NO J.L., On Appeal From the Supreme Court of New Columbia BRIEF FOR PETITIONER

NO. 16-6734 J.L., Petitioner, v. METRO CITY PUBLIC SCHOOLS, Respondent. On Appeal From the Supreme Court of New Columbia BRIEF FOR PETITIONER

This brief belongs to: NAME CLASS SCHOOL MARSHALL- BRENNAN CONSTITUTIONAL LITERACY PROJECT

TABLE OF CONTENTS TABLE OF CONTENTS... 3 QUESTIONS PRESENTED... 5 CONSTITUTIONAL PROVISION... 6 STATEMENT OF FACTS... 7 ARGUMENT... 13 APPENDIX I: CASE LAW SUMMARIES... 22 Tinker v. Des Moines Independent Community School District... 22 West v. Derby Unified School District No. 260... 24 Canady v. Bossier Parish School Board... 26 Stephenson v. Davenport Community School District... 28 Chalifoux v. New Caney Independent School District... 30 Morse v. Frederick... 33 J.S. ex rel H.S. v. Bethlehem Area School District... 34 APPENDIX B: EVIDENCE... 36 EXHIBIT A: Metro City Public Schools Student Parent Handbook... 36 EXHIBIT B: Instagram Post... 40 EXHIBIT C: Video posted by J.L. on social media... 41 EXHIBIT D: Rosaries... 41 EXHIBIT E: Metro City Paper Article... 43

QUESTIONS PRESENTED I. Did Principal Skinner and MCPS violate J.L. s First Amendment rights to free speech and free exercise of religion by disciplining and expelling her for displaying a rosary at a student commemoration event? II. Was the Jefferson High School policy that prohibited students from displaying gang symbols unconstitutionally vague?

CONSTITUTIONAL PROVISION AMENDMENT I 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. 6

STATEMENT OF FACTS J.L. is an eighteen-year-old high achieving high school student who attended Jefferson High School (JHS), located in Metro City, New Columbia, and who was recently admitted to Metro City University. J.L. was awarded a four-year merit scholarship that covered the full cost of university tuition. Recently, J.L. lost her older brother, Sonny, to what is suspected to be gang-related violence. Sonny was a graduate of JHS and the star quarterback of the JHS football team. Sonny was killed during the robbery of a local bodega near J.L. and Sonny s home. It had been rumored that Sonny s death was an execution, rather than an unintended shooting, because the perpetrators of the crime were members of a local gang called GTA, and Sonny had previously been a known member of Los Santos Saints, a rival Metro City gang. Sonny was the only person killed during the robbery. Los Santos Saints members are identified by their signature rosary tattoos. Although Sonny was no longer part of the gang at the time of his death, it was sometimes difficult for him to distance himself from the gang affiliation because he had friends who were still active in the gang and he wore a prominent rosary around his neck. J.L. was very upset after the death of her older brother. J.L. and Sonny s father died when they were young and Sonny was a father figure for J.L. It was not until after their father s death that Sonny turned to gangs, but his success as a quarterback in high school helped him leave his gang lifestyle behind and earned him a scholarship to play football in college. He had just finished his first year when he was killed. After Sonny died, J.L. s mother gave J.L. the rosary that Sonny wore around his neck and kept in his locker during football games. J.L. and Sonny s mom is from a Catholic background and, unaware that the rosary was a symbol of Los Santos Saints, she gave the rosary to Sonny after their father died as a reminder that he would never be 7

alone. For Sonny, the rosary provided dual meaning it was a religious symbol that reminded him of his father, and also reminded him of the gang lifestyle that he had overcome. J.L. now holds the family rosary and wears it regularly. The football team and JHS organized a special commemoration ceremony for Sonny during the halftime of a football game at Metro City Park, a public park across from JHS that housed a football stadium where JHS football games are regularly played. Unfortunately, Sonny was not the only young person in Metro City to fall victim to gang violence. There were deaths throughout the community and local high schools in recent years, largely caused by the growing rivalry between the Los Santos Saints and GTA. To combat this violence, a number of schools in the area imposed zero tolerance policies around things that could possibly be interpreted as gang symbols or supportive of the gang lifestyle, including paraphernalia, hand signs, and exposed tattoos at school. To help fight the gang problem at JHS, Principal Kris Skinner was recruited from Cleveland High School (CHS), one of the most affected schools in the area when it came to gang violence. Principal Skinner was the first principal to implement a zero tolerance policy in Metro City Public Schools and, even though students were upset with the policy and pushed back, CHS saw dramatic turnaround after the implementation of this policy. A number of students faced suspension, were banned from sports and extra-curricular activities, or spent weeks in detention. Principal Skinner helped organize the commemoration ceremony for Sonny, but made it clear that school rules and the zero tolerance policy extended to school events like football games. The day of the ceremony was particularly tough for J.L. She and her best friend Tyler, who was also a close friend of Sonny s, brought rosaries to the ceremony. Principal Skinner saw J.L. and Tyler wearing their rosaries at the end of the first half of the game as everyone waited 8

for the commemoration ceremony to begin. Principal Skinner approached J.L. and Tyler right away. He told them that they could stay for the commemoration, but would need to put their rosaries away, and could not expose them during the commemoration or game. J.L. was disappointed, but complied. Tyler did not. He argued with Principal Skinner, claiming that he would take it out once Principal Skinner walked away. Principal Skinner told Tyler he would have to leave the game. A Metro City police officer stationed at Metro City Park told Principal Skinner that she would escort Tyler from the game. When Tyler still refused to leave, the situation escalated further, and Principal Skinner claimed that an arrest was necessary for safety. At this point, in response to the escalating confrontation, other students began taking pictures and videos on their phones. Other officers came to the scene in light of the disruption. They handcuffed Tyler, and told him that he was under arrest. During the arrest, Tyler slipped and fell. He sustained an injury to his head and passed away at the hospital later that night. Many students at JHS witnessed the arrest and had pictures of the incident on their phones. News of Tyler s arrest and death spread nationwide. A particular photo of Tyler with a bloody head went viral. There were already many protests through the country in response to recent events involving the deaths of unarmed persons by police officers. Tyler s passing fueled tensions in Metro City. Some of the protests turned violent and a police officer was shot at one protest in Metro City. Religious leaders and leaders within the civil rights community were also interested in the events because of the religious aspect of the ban on rosaries. Two hashtags, #SonnysSaints and #IamTyler, appeared on social media and became a popular reference used by protestors. 9

This was an excruciating experience for J.L. She lost her best friend at a moment when she was supposed to be celebrating the life of her recently deceased brother. J.L. decided to plan a commemoration and rally for Tyler. She applied for a Metro City Park permit, planned the event on Facebook, posted an invitation on Instagram, and invited students from JHS. The event was planned for after school on December 5, 2014. Principal Skinner heard students discussing the rally in the hallways, and saw a student watching a YouTube invitation video for the rally on his phone during class. At this point, Principal Skinner found the Facebook page, Instagram postings, and video. The video was posted by J.L. and was so popular that everyone said it went viral. Parents of other students contacted Principal Skinner expressing concern that there may be gang activity and wanted to know that their children would be safe. Some parents even asked Principal Skinner to cancel the protest. Principal Skinner contacted the Metro City Police Department (MCPD) and removed J.L. from class to discuss the event. At the impromptu meeting, Principal Skinner told J.L. that he supported the idea, and offered to loan J.L. the school podium, but was concerned about violence and the safety of his students. Principal Skinner told J.L. he was planning on asking MCPD officers to attend the event. J.L. claimed it would be a peaceful protest and that officers were not necessary. Principal Skinner wholeheartedly disagreed and told J.L. he was going to request officer presence anyway. He told J.L. that school rules would be in place at the rally and told J.L. not to display her rosary. On the day of the protest, Principal Skinner left school early to bring the podium to Metro City Park. Already, by the time he arrived, there were already a lot of people gathering. Principal Skinner noted that a number of his former students from CHS, who were affiliated with GTA, 10

were at the rally. Soon after school let out, there were over 750 people present, including most of the JHS student population, community members, and news teams that were covering the event. As J.L. made her way to the park stage there were shouts of support from the crowd. Partway into her opening speech, J.L. held up her rosary. This infuriated Principal Skinner. He sprinted to the stage and requested that J.L. give him the rosary. J.L. refused. Skinner had J.L. removed from the stage and attempted to end the event. J.L. yelled for everyone to remain calm as she left the stage. At that point, the mood of the crowd quickly changed and chaos erupted. Students began sitting with linked arms, trash and debris were thrown at police officers and protesters were fighting with one another. Several arrests were made and many protesters were injured in the chaos. A number of the people arrested were known Los Santos Saints gang members who were wearing rosaries around their necks. J.L. was among those arrested. The next day Principal Skinner suspended J.L. from school and recommended expulsion to the Metro City Public School (MCPS) School Board. After a disciplinary hearing in front of the school board, J.L. was expelled. The expulsion resulted in J.L. losing her full scholarship to Metro City University, and her admission to the University has been put on hold pending investigation of his expulsion. J.L. has brought suit against Metro City Public Schools to overturn her expulsion, arguing: (1) that expelling her for displaying a rosary violates her First Amendment rights, (2) that even if the school is allowed to prohibit a student from displaying a rosary, the school is not authorized to expel a student for conduct that takes place off of school property at an event that is not school sponsored, and (3) that the school policy prohibiting students from displaying gang symbols is written in terms so unclear that punishing her based on this policy violates her due process rights and is unconstitutional. The U.S. District Court ruled in favor of MCPS and the 11

Court of Appeals affirmed the decision. J.L. now appeals to the U.S. Supreme Court to determine whether MCPS violated her First Amendment rights and her right to due process. Note: Both parties stipulate that any rosaries mentioned in this case are symbolic speech. Both parties stipulate that Jesse does not challenge the notice or hearing that he received with regards to his suspension or expulsion. All characters, events, laws, cases, and documents in the packet are fictional, but in many cases are based on actual events and materials. 12

ARGUMENT I. MCPS violated J.L. s First Amendment right to free speech and free exercise of religion by expelling her for wearing a rosary at a commemoration event because her speech did not substantially disrupt the learning environment, she had a sincerely held religious belief that was unduly burdened by the school s action, and the school s policy was not more than reasonably related to ensuring the safety of students. The First Amendment to the United States Constitution protects an individual s right to speech and free exercise of their religion. U.S. Cons. Amend. I. Being a student does not change this. See. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969). This protection extends to written and verbal expressions, as well as symbolic or expressive acts of speech in the school setting. Id. School officials may prevent certain acts of speech, and even religious acts of expression, in order to preserve the good order and educational environment critical to a schools function. See Tinker. This happens because of the special circumstances of a school and the need for a safe space geared towards learning. A teacher, principal, or other school official may prohibit certain expressive acts typically protected by the First Amendment if it is in the interest of maintaining a learning environment. Id. a. J.L. s conduct was not materially disruptive to the school s learning environment. The Tinker case sets the standard for when school officials may limit First Amendment rights. The First Amendment requires school officials to prove beyond speculation that the prohibited act is materially and substantially disruptive to the school environment. Substantial and material disruption only occurs when speech interferes with the educational duties of schools or negatively impacts school discipline. Even protected symbolic speech may be prohibited if it 13

unduly interferes with schooling. West v. Derby Unified School District No. 260, 206 F.3d 1358 (2002). Restrictions on speech that has not yet occurred for example, prohibiting students from wearing an article of clothing with a certain message will only be upheld if school officials can reasonably forecast the prohibited speech would cause a substantial and material disruption to the classroom. Tinker. An undifferentiated fear of a negative classroom reaction is not enough to surmount the First Amendment s protections. Id. In Tinker, the Supreme Court held that the school violated the plaintiffs constitutional rights by disciplining the students for wearing black armbands to school, in violation of school policy, because there was no evidence to show that the act of speech (wearing the armband) would actually intrude upon the work of the school. School officials argued that the action they took was reasonable based upon their fear of a disturbance to the school environment. The court, however, held that, because the school could not show that engaging in the forbidden conduct would actually disrupt the operation of the school, the actions of the school officials were based solely upon a desire to avoid the controversy of the war, and were unconstitutional. In West, the court upheld a school s policy, and the resulting punishment of a student for drawing a confederate flag in school, because of a series of racially motivated disruptions that had previously occurred in the school some of which were directly related to the confederate flag. The school board contended the flag represented a racially divisive symbol, and its ban was necessary to prevent fights and general disorder in the school. West v. Derby Unified School District No. 260, 206 F.3d 1358 (2002). Here, the direct act of speech J.L. s display of the rosary during the commemoration for Tyler is most like the action in Tinker because the crowd did not erupt into chaos until after 14

Principal Skinner sprinted onto the stage to remove J.L. from the stage. It was Principal Skinner s actions, not J.L. s that caused the mood of the event to change and the chaos to erupt in the crowd. In fact, J.L. told the crowd to calm down as she was being removed from the stage. b. MCPS placed an undue burden on J.L. s First Amendment right to free exercise of religion because J.L. has a sincerely held religious belief and the school s policy was not more than reasonably related to ensuring student safety. Although the school may argue that there was a reasonable fear of disruption to the learning environment by the display of rosaries because of the history of gang violence in the community and school. However, such an argument is not strong enough to overcome J.L. s right to free exercise of religion in this case because J.L. had a sincerely held religious belief. In cases where a person claims that their First Amendment rights to both freedom of speech and religion are violated, courts use a balancing test to determine whether a school s regulation places an undue burden on the exercise of religion. The school must be able to show that the regulation has more than a reasonable relation to the stated goal of the regulation in order for the regulation to be upheld. Chalifoux v. New Caney Indp. Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997). The Chalifoux case specifically addressed whether a school can ban rosaries based on their use by gangs as symbols to identity gang members. Similar to JHS, the school in Chalifoux banned the wearing and displaying of rosaries because of their association with gang violence. Id. The plaintiffs argued the school s ban violated their rights to free exercise of religion. The court sided with the plaintiffs and found the ban to be unconstitutional because there were a number of more effective means available to the school to control gang activity and ensure the safety of its schools. The evidence showed only three instances of alleged gang members wearing rosaries as gang identifies, and only one of those incidents occurred on campus. It was not disputed that plaintiffs wore the rosaries because of their deeply held Catholic beliefs. 15

J.L. s case is nearly identical to Chalifoux. The factors taken together indicate J.L. s wearing of a rosary was symbolic expression of a sincerely held religious belief that did not substantially or materially interrupt the school environment or educational duties of the school. Like the Catholic plaintiffs in Chalifoux, J.L. s rosary has a specific non-gang related message that is protected by the First Amendment. Here the message is one of remembrance of J.L. s brother and father, and their Catholic heritage. J.L. s mother is a devout Catholic and J.L. was given the rosary as a symbol that she would never be alone. Additionally, J.L. was a high-achieving student with no known gang affiliations. The school could have come up with an alternative method of controlling gang-related violence and gang symbols in the school by mandating that school officials consider the context of the symbol and investigate whether the student was actually a gang member before disciplining the student based on the policy. By the school preventing J.L. from expressing this message in the interest of preventing gang activity is a violation of the First Amendment s protection of religious expression and therefore unconstitutional. II. Even if J.L. s conduct is unprotected, it is unconstitutional for a school to punish students for conduct unrelated to school that occurs outside of school. School officials may not regulate student conduct that occurs off school property and outside of school events unless that activity substantially disrupts or interferes with school activities. Substantial disruption and material inference only occurs when conduct inhibits a school from performing its educational duties or ensuring student safety at school. Morse v. Frederick, 551 U.S. 393 (2007). If a school official disciplines a student for off campus activity, the official must establish a clear link between the punished activity and maintaining school discipline in order to discipline the student. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 807 A.2d 847, (2002); 16

In Morse, a student was suspended for displaying a banner at a public parade off of school property. The court agreed with the principal that the banner s promotion of drug use was a violation of school rules and subject to regulation because of the critical factor that students were watching the parade as part of a school field trip. The event occurred during normal school hours, was an approved social event or class trip, and school rules expressly stated that students attending approved social events and class trips [were] subject to rules for student conduct. Similarly in Bethlehem Area Sch. Dist., when a student created a website at home, from his personal computer, outside of school hours, the Court held that the student could be subject to school discipline based on the in-school effects of the website content because it was inevitable that contents of the website would reach the school. In this case, even if the Court finds that J.L. s speech was materially disruptive and that the actions of MCPS were not unduly burdensome to J.L. s free exercise of religion, the school may only regulate J.L. s speech if it is considered school-related speech. Here, it is undisputed that Metro City Park is a public venue. Therefore, in order to lawfully regulate J.L. s speech at the commemoration event, the school must establish that the event was either a school sponsored activity, like the field trip to view the parade in Morse, or that the effects of J.L. s off-campus speech materially and substantially disrupted school activities. Unlike in Morse, the commemoration event for Tyler was not a school sponsored activity. J.L. organized a peaceful rally that took place off school grounds, was unrelated to school activities, occurred after normal school hours, and did not interfere with any school activities. J.L. applied for a Metro City Park permit on her own and invited students to the event on numerous social media platforms. She even created a YouTube video, on her own, which was so popular it went viral. The fact that Principal Skinner attempted to inject himself into the organization of the event and attended the event does not turn the event into a school sponsored 17

activity. J.L. did not advertise the rally at school herself. The meeting between J.L. and Principal Skinner that occurred was forced upon J.L. while she was at school. Principal Skinner requested police presence at the event even though J.L. disagreed with the necessity of police officer presence. Any authority demonstrated by the school at the rally was unintended by J.L. and further represents the overreaching of JHS school officials. Furthermore, J.L. s conduct had no impact on the educational classroom activities of the school and presented no harm to any student or school official. In fact, the opposite is true: Principal Skinner s behavior both threatened student safety and led to multiple student arrests potentially inhibiting them from attending class. The injuries at the rally only occurred after Principal Skinner pulled J.L. away from the stage. None of the violence was reasonably foreseeable, especially in light of the police presence at the rally. In fact, when Principal Skinner s action incited violence, J.L. asked the crowd to remain calm. Conclusion MCPS abused its authority and engaged in unconstitutional action by expelling J.L. from school when she displayed her rosary at Tyler s commemoration event. J.L. engaged in constitutionally protected speech that endangered no students and had no impact on classroom activities. Even if J.L. s speech was not protected by the First Amendment, school officials may only regulate student conduct within the schoolhouse gates in order to protect student safety and promote an educational environment. This event was off-campus and not school sponsored. Therefore, MCPS s actions are unconstitutional. III. Jefferson High School s ban on displaying gang paraphernalia or wearing gangrelated apparel is unconstitutionally vague because it does not clearly define what a gang symbol is. 18

In recent years, because of increasing gang activity in schools, schools have been forced to address gang propaganda and messages. Because any common symbol, religious symbol, word, or message, can be adopted by a gang as a gang symbol, the line between free and prohibited speech has blurred. Stephenson. Despite its broad protections, Tinker leaves school officials as the government authority figures tasked with preserving the structured learning environment of a school. See Tinker. Because school officials have the authority to enforce rules to help create a safe and educationally supportive school environment, courts have decided that school rules do not need to be written as specifically as criminal laws. Stephenson. However, in order for a school rule to be constitutional, and satisfy our right to due process, it must be written so that students have notice of the behavior that is prohibited and a person of ordinary intelligence can follow the rule without guessing at its meaning. Chalifoux. If a regulation is written in words so unclear that a person of ordinary intelligence cannot follow the rule without first guessing at what the regulation calls upon us to do or not do, it is said to be unconstitutionally void-for-vagueness. Id.; Stephenson. Several courts have decided blanket bans on gang symbols are not allowed by the First Amendment because they overly limit students expressive rights and are too vague to be enforced fairly. In Stephenson, the Davenport School District had a policy of prohibiting any gang symbols in schools. The Superintendent sent a letter to parents that included the District's Proactive Disciplinary Position K 12. That regulation stated: Gang related activities such as display of colors', symbols, signals, signs, etc., will not be tolerated on school grounds. Students in violation will be suspended from school and/or recommended to the Board for expulsion. 19

There was no definition of gang related activities or colors, symbols, signals, signs, etc., in the regulation. Based on the lack of clarity in the definition, the court found the policy to be unconstitutionally void because it allowed school administrators and local police unfettered discretion to decide what represents a gang symbol. In the Chalifoux case, the school s definition of gang symbol was similarly vague. Rosaries were not directly listed as gang symbols in the dress code, but were considered to be gang-related apparel. The court in Chalifoux held that even though school officials must have flexibility in handling daily problems that arise in schools in order to ensure the safety of children, the definition of gang-related apparel was not constitutional because it revealed little about what conduct was actually prohibited. Gang-related apparel was defined as clothing that was gangrelated. There was no defining term as to what constituted a gang, or when an object would be considered gang related. In this case, the regulation in the JHS handbook is just as unclear as in Stephenson and Chalifoux. JHS s policy does not adequately define what a gang color, arrangement, trademark, or symbol is. Even though the handbook tries to narrow the definition of gang by adding in the phrase known for illegal or violent conduct to the definition of gang-related apparel many associations of people can be known for illegal or violent conduct and not be gangs in the implied sense. Theoretically, a person displaying the flag of any country that has gone to war, or wearing a tee-shirt supporting a sports team with a member found to have taken an illegal substance could be in violation of the policy. Because of this, students must 20

guess at the meaning of the policy and the policy grants school officials too much authority to decide when to enforce the policy. Therefore, the JHS ban on gangrelated apparel is unconstitutionally vague. CONCLUSION For the reasons stated above, the Supreme Court should reverse the decision of the lower court and hold that (1) MCPS violated J.L. s First Amendment rights to free speech and free exercise of religion when it expelled her for displaying a rosary at the commemoration rally for Tyler because J.L. s conduct was not materially disruptive to a school sponsored event, and (2) MCPS s prohibition on gang related apparel is unconstitutional because a person of ordinary intelligence must guess at its meaning in order to comply with the rule. 21

APPENDIX I: CASE LAW SUMMARIES Tinker v. Des Moines Independent Community School District 1 Facts: John and Marybeth Tinker, 15 and 13 years old, attended school in Des Moines, Iowa. In December 1965, they decided to publicize their objections to the war being fought in Vietnam by wearing a black armband during the holiday season and by fasting on New Year s Eve. The Principal of high school became aware of the Tinkers plans to wear armbands. On December 14, 1965, the school adopted a policy that any student wearing an armband to school would be asked to remove it. If the student refused to remove the arm band, the student would be suspended until they agreed to return without the armband. The Tinkers were aware of the regulation that the school authorities adopted. On December 16 th, the Tinkers wore black armbands to school. They were sent home and suspended from school until they agreed to come back without an armband. They did not return to school until after the planned period for wearing armbands had expired that is, until after New Year s Day. The Tinkers claim that the school violated their First Amendment right to free speech. The school argues the action was reasonable in order to prevent disturbance of the school environment. Discussion: Students to not shed their constitutional rights to freedom of speech at the schoolhouse gate. Schools are places for learning, but that does not mean that students do not have voices. Schooling surely involves the imparting of information and skills society deems important to student development. However, learning is more than right and wrong answers. Students are not simply closed circuit recipients of what the school wants them to hear. Schooling also prepares students with the tools for economic, social and civic life, which includes independent thinking and voicing of their views, even if imperfectly formed. To accomplish this, school requires the interchange of ideas. At the same time, schools have must have the power to create and maintain an environment where learning can take place. In First Amendment terms, this means that students have a right to think their own thoughts and to free expression of their ideas, so long as this doesn t impose on other people s rights. In this case, our problem lies in the area where students exercise of First Amendment rights collides with the rules of the school authorities and the need for order. We believe the best rule to balance student speech rights and school authority is as follows: students have a right to free speech in schools so long as it does not materially or substantially interfere with or disrupt the work of schools. Conduct by a student, in class or out of it, which for any reason materially disrupts classwork or involves substantial disorder or invasion of the rights of others, is not protected with constitutional guarantee of freedom of speech. 1 393 U.S. 503 (1969) 22

Furthermore, in order for school officials to justify the prohibition of a particular expression of opinion, they must be able to show there was more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint. Here, there is no evidence that shows the Tinkers speech would intrude upon the work of the school or the rights of other students to learn at school. The Tinkers merely planned to go about their daily schedule while wearing a band of black cloth on their sleeves. They intended to exhibit their disapproval of the war, to make their views known, and to influence others to adopt them, through example. The armband is a form of speech. The Tinkers neither interrupted school activities nor sought to intrude in school affairs or the lives of others. Outside the classrooms, a few students made hostile remarks to the Tinkers, but there were no threats or acts of violence on school premises. The school argues that the action it took was reasonable because it was based upon their fear of a disturbance to the school environment. However, fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. For such a prohibition on expression to be upheld, a school must be able to show it was reasonable for school officials to believe that engaging in the forbidden conduct would substantially disrupt the operation of the school. Here, the action of the school authorities appear to have been based upon an urgent wish to avoid the controversy which might result from the expression of opposition to the United States participation in the Vietnam War. Conclusion: Here there are no facts which might reasonably have led school authorities to forecast substantial disruption to school activities, and no disturbances on the school premises occurred. Therefore, the school violated the Tinkers First Amendment right to free speech. 23

West v. Derby Unified School District No. 260, 206 F.3d 1358 (2002) Facts: In early 1995, several racially motivated verbal confrontations occurred between students at Derby High School. Some white students wore shirts bearing the image of the Confederate flag. Members of the Aryan Nation and Ku Klux Klan became active off campus circulating materials to students encouraging racism. Around the same time, graffiti stating such things as KKK (Ku Klux Klan) appeared on campus in bathrooms and on walls and sidewalks. School officials received reports of racial incidents on school buses and at football games. At least one fight broke out as a result of a student wearing a Confederate flag headband. The Derby Middle School was not immune from the racial tensions. Although the tensions were not widespread and involved relatively few students at the middle school, incidents occurred involving the Confederate flag. These included students drawing the Confederate flag on their notebooks and arms. In response to incidents of racial tension between students at Derby High School, the school district adopted a Racial Harassment and Intimidation policy that prohibits students from wearing apparel that is racially divisive or creates ill will or hatred. The policy resulted in a marked decline of incidents of racial harassment and discord in the school district. At the beginning of each school year, the school district requires all students at the middle school to review a student handbook which sets forth the school district's policies, including the harassment and intimidation policy. On April 14, 1998, during math class at Derby Middle School, T.W. drew a Confederate flag on a piece of paper at the prompting of another student. Other students warned T.W. not to draw the Confederate flag but T.W. drew the flag nonetheless. Another student took the drawing and showed it to the math teacher. Pursuant to the school policy, the Assistant Principal suspended T.W. for three days. The school does not dispute that T.W. never intended to harass or intimidate any other student by drawing the Confederate flag. However, at the beginning of the 1997-1998 school year, T.W. signed an acknowledgment form stating: I have reviewed and understand the disciplinary policy at DMS as outlined in the DMS agenda book. Nevertheless, T.W. became involved in numerous disciplinary incidents during the 1997-1998 school year. At one point, T.W. received a three-day suspension for calling another student Blackie. After another incident, T.W. had an administrative conference with the school s principal, who reviewed the harassment and intimidation policy with T.W. Accordingly, T.W. was well aware of the school district s policy prohibiting the drawing of the Confederate flag. T.W., through his guardians, files this suit asserting that Derby Unified School District violated his First Amendment right to free speech. The School District claims that the action was reasonable in order to prevent disturbance of the school environment. Discussion: To be sure, T.W. s display of the Confederate flag could well be considered a form of political speech to be afforded First Amendment protection outside the educational setting. Even though students do not shed the constitutional rights to freedom of speech or expression at the schoolhouse gate, the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the 24

school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission even though the government could not censor similar speech outside the school. The court ruled in Tinker that where school authorities reasonably believe that a student s uncontrolled exercise of expression might substantially interfere with the work of the school or impinge upon the rights of other students, they may forbid such expression. Of course, school officials undifferentiated fear or apprehension of a disturbance is not enough to overcome a student s right to freedom of expression. The evidence in this case, however, reveals that based upon recent past events, Derby Unified School District officials had reason to believe that a student s display of the Confederate flag might cause a substantial disruption in the school environment. School officials in Derby had evidence from which they could reasonably conclude that possession and display of Confederate flag images would likely lead to a material and substantial disruption of the school environment. The district experienced a series of racial incidents or confrontations in 1995, some of which were related to the Confederate flag. The incidents included hostile confrontations between students at school and at least one fight at a high school football game. The Racial Harassment policy enacted in response to this situation was clearly something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. The history of racial tension in the district made administrators and parents concerns about future substantial disruptions from possession of Confederate flag symbols at school reasonable. The fact that a full-fledged brawl had not yet broken out over the Confederate flag does not mean that the school district was required to sit and wait for one. In this case, the district had a reasonable basis for forecasting disruption from display of such items at school, and its prohibition was therefore permissible. The district has the power to act to prevent problems before they occur; it is not limited to prohibiting and punishing conduct only after it causes a disturbance. The school s assistant principal had reviewed the harassment and intimidation policy with T.W. numerous times. Accordingly, T.W. was well aware of the school district s policy prohibiting the drawing of the Confederate flag. Although T.W. s argues that his drawing of the Confederate flag was peaceful and nonthreatening, we believe that holds no bearing in this case. Simply put, T.W. knew that drawing a confederate flag was against school policy and that the symbol had a chance to substantially disrupt the school environment. Conclusion: We conclude T.W. s First Amendment free speech challenge to the school district s policy fails. The history of racial tension made it reasonable to forecast a substantial disruption at Derby Middle School and, thus, the policy disciplining T.W. for three days after he drew a picture of the Confederate flag is constitutional. 25

Canady v. Bossier Parish School Board 1 Facts: In 1997, the Louisiana Legislature passed a law allowing school boards the discretion to implement mandatory uniforms. The Bossier Parish School Board (BPSB) adopted a policy of mandatory uniforms that allowed student to choose between two colors of polo or oxford shirts and navy or khaki pants. Several parents of students in BPSB filed suit. The parents argued that the dress code violated their children s First Amendment right to free speech, failed to account to account for religious preferences, and that BPSB s reasons for implementing the uniform policy were unfounded. The school officials responded by showing statistics that the uniform policy led to a reduction in behavioral problems, disciplinary actions, and a rise in test scores. Discussion: A person s choice of attire may be protected by the First Amendment when it the choice to wear a certain clothing is coupled with the intent to express a certain view point or idea. To decide whether conduct is trying to communicate a message, we must first ask whether there was intent to convey a particular message. We must then ask whether the message would likely be understood by those who viewed it. When assessing a claim, we look to the activity, combined with the factual context and environment in which it was undertaken. A person's choice of clothing is infused with intentional expression on many levels. In some instances, clothing functions as pure speech. A student may choose to wear shirts or jackets with written messages supporting political candidates or important social issues. Words printed on clothing qualify as pure speech and are protected under the First Amendment. Clothing may also symbolize ethnic heritage, religious beliefs, and political and social views. Individuals regularly use their clothing to express ideas and opinions. Just as the students in Tinker chose to wear armbands in protest of the Vietnam War, student may wear color patterns or styles with the intent to express a particular message. Finally, students often choose their attire with the intent to signify the social group to which they belong, their participation in different activities, and their general attitudes toward society and the school environment. While this sort of expression may not warrant First Amendment protection in every instance, here, we will assume the First Amendment applies to students choice of clothing. In schools, educators have an essential role in regulating school affairs and establishing appropriate standards of conduct. Schools may regulate speech that is inconsistent with their basic educational mission, even though the government could not censor similar speech outside of the school. School boards, not courts, have the authority to decide what constitutes appropriate behavior and dress in public schools. 1 240 F.3d 437 (5 th Cir. 2001) 26

In Tinker, where the school tried to suppress a specific student viewpoint, the court held a school must demonstrate that the expression would substantially interfere with the work of the school or impinge upon the rights of other students in order to regulate the speech. However, the Supreme Court has ruled that viewpoint neutral policies which govern student speech may be constitutional. Viewpoint neutral policies are policies that are not directed at suppressing the specific content of any particular message. For example, a dress code policy that prohibits all tank tops would likely be considered viewpoint neutral, while a policy prohibiting only tank tops that are a certain color, or display a certain message, would likely not be considered viewpoint neutral. Viewpoint neutral policies may be constitutional when a policy: (1) furthers an important government interest, like maintaining an environment that is conducive to learning, that is unrelated to the suppression of student expression, and (2) the restrictions on First Amendment activities are no more than is necessary to facilitate that interest. Here, BPSB s mandatory uniform policy is viewpoint neutral, and improving the educational process is undoubtedly an important interest for BPSB. The policy was enacted to increase test scores and reduce disciplinary problems throughout the school system. The purpose is in no way related to the suppression of student speech. Although students are restricted from wearing clothing of their choice at school, the students remain free to wear what they want after school hours. Students may still express their views through other mediums during the school day. The uniform requirement does not bar the important personal intercommunication among students necessary to an effective educational process. Conclusion: BPSB did not violate students First Amendment rights when it implemented a policy limiting school uniforms to two colors of polo or oxford shirts and navy or khaki pants, because the policy did not aim to suppress any student speech or expression. It instead was enacted to improve educational goals such as increasing test scores and improving student behavior. 27

Stephenson v. Davenport Community School District 1 Facts: Stephenson tattooed a small cross between her thumb and index finger. She intended her tattoo to be a form of self-expression. She did not consider a tattoo a religious symbol. She also did not intend the tattoo to communicate gang affiliation. Stephenson had no record of disciplinary problems and was never involved in gang activity. While Stephenson was attending West High School, gang activity within the District's schools increased. Students brought weapons to class and violence resulted from gang members threatening other students who displayed rival gang signs or symbols. Furthermore, gang members attempted to intimidate students who were not members into joining their gangs. The District worked closely with local police to address these problems. The Superintendent sent a letter to parents that included the District's Proactive Disciplinary Position K 12. That regulation stated: Gang related activities such as display of colors', symbols, signals, signs, etc., will not be tolerated on school grounds. Students in violation will be suspended from school and/or recommended to the Board for expulsion. There was no definition of gang related activities or colors', symbols, signals, signs, etc., in the regulation. Stephenson visited her school guidance counselor to discuss her class schedule shortly after the letter was sent out. The guidance counselor noticed Stephenson's tattoo, considered it a gang symbol, and notified Assistant Principal Foy. Foy consulted Police Officer Holden who, based on a drawing and description of the tattoo, stated his opinion that it was a gang symbol. Aside from the tattoo, there was no evidence that Stephenson was involved in gang activity and no other student complained about the tattoo or considered it a gang symbol. Foy phoned Stephenson's mother and informed her that Stephenson was suspended for the day because her tattoo was gang-related. Stephenson's parents met with Foy the following morning and agreed that Stephenson would continue to attend school on a temporary basis with the tattoo covered. Officer Holden examined Stephenson's tattoo and confirmed his earlier opinion that it was a gang symbol. Holden contacted another officer who, without viewing the tattoo, also considered it a gang symbol. Foy informed Stephenson's parents that she needed to remove or alter the tattoo, otherwise the school would initiate disciplinary procedures, suspend Stephenson for ten days, and recommend expulsion. Stephenson chose not to alter the tattoo because she did not want a larger tattoo and feared school administrators or police would also classify it as a gang symbol. She then met with a tattoo specialist who advised her that laser treatment was the only effective method to remove the tattoo. The procedure, which cost about $500, left a scar on Stephenson's hand. Stephenson claims the policy is too vague and unclear to be enforced because it does not define what a gang symbol is and that school violated her due process rights by punishing her. 1 110 F.3d 1303 (1997) 28

Discussion: A regulation may be considered unconstitutionally vague when it fails to provide people adequate notice or fair warning of the conduct it seeks to prohibit. This is known as the void-for-vagueness rule. It comes from the due process clause of the Fifth and Fourteenth Amendments. A regulation may be considered void-for-vagueness if it is so unclearly written that a person of ordinary intelligence must guess at its meaning. This doctrine is also used to prevent inconsistent or subjective application of a regulation by authority figures. Here, based on the wording of the regulation, common religious symbols may be considered gang symbols. The meaning of Stephenson s tattoo, a cross, is contested. Stephenson considers it simply a form of self-expression while the school considers it a gang symbol. A significant portion of the world s population, however, views it as representation of Christian faith. School disciplinary rules need not be as detailed as a criminal code, because school officials need to have flexibly to create and maintain environments that promote student safety and learning. Tinker. However, when policies regulate expression that is otherwise protected by the First Amendment, the doctrine demands that we require that the regulation be written in more specific terms than we might otherwise require if the action was not protected by the First Amendment. We usually look to prior case law or prior application of the regulation to determine the meaning of a regulation. Here, there is no prior application of the regulation to guide us, so we are left with only the undefined meaning of the term gang itself. The word gang has many meanings in dictionaries and in historical context. There is no evidence that the word gang itself has ever been limited to a group having the purpose of committing criminal offenses. It has quite frequently been used in reference to groups of two or more people who are not suspected of criminality or anything that is unlawful. We have found no case that has upheld a regulation which prohibits gang activity without defining the term. The District regulation does not provide adequate notice of the prohibited conduct because the term gang, without more explanation is fatally unclear. Additionally, because the term is not defined, school administrators are given too much discretion to decide what represents a gang symbol. Gang symbols take many forms and are constantly changing. Because the regulation fails to define the term at all, and consequently, fails to provide meaningful guidance for those who enforce it. The District must define with some care the gang related activities it wishes students to avoid. The District regulation, therefore, violates a central purpose of the vagueness doctrine that if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Finally, there is no evidence that District students perceived Stephenson s tattoo as a gang symbol or complained about the tattoo during the thirty months she had it on her hand. The regulation contains no requirement that students consider a symbol gang related before disciplinary action is taken. Conclusion: We hold that the regulation violates the central purposes of the vagueness doctrine because it fails to provide adequate notice informing students of unacceptable conduct and fails to offer clear guidance for those who apply it. A person of common intelligence must guess at the undefined meaning of gang related activities. The District regulation is unconstitutionally void-for-vagueness. 29