Episode 23: Students’ rights of Free Speech… Yeah, right!

Are you doing these critical things to help your child succeed academically? Take the quiz now to find out the important actions you can take to enhance your child's education. Go to my website, liberationthrougheducation.com quiz and.

Take the quiz today. Foreign welcome to another episode of K12 Education Untangled. My name is Dr. Kim Fields, former corporate manager turned educational researcher and advocate, and I'm the host of this podcast. I got into this space after dealing with some frustrating interactions with school educators and administrators, as well as the micro discriminations that I faced as an African American mom raising my two kids who were in the public school system. I really wanted to understand how teachers were trained and what the research provided about the challenges of the public education system. If you're looking to find out more about current topics in education that could affect you or your children, then you're in the right place. In today's episode, I'll be discussing whether students actually do have free speech rights while they are in school. Learning about the democratic process is a critical component of the civics process in this country. Students need to understand how to use their voices for change. Being able to voice unpopular perspectives in public is a part of that process. Not all environments are open to free speech for students, and this has caused a number of legal entanglements. But how is all of this applied in the era of social media? I delve into the background of K12 public school students, rights of free speech, and the seminal Supreme Court cases that provided precedents for ongoing legal decisions. I then discussed social media implications, the democratic process in action, and how it affects school policies, and seven characteristics of schools that are pertinent for free speech. In an article in ed week in February 2019 by Mark Walsh, he described that a little over 53 years ago. In February 1969, the US Supreme Court issued a decision on student speech that has remained relevant for generations of public school students ever since. The case was Tinker vs. Des Moines community Independent School District, in which Mary Beth Tinker and her brother John were suspended with three other Des Moines, Iowa high schoolers in 1965 for wearing black armbands to protest the Vietnam War as well as to mourn those who had died in the war. In that case, the court ruled 7 to 2 to uphold the rights of several students in Des Moines, Iowa to wear those black armbands in school as a sign of protest against the Vietnam War. The Court said that the armbands were symbolic speech that was protected by the First Amendment as long as the school was generally not disrupted. School administrators learned of the plan and the district's five high school principals came up with an ad hoc policy prohibiting the wearing of the armbands in school. The Tinkers and Christopher Eckhart, another student who wore an armband that day, were suspended along with several other students. The Eckhardt and Tinker families sued the district with the aid of the Iowa Civil Liberties Union. Although they lost in federal district court and a federal appeals court, the case reached the U.S. supreme Court in 1968. In that 7 to 2 vote to uphold the rights of students to wear armbands, a notable quote from Justice A. Fortas was it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. End quote. However, Justice Hugo L. Black, who normally advocates for free speech, drew a line when it came to minors in school. He wrote that if the time has come when pupils of state supported schools, kindergarteners, grammar schools or high schools can defy and flout orders of the school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. End quote Such is the setting for the background of the legal aspects to K12 students exercising their rights of free speech. The Supreme Court has since limited the scope of the tinker case with three notable decisions. In Bethel School District number 403 versus Frazier, 1986, the court upheld the discipline of high schools who delivered a speech full of sexual innuendo at a student assembly. In 1988, in Hazelwood School District vs Kohlmeier, the court ruled in favor of a Missouri principal who read a high school newspaper in advance of publication and ordered the deletion of articles on divorce and teenage pregnancy. The third notable decision Morse the vs Frederick the Supreme Court justices in 2007 ruled that a student could be punished for displaying a banner interpreted as a pro drug message. The banner message was bong hits for Jesus and it was displayed at a school supervised event. In this case, Justice Clarence Thomas overruled Tinker when he stated in the name of the First Amendment, Tinker has undermined traditional authority of teachers to maintain order in public schools. End quote. All of that to say this, students generally have limited free speech rights when on school property, especially if their freedom of expression infringes on the rights of others school safety or interferes with the ability of the school to deliver its educational services and processes outside of the school setting. Social media posts made by students can be controversial as far as their free speech rights are concerned. The Internet actually blurs the lines that would otherwise clearly delineate where student speech would be protected. In some cases, seemingly inappropriate activities made under certain circumstances can be forms of protected student expression. This is because you'll likely find free speech at the intersection of school authority and student social media use. In other words, a former student's speech online would be considered protected under the First Amendment if that same expression were protected in a traditional offline format. The challenge is how educators will address off campus online student speech that would otherwise be prohibited or on campus Student social media use in school has somewhat been mitigated by school administrators by having a clearer school policy on this issue. There are instances where online and off campus student speech could lead to disciplining a student for their social media use, and this has been badged by several court decisions. Those instances would include if there was a violation of the code of conduct established by the school policy if the social media content is directed at school community in a way that could be construed as threatening if the social media use could potentially cause a substantive and material disruption to the educational process if it promotes illegal activity such as illegal drug use or alcohol use, theft and other illegal activities and if the social media content is obscene, lewd, vulgar, indecent, racist, or in any other way inappropriate in a school setting. Ultimately, student expression in the digital era is still clearly a First Amendment issue. Another article in Education Week by Mark Walsh in March of 2013 described how a fifth grader passed out invitations to a church youth party to her classmates while in school at a Pennsylvania school district. A federal courts of appeal upheld an injunction that set aside the Pennsylvania school district's rules that barred this fifth grader from passing out those church youth party invitations. A three judge panel of the U.S. court of Appeals for the Third Circuit in Philadelphia weighed in on this issue of whether elementary school students have free speech rights that are protected by the First Amendment. This panel unanimously agreed that they did. The student's teacher said that she would need permission of the principal at Barrett elementary center in order to distribute the flyers. It seems that the decision was passed up to the district superintendent, who later barred the distribution of flyers, citing that the school board policies mandated that all materials directly related to school district activities or that contribute significantly to instructional programs could be dispersed in school. The child's father sued the Pocono Mountain District on free expression grounds, especially since he knew that other students in the school frequently passed out invitations to birthday parties and other similar activities. In the end, the Third Circuit Court of Appeals panel indicated that the passing out of those flyers caused no disruption to the educational process. In fact, the that panel of judges on the Court of Appeals indicated that the student would suffer substantial First Amendment harm if her freedom of expression continued to be suppressed. However, nothing would bar the district from regulating her freedom of speech if it became disruptive. In a January 2021 article, Mr. Walsh highlighted a case that the U.S. supreme Court agreed to hear from regarding student speech. This particular case was about granting a Pennsylvania school district's appeal of a lower court ruling that it overturned the discipline of a high schooler who posted a vulgar message on Snapchat in a dispute involving her cheerleading team. Again, the high court had to make a decision about the application of the First Amendment rights to the student speech that occurred off campus, especially on the Internet. The sophomore student was placed on the junior varsity cheerleading team instead of the varsity cheerleading team because of her comments on Snapchat. A teammate of the student actually took a screenshot of her message and brought it to the attention of cheerleading coaches who said that it had violated team rules as well as school rules because of the foul language and disrespect of the teammates and coaches. The student who made the snaps was removed from the JV team for the season. That student, identified only as B.L. and her parents sued the Mahoney Area school district in 2017, alleging that their child being removed from the team violated the First Amendment free speech Clause. The student won in federal district court, which awarded her $1 in nominal damages plus attorneys fees. That ruling was affirmed by a panel of U.S. court of Appeals for the Third Circuit in Philadelphia, with the judge specifically indicating that the primary responsibility of teaching civility rests with parents and other members of the community. Even though the student snap was crude, rude and juvenile, just as you might expect of an adolescent, one law professor indicated that Supreme Court should take up the case in order to provide greater clarity to the lower courts and schools about regulation of student off campus speech. The high court's decision about whether public K12 schools can discipline students for any off campus speech is all the more important in this Internet age. Students are constantly accessing social media and this creates even more avenues for off campus communications that can rapidly permeate the school setting. A decision on this case could be determined by June 2021, although the case like this sometimes gets put off until January of the next year when the court returns for its next term. Students across the country planned to mark the one month anniversary of the February 14th deadly shooting in Parkland, Florida by conducting a nationwide plan to walk out of schools for 17 minutes to demand that their state and local representatives address gun violence as reported by Culver and Salkin Education Week, March 2018 these students were among the organizers of the Enough national school walkout on March 14th as well as a separate day long national school walkout on April 20, and they were using social media to rally their classmates. The student organizers stated that their efforts were part of an escalating force in a larger fight. At least two school districts and the administrators associated there were seeking to silence the students and their voices with threats of discipline. A superintendent in the Needville Independent School District near Houston, Texas warned the students against any participation in this type of protest during school hours. In fact, he threatened a three day suspension for any student participating because he stated that the students were in school for an education, not a political protest. The censorship by the superintendent as well as others including the WAKESA school district in Wisconsin raised a couple of interesting questions. One, were these acts of expression protected under the First Amendment? And two what rights do parents have to support their children's efforts knowing that the school or district could discipline their child? The answer to the first question about protections on the First Amendment is that the students do have the right to free expression as long as it doesn't cause any material and substantial disruption to the school day. If there's a possibility of disruption, then the schools have the space to explore how they might work around the disruption and still allow the students to experience the expression of political speech using armbands, speeches, or walkouts. The short answer to the second question about whether parents have the right to support their children's efforts is that the Supreme Court has upheld the rights of parents to choose where their children get an education about citizenry. And the court has banned schools from forcing students to experience express ideological sentiments that conflict with their family's deeply held beliefs. In this particular situation about the walkouts, parents were supporting a foundational purpose of education, namely citizenry, by endorsing civic engagement. The students weren't talking about planning a walkout to demand WI FI in school so that they could use Snapchat. What they purposed to demonstrate was what a walkout was to send a clear message to elected officials that they want to be safe in school. It would seem that this type of civic participation that schools should be encouraging their students to partake schools have a broader mission to help students emerge as participants in their democracy. School districts should allow students the right to political speech. Within reasonable limits, educators should be supporting students and helping them to carry out their freedom of expression as long as it causes no harm to others. They don't have to support the content of the student's expression, but perhaps they should feel obliged to stand up for their students right to speak the US Supreme Court in the Tinker decision indicated that the First Amendment rights are modified by special characteristics of the school environment, as noted by Brian Warnick, researcher who published an article in the educational researcher in April 2009. In that article, Warnick posited seven characteristics of schools that are relevant to free speech freedoms 1 the age of the student, 2 attendance requirements, 3 multiple school constituencies, 4 heightened safety concerns, 5 the need for public accountability, 6 the school associated nature of much student speech and 7 the need to promote educational goals. His aim was to put these seven characteristics into a larger picture in order to better understand how schools can transform students rights. Children and adolescents often lack the knowledge and experience that are necessary for their voices to justify full speech rights. Additionally, children don't exercise democratic sovereignty. This doesn't mean, however, that students don't have anything to say. Warnick makes a point that there is a distinction between children's rights and students rights. Children outside the school environment seem to have rights that children within the school environment do not have.

Have you had a chance to check out my interactive expert on my website? There are some great conversations and questions going on there. You can check it out at. Check out the questions and conversations happening there at HTTPs://liberation through education.com askmenything the.

Age of student directly impacts attendance requirements. Schools mandate that children attend them. It's required by law. They're basically a captive audience and this has implications for freedom of speech. Schools serve multiple constituencies, many of whom have a controlling interest in the school. These constituencies, or as I like to refer to them as stakeholders, include the government, parents, and the children themselves. Speech rights don't always undermine parental authority. Sometimes they enable parental authority. In many cases, student speech is awfully closely associated with family speech. Schools have a heightened concern for safety. The issue is that compulsory schooling generally heightens safety concerns because schools cannot be avoided even if they are dangerous. The safety of schools has often been cited as a reason to deny children First Amendment rights. Public schools that accept public funding, as well as private schools who accept public funding, should be held accountable to the larger democratic community. The formulation and evaluation of their policies should be open and available for revision by the stakeholders they serve. The possibility of public accountability has been linked to freedom of expression A popular argument is that since students don't vote and can't be elected to the legislature or school boards, then they don't need to be given free speech rights. A counter argument indicates that giving people freedom of speech means giving them a voice as decision makers. Warnick provided further research that there's some evidence that indicates that when students have free speech, this can play an important role in creating a more effective school environment. One reality is that much of the student speech that comes out of school is really a cooperative endeavor between the school and the student because the school allows the student to use resources to hold meetings and activities, to publish newspapers and yearbooks, and to provide other forms of expression such as school assemblies. It's not that easy to separate where the voice of the school starts and the voice of the student ends. They're basically intertwined. It is worth noting that students using a room for meetings are not participating in high school associated free speech the main goal of schools is that there are places where learning is taking place in pursuit of certain educational goals. A distinction needs to be made here between activity oriented censorship and message oriented censorship. Activity oriented censorship occurs when free speech is forbidden because it interferes with school activities. On the other hand, message oriented censorship occurs when free speech is forbidden when it runs counter to the message that the school is trying to convey. Although there is not really a unified description of the basic educational mission of most American schools, this has often been difficult and contentious. In any case, it seems better to err on the side of schools being an educational environment in which children learn about the democratic process and civility. Warner concludes that it's not that people are taking too seriously the special characteristics of schools and transforming student rights. It is that people have not taken them seriously enough. So here's how this applies in a little more detail to K12 education. Not surprisingly, most high school students believe that people should be able to express unpopular opinions in public, according to Jacqueline Zubritsky of Education Week in February 2017. Alternatively, they are less supportive of allowing people to publicly share opinions or posts on social media that are offensive or bullying in nature. Students attitude toward First Amendment protection for freedom of speech, religion, the press, and the right of people to peaceably assemble have grown more favorable over the last few years. More than half of these high school students reported using their mobile devices or the social media to get news. Although many high school students have trouble distinguishing between fake news and real news, roughly 76% of high school students are at least somewhat concerned about their privacy on the Internet, and 72% of the students believe that people should be able to make phone calls or send online messages without government surveillance. Here are the takeaways from this episode. Outside of the school setting, social media posts made by students can be controversial as far as their free speech rights are concerned. The Internet actually blurs the lines between what would otherwise be clearly delineating of student speech and where it would be protected. In some cases, seemingly inappropriate activities made under certain circumstances can be forms of protected student expression, and that's because you'll likely find free speech at the intersection of school authority and student social media use. There are instances where online and off campus student speech could lead to disciplining a student for their social media use, and this has been backed by several court decisions. Those instances would include if there was a violation of the code of conduct established by the school policy if the social media content has directly affected the school community in a way that could be construed as threatening if social media use could potentially cause a substantive and material disruption to the educational process if it promotes illegal activity such as illegal drug use or alcohol use, theft or other forms of illegal activities and if the social media content is obscene, lewd, vulgar, indecent, or racist. Ultimately, student expression in the digital era is still clearly a First Amendment issue. Schools provide an ordered and disciplined environment to help students learn how to read and write, but they are also needed to provide an environment in which students can practice their expressive skills within institutional contexts. The question of student rights goes to the heart of what most of us believe education is and what the school should contribute to the educational process. Civic participation, whether by wearing arm bands or conducting walkouts as a sign of protest, is something that schools should be encouraging their students to partake. Schools have a broader mission to help students emerge as participants in their democracy. School districts should allow students the right to political speech within reasonable limits. Educators should be supporting students and helping them to carry out their freedoms of expression as long as it causes no harm to others. They don't have to support the content of the student's expression, but perhaps they should feel obliged to stand up for their students right to speak. After reviewing pertinent literature, my question remains as to whether a student's free speech rights apply to all students Are just some. Nowhere in the literature are any students who demonstrate their free rights indicated as being a student of color. I wonder whether the Supreme Court decisions would have been different if a student of color had been involved in the prior referenced cases. All students are required to learn the democratic process through civics classes and this education applies to everyone regardless of how it is demonstrated. Seven characteristics of schools that are relevant to speech freedoms are 1 the age of the students, 2 attendance requirements, 3 multiple school constituencies or stakeholders, 4 heightened safety concerns, 5 the need for public accountability, 6 the school associated nature of much student speech and 7 the need to promote educational goals. These seven characteristics, when framed into a larger picture, will help you to better understand the complexities involved as far as how schools can transform students. Free speech Rights if this is the type of subject matter and discussion that resonates with you, please subscribe to my podcast or whatever service you're listening to this also, I'd love to hear from you. So please leave me a rating, a review or a comment and share this episode with anyone that you think would find it valuable. Be sure to tell your friends, family and community about my podcast. Additionally, connect with me on Instagram, Twitter and Facebook with the handle kimjfields. Thanks for listening today. I hope you will come back for more K12 educational discussions with even more exciting topics to untangle. By the way, if you have a burning question about a current issue or a specific topic that you'd like me to explore and discuss, shoot me a quick email@kimliberationthrougheducation.com to let me know what your question is. Anyone whose question is selected to be discussed on one podcast episode will receive a $25Amazon gift card and be sure to stay tuned. On the next episode of my podcast, I'll be reviewing another book from the Band Book List, the Hate U Give. Until next time. Aim to learn something new every day. Love my show. Consider being a regular subscriber. You can subscribe for as little as $3 per month. Just go to there's no contractual obligation you can cancel at any time. If you choose to subscribe, I'll give you a special shout out thanking you in an upcoming episode. Remember, that's tinyurl.com podcastsupport to subscribe.