting religion; creates an excessive entanglement between church and state.

17 STUDENTS FIRST AMENDMENT RELIGION RIGHTS The Free Exercise of Religion A school district violates the Free Exercise Clause if it requires a student to do the following: to perform an act that violates the student s sincerely held religious beliefs; or to forego a benefit bestowed by the government because of his or her religious belief

18 BALANCING ACT

19 STUDENTS FIRST AMENDMENT RELIGION RIGHTS Accommodating Religious Observances Excusal to Observe Religious Holidays Release Time for Religious Instruction

20 Student Prayer During School Hours Student Initiated Prayer District Initiated or Sponsored Prayer Providing a Place to Pray Moment of Silence

21 THE PLEDGE OF ALLEGIANCE Minnesota law generally requires all public schools to conduct the Pledge of Allegiance at least once a week Requirement may be waived with adoption of separate policy regarding the recitation of the Pledge of Allegiance

22 THE PLEDGE OF ALLEGIANCE: Minnesota Law Students and teachers may decline from participating in the Pledge of Allegiance Student handbooks must include a statement that anyone who does not wish to participate in the Pledge of Allegiance for any personal reasons may elect not to do so and that students must respect another person s right to make that choice

23 THE PLEDGE OF ALLEGIANCE Legal Challenges that the Pledge of Allegiance violated the Establishment Clause

24 Ratwik, Roszak & Maloney, P.A. 300 U.S. Trust Building 730 Second Avenue South Minneapolis, Minnesota (612) Fax (612) FACEBOOK, PRAYER AND THE PLEDGE OF ALLEGIANCE: THE FIRST AMENDMENT AND PUBLIC SCHOOL STUDENTS Margaret A. Skelton MSBA 93 rd Annual Leadership Conference January 17, 2014 I. STUDENTS FIRST AMENDMENT SPEECH RIGHTS A. What First Amendment Right to Freedom of Speech do Students Have? Whether student speech can be restricted depends on an analysis of the following factors: (1) Whether the speech will lead to a substantial disruption of or material interference with school activities (2) Whether the speech is lewd, vulgar, offensive, or obscene; (3) Whether the speech is school sponsored; and (4) Whether it promotes a controlled substance or illegal activity. B. Material/Substantial Disruption or Invasion of Rights of Others - Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503 NOTE: The purpose of this presentation, and the accompanying materials, is to inform you of interesting and important legal developments. While current as of the date of presentation, the information given today may be superseded by court decisions and legislative amendments. We cannot render legal advice without an awareness and analysis of the facts of a particular situation. If you have questions about the application of concepts discussed in the presentation or addressed in this outline, you should consult your legal counsel. 2013

25 (1969). In Tinker, the U.S. Supreme Court struck down a school rule that prohibited students from wearing black armbands in a silent protest of the Vietnam War. The Court first found that the wearing of the armbands constituted a particularized message that was understood by those who viewed it, thus, it constituted speech. The Court concluded that by wearing the armbands, the students engaged in a form of constitutionally protected speech, even though it was symbolic, under the First Amendment of the U.S. Constitution. When making its ruling the Tinker Court considered two things: 1. Is the speech protected under the First Amendment? With regard to this question, courts consider whether the student intended to convey a particularized message and whether there is a reasonable likelihood that those who viewed it would understand the message. If so, the speech is entitled to constitutional protection. 2. Is the speech likely to, or did it actually cause a disruption of or material interference with school activities or invasion of rights of others? If so, public schools may impose restrictions on the student speech. C. Plainly Offensive Speech - Bethel School District v. Fraser, 478 U.S. 675 (1986). In Bethel Sch. Dist. v. Fraser, school officials suspended a student for delivering a speech at a school assembly that was filled with sexually explicit metaphors. Reasoning that the freedom of students to express unpopular and controversial views in schools must be weighed against society s interest in teaching students the boundaries of socially appropriate behavior, the Court set the following standard: 1. Schools may regulate and discipline students for speech including speech that would otherwise be constitutionally protected if the speech is vulgar, offensive, or obscene, or if it promotes activities or products which are illegal for minors. 2. A school s actions in this regard must be reasonably related to a legitimate pedagogical concern. D. School Sponsored Speech - Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). In the Hazelwood case, the United States Supreme Court held that educators are entitled to exercise greater control over student speech 2

26 that is directly sponsored by the school district. Specifically, schools can regulate speech to: 1. Assure that participants learn whatever lessons the activity is designed to teach; 2. Ensure that readers or listeners are not exposed to material that may be inappropriate for their level of maturity; 3. Make clear that the views of the individual speaker are not erroneously attributed to the school. Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play disassociate itself not only from speech that would substantially interfere with its work or impinge upon the rights of other students, but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudice, vulgar or profane, or unsuitable for immature audiences. Hazelwood, supra. E. Promotion of Drug Use - Morse v. Frederick, 127 S.Ct (2007). The school principal at Juneau-Douglas High School decided to let staff and students watch the Olympic Torch Relay as it passed by the school. As the torchbearers and media passed by the school, Frederick and his friends unfurled a large banner that had the phrase BONG HiTS 4 JESUS written in large letters on it. The large banner was easily readable by the students on the other side of the street. The principal immediately ran over to the group holding up the banner and demanded that it be taken down. Everyone but Frederick agreed to take down the banner. Frederick was suspended for 10 days. The school principal s justification for the suspension was that the school board specifically prohibits any assembly or public expression that advocates the use of substances that are illegal to minors. After being suspended Frederick filed a lawsuit alleging that the school board and the principal had violated his First Amendment right of free speech. The question the Court needed to decide in this case was whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. The Supreme Court stated that deterring drug use by schoolchildren in an important-indeed, perhaps compelling interest. The Court went on to state 3

27 that drug abuse can cause severe and permanent damage to the health and well-being of young people. Therefore, the court concluded that the school officials did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. II. Social Media and Cell Phones, Speech in the Twenty-First Century A. Off-Campus Speech, Including Internet Speech May be Protected by the First Amendment The constitutional provisions discussed above apply to student speech whether it is verbal communication or cyber e-speech. However, if the student has only engaged in internet speech created and accessed offcampus, the latitude allowed for discipline and regulation is narrow. B. Disciplining Students for Internet Speech In general, a district has the power to discipline students for off-campus misconduct only if the misconduct is a continuation of or has a nexus with improper conduct that occurred on school grounds, or the student s actions have a direct and immediate effect either on school discipline or on the general safety and welfare of students. In re Expulsion of Z.K. and S.K., 695 N.W.2d 656 (Minn. App. 2005). Although this encompasses a great deal of student actions, it is not unlimited. Prior to taking action against a student for off-campus, online activities, a school must make sure the student s action has the necessary nexus. Courts have used the substantial disruption and true threat tests when determining whether a school district has a sufficient nexus to discipline students for speech occurring out of school, including internet speech. 1. Substantial Disruption. Courts are likely to uphold discipline for off-campus, e-speech activities if the school district can show that it was at least reasonably likely that the student s conduct would substantially disrupt school or infringe on the rights of others. a. R.S. v. Minnewaska Area School District No. 2149, 2012 WL (D.Minn. 2012). In this case, a twelve-year-old student was disciplined for two postings that she had made on her Facebook wall. On her wall, she posted about a school hall monitor: I hate a Kathy person at school because Kathy was mean to me. This was done at home and her privacy settings only allowed friends to see the post. The message 4

28 was recorded by a friend and got back to the principal, who gave the student detention and required her to apologize to the hall monitor. The student went home and posted another comment on her wall: I want to know who the f%s# told on me. After learning about this message, the principal gave her a one-day suspension and prohibited her from attending a school trip. In this case, the Minnesota District Court held that there was no true threat by the student s comments, and that her out-ofschool statements were not likely to cause a substantial disruption to the school. b. Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011). A student created a MySpace group called S.A.S.H. or Students Against Sluts Herpes from her off-campus computer. The content of the group was directed primarily at another student. Many other students participated in the group, posted pictures of the subject of the group, and made derogatory comments about her. In this case, the court held that given the targeted, defamatory speech of the student who created the group, which was aimed at a fellow classmate, the conduct created substantial disorder and disruption in the school justifying disciplinary action against the student. 2. True Threat. True threats of serious physical harm are not protected by the First Amendment. Although speech may be unsavory or mean-spirited, this is not enough to be considered a true threat to a student or school employee. a. D.J.M. v. Hannibal Public Sch. Dist., 647 F.3d 754 (8th Cir. 2011). In this case, a student sent online instant messages from his home saying he had access to a gun and would shoot everyone at the school; he named five specific students he would have to get rid of; he outlined other individual students who were members of groups he did not like, and stated he wanted Hannibal to be known for something. The district forwarded the threats to police, who arrested the student. After the arrest, the district received a number of phone calls from parents that caused a disruption, and ultimately suspended the student. 5

29 The court upheld the discipline under the true threat test, finding that a reasonable recipient of his messages would have interpreted the student s statements as a serious expression of intent to harm or cause injury to another person. and that he intended to convey the messages to his classmate. b. Mahaffey v. Aldrich, 236 F.Supp.2d 779 (E.D.Mich. 2002). The student created a website entitled Satan s web page. The page listed people I wish would die. The school suspended the student. The court ruled the discipline violated the student s free speech rights because the website did not contain any true threats and did not cause a substantial disruption. The list of people he wanted to die were not threatened with death any more than people he listed as cool were made cool by his statements. 3. Questions to ask When Considering Disciplining Students for Internet Speech a. Does the speech have a nexus with the school? b. Where did the student create or access the Internet Speech? c. Does the website or online content materially and substantially interfere with the operation of the school? Specifically, consider the following questions: (i) (ii) (iii) (iv) (v) Did the student seriously encourage other students to violate laws or school rules? Is there a specific and significant fear of disruption, not merely some remote apprehension of disturbance? Is the fear of disruption more significant than a mere fear of discomfort and unpleasantness from an unsavory viewpoint? Is the disruption merely hurt feelings? Were teachers unable to control or teach their classes for a significant period of time? d. Does the website or online content constitute a true threat? 6

30 (i) (ii) (iii) (iv) (v) Was there a direct threat of physical violence to students or staff? What was the reaction of those who heard the threat? Did the person who made the threat communicate it directly to the person who was the object of the threat? Did the speaker have a history of making threats against the threatened person? Did the threatened person have a reason to believe that the speaker had a propensity to engage in violence? C. Specific Issues 1. Internet Speech Criticizing School Employees a. Roasio v. Clark County School District, 2013 WL (D. Nev. 2013) (Slip Copy). In this case, a high school student tweeted a number of inappropriate and offensive messages about school staff. The messages included profanity, racial epithets, and complaints about snitches who had previously reported the student s behavior to school staff. The student posted these messages using his own phone, after a basketball game, while at a restaurant with his parents. The school district learned about the tweets when another student viewed them online and then reported them to the principal. The school district initially disciplined the student, but later rescinded the discipline and transferred him to another high school within its boundaries. The student sued alleging, among other claims, violations of his First Amendment free speech rights. The court refused to dismiss the student s First Amendment claims, with the exception of one message that the court concluded was obscene under the specific legal definition of obscenity. The court found that the school had not alleged that the messages disrupted the school environment, and, 7

31 therefore, it lacked the authority to discipline the student for his off-campus speech. b. Bell v. Itawamba County School Board, 859 F.Supp.2d 834 (N.D. Miss. 2012). In this case, the school district disciplined a student for posting a video of himself on Facebook.com and Youtube.com. In the video, the student sang a rap song that alleged two coaches in the high school had improper conduct with female students. The song contains multiple profanities, alleges that one of the coaches is cheating on his wife, calls him a pervert, compares him to a former coach who had been fired due to allegations of inappropriate contact with students, suggests that, if the coach messes with the wrong female student, he will get a pistol down your mouth and urges students to put their middle fingers up if they can t stand the coach or want to cap [kill] the coach. Applying the Tinker substantial disruption standard, the court upheld the discipline and dismissed the case. Specifically, the court found that the video had caused actual disruption because the coach had first learned about the video from his wife, several students had seen the video, the coach felt threatened by the video, and the coach testified that his teaching style had been adversely affected by the video and fears that other students suspected him of inappropriate behavior. The court also found that it was reasonably foreseeable that the song would cause disruption because it alleged various types of sexual misconduct against a school official, was viewable by the student s 1300 or so Facebook friends, and was accessible to the public at large on Youtube.com. c. J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011). In the J.S. case a middle school student created a fake MySpace page for the principal of the middle school. On the profile, the student included many obscene statements, including that the principal engaged in sexual relations with students in his office and was a sex addict and pedophile. The student had also copied the principal s photograph from the district s website and put it on the MySpace page. After the principal discovered the profile page from another student at the school, he suspended the student from school for ten 8

32 days. The student then filed suit against the district claiming that her First Amendment rights had been violated. The Third Circuit held that the school district had violated the student s First Amendment free speech rights when it suspended her for creating the Internet profile. The court relied heavily on the fact that the district admitted that the profile had not caused a disruption at school, that the student did not intend for the speech to reach the school, and that she had taken specific steps to make the profile private so that only her friends could access it. d. Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011). A student in this companion case similarly created a MySpace page at home about a principal that contained lewd and inappropriate statements. The court similarly held that the school district did not have the authority to punish the student for his expressive conduct outside of school and said that there was not a sufficient nexus between the school and the Internet profile. That court relied heavily on the fact that the district did not allege that this action had caused a disruption at school. The court further held that there was no nexus to school simply because the profile was later accessed at school. e. Evans v. Bayer, 684 F.Supp.2d 1365 (S.D. Fla. 2010). A federal district court in Florida addressed discipline against a student who created a Facebook group entitled Ms. Sarah Phelps is the worst teacher I ve ever met. The purpose of this group was to allow students to express dislike for a particular teacher. After learning of the page, the school suspended the student for three days and forced her to change certain classes. The court held that the suspension was improper. The court noted that the speech was made offcampus, never accessed on-campus, and removed two days after it was created. The court rejected the district s argument that is could regulate the student s speech based on a reasonable expectation of disruption, noting the pleadings contained no such evidence. 2. Comments About Staff. Corlett v. Oakland University Board of Trustees, 2013 WL (E.D. Mich. 2013). This case involved the content of a 56 year old college student s writer s daybook 9

33 assignment in writing class. In addition to some required material, students were supposed to use the daybook to try out ideas and record impressions or observations. The plaintiff wrote two entries in the daybook entitled Hot for Teacher commenting on her physical appearance and comparing her to Ginger, a character from Gilligan s Island, and stating he was a Ginger man. Once the professor became of the daybook entries, she asked the dean to remove him from class. The dean offered a full refund, but the student nevertheless sued, claiming that the discipline violated his First Amendment rights. The court found that the student s expressions of lust or descriptions of the teacher were not entitled to First Amendment protection. Likening the university to a public school district, the court then held that the university reasonably could have found [the plaintiff s] writings inappropriate from a student to a teacher and punished him accordingly. 3. Violation of Academic Rules. Tatro v. University of Minnesota, -- N.W.2d --, 2012 WL (Minn. 2012). The University of Minnesota disciplined a student in its Mortuary Science Program after she made several comments on Facebook related to her experience as a student. The student made posts on Facebook in which she referred to a cadaver on which she was training as Bernie and made comments about taking out aggression on cadavers. The Minnesota Supreme Court ruled the discipline did not violate the student s First Amendment rights because the Facebook posts violated academic program rules that were narrowly tailored and directly related to established professional conduct standards. - School districts should not rely on the Tatro case for the proposition that all speech which violates campus rules is grounds for discipline. That being said, the case is particularly useful if the discipline in question is removal from student office, a sports team, or some other optional program with its own set of academic codes and rules. D. Practical Steps for Addressing Students Inappropriate Off-Campus Speech 1. If Possible, Discipline for Conduct, not Speech 10

34 a. Lack v. Kersey, et al., 2012 WL (N.D. Ga. 2012). In this case, a school district removed the plaintiff as the student body president. The plaintiff claimed that he was removed from that office because of: (1) a Facebook message he sent to another student; (2) a speech he gave to the incoming freshman class; and (3) his support of a gay couple as prom king and queen. The court found that each of these areas involved speech that was protected by the First Amendment, that the district s decision to remove the class president was partially based on its objection to the content of his speech, and that there was no disruption, threatened disruption, or other grounds on which the school district could discipline the student for his speech on these topics Nevertheless, the court upheld the discipline and refused to grant the student a temporary injunction to return him to his class presidency office. The basis for the court s ruling was that the district could have taken the same action regardless of the student s protected speech. The district had prepared twenty reasons why it was removing the student from class office. In addition to the speech, the list contained such topics as: (1) the student s failure to attend various activities that class officers were required to attend (spirit week, homecoming decoration day); (2) rescheduling meetings despite a teacher s direction not to do so; and (3) general leadership style (students described the student council as a dictatorship under the class president). Quoting an eighth circuit decision, the court held that discipline, courtesy, and respect for authority are legitimate pedagogical concerns that supported the discipline, regardless of the protected speech. b. Requa v. Kent Sch. Dist. No. 415, 492 F.Supp.2d 1272 (W.D.Wash. 2007). A high school senior took video footage on two occasions of his teacher. The videos were edited together and graphics and a sound track were added to the video. The video was posted on YouTube and the student s MySpace page. The video contained comments on the teacher s hygiene, included footage of students standing behind the teacher making faces, included an announcement Caution Booty Ahead, and contained several shots of the teacher s buttocks. The school suspended the students for taping the teacher in school in violation of school policy, not for posting the YouTube video. 11

35 One of the students filed a motion for a preliminary injunction seeking the court to order the district to lift the suspension previously imposed. All parties agreed that the student s posting of YouTube was protected speech. The court denied the motion and agreed with the school district that the student was suspended not for his posting of the video, but for his conduct in violating school policy by secretly taping his teacher in class activities. 2. Report Abusive or Offensive Speech to Social Media Websites. Most social medial sites have terms of use that prohibit certain types of activity (harassing comments, pornographic images, etc.). Each social media site has its own ways of reporting content that violates these terms of use, and they are often willing to remove such content in a reasonably quick fashion. If the school plans to take disciplinary action against a student for his or her social media activities, however, the school should keep a printout of the activity before having it deleted by the social media company. 3. Notify Parents. Keeping parents informed as to disciplinary policies and the potential ramifications of their children s online conduct is one way to reduce the potential for litigation. Of course, if the conduct in question constitutes a true threat, such a warning may not be desirable or even appropriate at all. - Conversations with parents must conform to the Minnesota Government Data Practices Act ( MGDPA ) and the United States Family Educational Rights and Privacy Act ( FERPA ). 4. Be Proactive. Anti-bullying policies and programs should include cyberbullying and other electronic speech concerns. Such materials should expressly prohibit threatening and disruptive speech, whatever the medium. 5. Do Not Overreact. Just because the off-campus speech is offensive does not mean that it is legal basis for student discipline. Discipline will likely be reversed if there is no connection between the misconduct and school. Likewise, discipline for social media or other electronic speech occurring off campus will likely be reversed if there is no true threat or reasonable likelihood that the speech will create a substantial or material disruption to school. Take time 12

36 to consider whether these factors have been met before imposing discipline. - If a student s electronic speech is viewed as a true threat, the school should take any appropriate action, including immediate disciplinary action or law enforcement involvement, to respond to that threat. 6. Contact Legal Counsel. The law of student speech continues to evolve, particularly in the context of electronic or internet speech. Schools that violate that First Amendment by improperly disciplining students for their speech face stiff civil penalties, including injunctions, damages awards, and awards of attorneys fees. Alternatively, failure to take appropriate action for bullying or harassment could also lead to liability. It is best to be cautious and consult the district s legal counsel if you have any questions as to the district s ability to take action against a student for his or her speech. III. Is Student Dress First Amendment Speech? Not all dress and grooming activities rise to the level of protected speech. See Bishop v. Colaw, 450 F.2d 1069, 1074 (8th Cir. 1971) (holding that student s haircut was not expressive speech when not intended to symbolize viewpoint). A. General Rule. Dress usually will be considered expressive conduct, a form of protected speech, if 1. The actor dresses with the intent to convey a particularized message ; and 2. There is a strong likelihood that the message would be understood by its viewers. See Spence v. Washington, 418 U.S. 405, (1974); see also Baribeau v. City of Minneapolis, 596 F.3d 465, 475 (8th Cir. 2006). B. Clothing with Written Messages. Words or images printed on students clothing may be considered a form of protected speech. See, e.g., Chambers v. Babbit & Indep. Sch. Dist. No. 833, 145 F.Supp. 2d 1068 (D. Minn. 2001). 13

37 C. Threatening Messages. Threats of violence are not protected by the First Amendment. Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002). In order for a threat to be excluded from the First Amendment, however it must be a true threat. D.J.M. ex rel. D.M. v. Hannibal Public Sch. Dist. No. 60, 647 F.3d 754, (8th Cir. 2011). A true threat is a statement which a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another. Id. (quoting Pulaski, 306 F.3d at 624). In order for a statement to meet this description, it must have been communicated to the threatened person or to a third party. Id. D. Body Piercings. Courts have generally found that body piercings do not rise to the level of protected speech because they do not contain a particularized message. Bar-Navon v. Brevard County Sch. Bd., 290 Fed. Appx. 273, (11th Cir. 2008) (unpublished); see also Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381 (6th Cir. 2005). E. Tattoos. Tattoos may rise to the level of protected speech if they include a particularized message. Tattoos which are nothing more than selfexpression are not entitled to First Amendment protection. Stephenson v. Davenport Community Sch. Dist., 110 F.3d 1303, 1307 n. 4 (8th Cir. 1997); see also Yurkew v. Sinclair, 495 F.Supp. 1248, 1253 (D. Minn. 1980) (holding that the act of tattooing is not protected speech). F. Breast Cancer Awareness Bracelets. There have been conflicting cases involving bracelets containing the message I <heart> boobies, a bracelet that is produced and distributed by the Keep A Breast foundation, a widely respected breast cancer awareness charity. 1. H. v. Easton Area Sch. Dist., 827 F.Supp. 2d 392 (E.D. Pa. 2011). The Easton case held that a school district could not prohibit high school students from wearing bracelets with the message I <heart> boobies (Keep A Breast). The Easton case considered a number of factors reaching in reaching this decision. First, the court found that the word boob or boobies was not inherently vulgar. Other than breasts, the word refers to, among others, a type of bird or a person of below average intelligence (synonym for nincompoop). Next, the court found that the word boobies was not offensive in the context it was used, even though it was used to refer to women s breasts. The court s decision focused on the fact that the word was 14

38 used in a legitimate, nationally recognized, breast cancer awareness campaign and targeted at high school aged girls. This conclusion was based largely on the fact that the bracelet also had the name of the Keep A Breast Foundation on it. The court also noted that the school could not have found the language too offensive because it republished the I <heart> boobies message in its messages about the bracelet. The court also recognized that the girls who wore the bracelets intended to spread a breast cancer awareness message. The Third Circuit Court of Appeals affirmed the Easton decision on August 5, In reaching its conclusion, the Third Circuit determined that schools could prohibit plainly lewd speech, regardless of its content, but that school districts could not prohibit inappropriate speech that is not plainly lewd, if the speech could not also plausibly be interpreted as commenting on a political or social issue. The court found that the word boobies was not plainly lewd and that the bracelets were speech on a social issue. Therefore, it decided that the district could not ban the bracelets. 2. J.A. v. Fort Wayne Community Schools, 2013 WL (N.D. Ind. 2013). The J.A. case also involved high school students who wore the Keep A Breast Foundations I [Heart] Boobies bracelets to school. The J.A. court analyzed the Third Circuit s Easton decision and rejected its statutory analysis. Instead, the court determined that the school board, not a court, has the primary responsibility to determine what speech to permit in its schools. Applying this principle, the court deferred to the school district s determination that the word boobies was lewd or vulgar. Because it determined that the word boobies was reasonably construed as vulgar, the court upheld the school district s ban on the I [Heart] Boobies bracelet. In so doing, it specifically referenced the Fraser standard that allows schools to take into consideration students maturity level. The court found that the evidence in the record reveals a low maturity level at the school in question. 3. K.J. v. Sauk Prairie School District, et al., 2012 U.S. Dist. LEXIS (W.D. Wis. 2012). This case involved a middle school student s challenge to a school district s decision to ban the I [Heart] Boobies bracelet. The plaintiff asserted that she wanted to wear the bracelet to promote breast cancer awareness and sought an injunction to prevent the school from enforcing its ban. The school 15

39 district banned the Keep A Breast Foundation bracelet at the middle school, but not at the high school. The district also produced and marketed its own bracelets with the slogan Sauk Prairie Eagles support breast cancer awareness. Like the other two cases, there was no indication that the bracelets caused any disruption to the school. Instead, the school s only argument in favor of banning the bracelet was that it was lewd or vulgar speech that is not protected under the First Amendment. Like the J.A. court, the Wisconsin District Court deferred to the school district s determination that the word boobies was vulgar. Specifically, it held that school officials violate the First Amendment by prohibiting expression that they determine is lewd or vulgar only if their determination is unreasonable. Applying that standard, the court concluded that the school district s characterization of the word boobies as vulgar was reasonable. G. Confederate Flag Clothing. Findings in cases involving students who wear confederate flags on their clothing vary based on the fact pattern involved in each case. 1. Hardwick v. Heyward, 2012 WL (D. S.C. 2012). The plaintiff in this case was a middle school student who alleged that the school district violated her right to free speech (among other rights) by prohibiting her from wearing multiple shirts that depicted the confederate flag. Between 2003 and February 2004, the student was asked, on four separate occasions, to cover up or remove shirts with a depiction of the confederate flag. The student was also asked to remove protest shirts which criticized restrictions on the display of the confederate flag. One day in May 2005, the student wore a series of protest shirts at school; changing from one to another. Based on the facts of the case, the court held that the school had a reasonable fear that shirts bearing the confederate flag would lead to a substantial and material disruption of school activities. With respect to the protest shirt, that did not depict the confederate flag, but instead commented that the American flag flew over legalized slavery for 90 years, the court found that it was plainly offensive as glorifying or endorsing slavery. The court also found that the district had a reasonable fear that the shirt would disrupt school activities. The court dismissed the plaintiffs claims, allowing the school discipline to stand. 16

40 2. Castorina v. Madison County Sch. Bd., 246 F.3d 536 (6th Cir. 2001). In this case, two students were suspended for refusing to remove t- shirts that displayed the confederate flag. The school policy prohibited clothing that contained racist implications. In the same district, students were allowed to wear Malcolm X t-shirts without facing discipline. The court first found that the t-shirts were intended to convey a message of pride in the students southern heritage and that message was understood, so the conduct was considered speech. The court held that the district s uneven enforcement of the policy was a targeted ban, and therefore prohibited viewpoint discrimination. The court stated that the Tinker standard was appropriate, and remanded the case for findings on whether there was evidence of a material disruption at the school that would justify the restriction on speech. 3. Discipline for wearing a confederate flag has been upheld in other cases where there was evidence of material disruption due to racism issues. See West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000) (where there was a history of fights involving racial symbols in the district); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972) (where it had already been determined that the confederate flag was a symbol that caused unrest in the school). H. Sports Jerseys. Sonkowsky v. Bd. of Educ. for I.S.D. No. 721, 2002 WL (D. Minn. April 8, 2002). Rocky, a fourth grade student, was an avid Green Bay Packers fan who routinely wore Packers attire to school. The student s father alleged that Rocky s rights were deprived when: (1) the teacher would not display Rocky s homework after Rocky colored a picture of a football player green and gold despite instructions to color it purple and gold; (2) Rocky was told to cover his Packers jersey for a photo after the class won the GridIron Geography Bulletin Board Contest prizes that included a trip to the Viking s practice facility and a lunch with Chris Carter; (3) Rocky was allegedly told he could not participate in the Holiday Lights Parade if he wore his Packers jacket; and (4) Rocky was not allowed to attend the class field trip to the Vikings practice facility. The court ruled in favor of the school district. The court explained that a school need not tolerate student speech that is inconsistent with its basic educational mission. Although elementary school students have some First Amendment rights, they do not have the same free expression rights as college or even high school students. The court explained that Rocky was allowed to wear Packers clothing at school at all times except during the contest photo session. Furthermore, there is no constitutional right for a 17

41 nine-year-old to wear a Green Bay Packers jersey to school. Even if all of his allegations were presumed true, none of the allegations meaningfully affected Rocky s education as to invoke a constitutionally protected right. Finally, Rocky s education was unaffected by the school s actions. I. Religious Clothing and Messages. Clothing bearing religious messages almost always falls into the category of speech that is protected by the First Amendment. Accordingly, school districts must take care when prohibiting students from wearing such clothing. 1. Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006). The school district allowed students to hold a Day of Silence sponsored by a student group in order to teach tolerance, including tolerancfe of sexual orientation. In response, a student wore a shirt to school bearing the following handwritten message on the front: I will not accept what God has condemned. The back of the shirt stated: Homosexuality is shameful Romans 1:27. School staff did not see the student in the shirt. The next day, the student wore a shirt to school with the same message on the back and the following message on the front: Be ashamed, our school embraced what God has condemned. A teacher asked the student to remove the shirt. The student refused and asked to talk to the principal. The principal told the student that if he did not remove the shirt or turn it inside out, he would have to spend the rest of the day in the office. The principal did not suspend the student, despite the student s repeated requests to be suspended. The court denied the student s request for an injunction because the student was unlikely to succeed on the merits of his First Amendment case. More specifically, the court held as follows: (1) In addition to prohibiting speech that creates a material or substantial disruption, a school district may prohibit speech that intrudes upon the rights of other students. (2) Injurious speech that may be so limited is not immune from regulation simply because it reflects the speaker s religious views. Id. at

42 (3) Students have the right to be free from derogatory and injurious remarks directed at [their] minority status such as race, religion, and sexual orientation. (4) A school need not tolerate student speech that is inconsistent with its basic educational mission. 2. Nixon v. Northern Local School District Board of Education, 383 F.Supp.2d 965 (S.D. Ohio 2005) The school district prohibited a student from wearing a t-shirt with the message Homosexuality is a sin! The district disciplined the student when he refused to remove the t-shirt. The federal district court of Ohio granted the request for an injunction on the ground that the school district was unable to produce any evidence showing that the speech created a material or substantial disruption; that it invaded the rights of others. IV. STUDENTS FIRST AMENDMENT RELIGION RIGHTS A. Legal Standard. The First Amendment to the United States Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 1. The Establishment of Religion. The Establishment Clause of the First Amendment to the United States Constitution prohibits the government from establishing religion. Public school districts are local government units. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the United States Supreme Court established a three-prong test for determining whether a practice or policy violates the Establishment Clause. Under this test, which is commonly referred to as the Lemon test, school districts may not take any action that: a. has a religious purpose; b. has the primary effect of either advancing or inhibiting religion; or c. creates an excessive entanglement between church and state. 19

43 The United States Supreme Court has found that following activities advance a particular religious belief in violation of the Establishment Clause: o Requiring teachers to read Bible verses to students. School District of Abington Tp., Pa. v. Schempp, 374 U.S. 203 (1963); o Using an official prayer at school district sponsored events. Engel v. Vitale, 370 U.S. 421 (1962); and o Requiring schools to post copies of the Ten Commandments in classrooms. Stone v. Graham, 449 U.S. 39 (1980). 2. The Free Exercise of Religion. The Free Exercise Clause of the First Amendment prohibits the government from interfering with the free exercise of religion. A school district violates the Free Exercise Clause if it requires a student to do the following: a. to perform an act that violates the student s sincerely held religious beliefs; or b. to forego a benefit bestowed by the government because of his her or religious beliefs. See Mozert v. Hawkins County Bd. of Ed., 827 F.2d 1058 (6 th Cir. 1987). 3. Freedom of Speech. Questions about students religious beliefs often implicate the Freedom of Speech clause of the First Amendment as well. School districts must be mindful of students speech rights, as well as their Free Exercise rights when they prohibit students from, or discipline students for, engaging in religious themed speech. 4. Balancing Act. School districts are required to follow both religion clauses of the First Amendment. That is to say, on the one hand, they cannot take action or make a decision that advances or inhibits a religion. On the other hand, school districts may not prohibit a student s free exercise of religion or violate students freedom of speech rights. Finding the right balance is often difficult, especially when schools are under a microscope from parents, 20

44 community members, the media, and numerous special interest groups on either side of any given religious issue. B. Accommodating Religious Observances 1. Excusal to Observe Religious Holidays. Minnesota law states: Reasonable efforts must be made by a school district to accommodate any pupil who wishes to be excused from a curricular activity for a religious observance. Minn. Stat. 120A.35. School calendars typically do not require students to attend school on many Christian religious holidays, such as Good Friday, Easter, or Christmas. Classes are typically in session on other Christian holidays, such as Ash Wednesday and All Saints Day. Classes are also scheduled on holidays sacred to other religions. 2. Release Time for Religious Instruction. Courts outside of Minnesota have held that releasing students during school hours to attend religious classes or conduct private prayer outside of school does not violate either the Establishment Clause or the Free Exercise Clause of the First Amendment, even though, as a practical matter, such accommodations may promote religion. a. Minnesota Law. The Compulsory Attendance Law, Minnesota Statutes section 120A.22, states: The board of the district in which the child resides may approve the application upon the following being demonstrated to the satisfaction of that board:... that it is the wish of the parent, guardian, or other person having control of the child, that the child attend for a period or periods not exceeding in the aggregate three hours in any week, a school for religious instruction conducted and maintained by some church, or association of churches, or any Sunday school association incorporated under the laws of this state, or any auxiliary thereof. This school for religious instruction must be conducted and maintained in a place other than a public school building, and it must not, in whole or in part, be conducted and maintained at public expense. However, a child may be absent from school on such days as the child attends upon instruction according to the ordinances of some church. 21

45 b. Pierce v. Sullivan West Central School District, 379 F.3d 56 (2nd Cir. 2004). In this case, parents challenged a school district s policy that allowed students to be released from school for religious instruction. The parents alleged that the law violated the Establishment Clause. The school district in question, allowed students to be released for one hour each day to receive religious instruction at local churches. Students who did not opt to attend religious instruction were permitted to attend a one-hour study hall instead. Citing an earlier United States Supreme Court that affirmed the law under which the policy was enacted, the court held that the law did not advance any particular religious belief or religion in general. Therefore, the court held that this release time program did not violate the Establishment Clause. It is important to note that an earlier United States Supreme Court case stands for the proposition that allowing religious instructors to come into the school during such a release time, or otherwise spending taxpayer money on religious instruction, does violate the Establishment Clause. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign City, 333 U.S. 203 (1948) C. Student Prayer During School Hours 1. Student Initiated Prayer. The U.S. Supreme Court has stated that nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). Thus, a student may engage in unobtrusive private prayer. See Goluba v. School District of Ripon, 45 F.3d 1035 (7th Cir. 1995). 2. District Initiated or Sponsored Prayer. The U.S. Supreme Court has held that a school district violates the Constitution by organizing or sponsoring prayer at a school event, regardless of whether the prayer is student-initiated or led by a person at the district s request. See Santa Fe Independent School District v. Doe, 530 U.S. 290, 313 (2000) (holding that the religious liberty protected by the Constitution is abridged when the State [or its political subdivisions] affirmatively sponsors the particular religious practice of prayer. ). 22