Social Issues / Search And Seizure In Public Schools
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Autor: anton 08 April 2011
Words: 1931 | Pages: 8
The purpose of this paper is to discuss public school districtsâ€™ limits on â€œhateâ€ speech and
reconcile those limits with the decision in Tinker v. Des Moines.
Importance to Education
To avoid disturbance and disruption and to create and maintain a safe learning environment, public schools often adopt policies that forbid certain acts on the part of students. Included in many of these policies are prohibitions on hate speech. The opinion of the court in Tinker v. Des Moines (1969) broadly stated that students retain their first amendment rights when they enter the school, but the breadth of that statement is not without limit. Schools may narrowly curtail free speech rights to the extent necessary to maintain good order and prevent distractions and disturbances in the school. (Tinker v. Des Moines, 1969, p. 514)
The Seattle School District has adopted prohibitions against hate speech in its Code of
Prohibited Conduct. One of the groups impliedly protected by the districtâ€™s policy are gays and
lesbians. Does the districtâ€™s policy infringe upon a studentâ€™s right to criticize homosexuals on
moral or religious grounds? Two recent opinions from separate federal circuits offer conflicting
Identification of Duties and Responsibilities
School districts and schools set general policy regarding the curriculum and the general conduct of students and teachers in schools. School administrators, staff and teachers are required to follow and enforce appropriately the district and school policies.
Teachers are sometimes caught in between the school authority, their students, and families. Teachersâ€™ curriculum choices can require students to delve into sensitive or controversial areas, often creating conflict.
Students attend schools for academic learning and socialization to function as a citizen in a pluralistic society, while trying to survive huge emotional and physical changes.
Parents and families bridge the gap between the community, the students and the school by encouraging their children academically and in the ways of good citizenship.
In its Code of Prohibited Conduct, the Seattle School District has prohibited â€œGang/Hate Group Activityâ€ which includes, but is not limited to: â€œAdvocating distcrimination, intimidating others, soliciting or recruiting members to the group or organization.â€ A â€œhate groupâ€ is â€œdefined as a group of three or more persons with identifiable leadership who regularly conspire and act in concert mainly for criminal purposes.â€ (Code, 2006, p. 11-12) While not expressly protecting any particular group, current convention would include homosexuals as one of the groups falling within its protection.
In the past, such zero- tolerance policies targeted clear evils such as drugs and weapons in schools. More recently such prohibitions have been extended to bullying and hazing, and in the aftermath of events such as the Columbine massacre, hate speech. (Hils, 2001) In theory, such absolute prohibitions on speech are laudable attempts to help schools get rid of speech thought to be threatening or prone to violence. However, absolute prohibitions on speech donâ€™t allow for reason or discriminative thought, and exclude along with the forbidden speech complaints or protests of societal shortcomings or creative expressions of anger. (Hils, 2001). Moreover, such intolerant policies donâ€™t allow students to think critically about their acts or speech, or teach young people the skills to cope and coexist in a sometimes difficult world.
The threat of liability is probably what is driving such absolute policies. If the negligence standard is what a reasonable person would do given the post-Columbine possibility of violence in schools, then an ounce of prior prevention is cheaper than a pound of subsequent damages. This is especially true when the damage award in a speech-infringement case is likely much, much less than an award in a negligence case arising out of physical or emotional injury to students.
Tinker acknowledged that school authorities could prohibit speech at school under the confined circumstances when the authorities could reasonably â€œforecast substantial disruption of or material interference with school activities.â€ Conduct that â€œmaterially disrupts classwork or involves substantial disorder or invasion of the rights of others is of course, not immunized by the constitutional guarantee of freedom of speech.â€ (Tinker v. Des Moines, 1969, p. 509)
A troubling issue for schools now is how to deal with the issue of homosexuality. The struggle for gay rights often causes heated opposition, particularly on moral grounds from members of religious groups. (Essex, 2005, p. 43) Schools have an obligation to maintain a peaceful environment free of significant disruption, while supporting studentsâ€™ rights of free speech. Schools should â€œ. . . create an environment that is characterized by respect for individual views and divergent forms of expression within reasonable limits. The challenge seems to involve achieving a reasonable balance between an orderly educational environment and respect for the free speech rights of students. Precisely, where do they draw the line?â€ (Essex, 2005, p. 44)
Two recent federal appellate decisions highlight the difficulty in drawing the line.
In 2004, the student Gay-Straight Alliance at Poway High School in Poway, California held its second annual â€œDay of Silenceâ€ to promote â€œtolerance of others, particularly those of a different sexual orientation.â€ The previous yearâ€™s observance had been marked with fights, arguments, and counter protests by straight students and resulted in several suspensions. Tyler Harper wore a t-shirt to school that carried several messages:
â€œI will not accept what God has condemned.â€
â€œHomosexuality is shameful â€˜Romans 1:27â€™â€
The next day, Harper wore the same shirt and added to the front,
â€œBe ashamed, our school embraced what God has condemned.â€
Harper refused to take the shirt off when told it was inflammatory and in violation of the schoolâ€™s dress code, and spent the day in the principalâ€™s office. He was not suspended. Harper filed suit in federal court, claiming his rights to free speech and free exercise of religion, equal protection and due process had been violated and sought an injunction to enjoin the school from continuing to violate his constitutional rights. After several motions, the trial court denied Harperâ€™s motion for preliminary injunction. Harper appealed the denial of injunctive relief. (Harper, 2006, p. 1173)
In an opinion that apparently shrinks the scope of Tinker, the court of appeals for the ninth federal circuit affirmed the trial court. The courtâ€™s ruling was based upon a finding that some speech is so psychologically damaging to vulnerable students that it can be banned completely. The Harper court characterized student speech that demeans other studentsâ€™ core characteristics, such as race, religion or sexual orientation, more akin to assault than constitutionally protected speech. (Harper v. Poway, 2006, p. 1178)
Another recent case, Saxe v. State College Area School District, arose in a Pennsylvania high school located in the third circuit of the federal court of appeals. Saxe challenged a school district anti-harassment policy that sought to â€œprovide all students with a safe, secure and nurturing environment â€¦â€ by prohibiting harassment in the form of â€œverbal or physical conduct based on oneâ€™s actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, â€¦â€ Saxe filed suit for injunctive relief on behalf of Christians who are compelled by their faith to speak out against homosexuality on doctrinal grounds. The trial court dismissed Saxeâ€™s action, ruling that harassment is not protected speech and that the school policy was constitutional on its face. The court also rejected Saxeâ€™s argument that the school policy was too vague, because as a practical matter, defining harassment precisely is likely as difficult as defining pornography. (Saxe v. College, 2001, p. 204) In other words, however it is defined, we know harassment when we see it.
The third circuit opinion reversed the trial court, noting there is no â€œharassment exceptionâ€ to the right of free speech. Starting its analysis with Tinker, the opinion noted that Tinker emphasized that â€œundifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.â€ (Saxe v. College, 2001, p.212) Second, the court ruled that the school policy was overbroad because it prohibited speech that would fall into the category of â€œsimple acts of teasing and name-calling,â€ which could not be prohibited speech. (Saxe v. College, 2001, p.211) Speech that is derogatory or negative toward â€œreligious tradition,â€ â€œracial customs,â€ â€œlanguage,â€ â€œsexual orientationâ€ and â€œvalues,â€ when it does not pose a realistic threat of substantial disruption, is within a studentâ€™s First Amendment rights. (Saxe v. College, 2001, p.217)
Conclusions and Implications for Education
The rulings from the ninth and third circuits appear to be in direct conflict. Itâ€™s possible that the absence of a clear threat of violence in Saxe may distinguish it on its facts, but more probable is that the issue of the constitutionality of a pre-emptive policy against hate speech will have to be decided by the U. S. Supreme Court. For the Seattle School District, its anti-harassment policy will likely survive challenge up to the federal circuit court level.
If the high court does reconcile the disagreement between the circuits, the Saxe opinion presents a more compelling rationale. Prohibitions against certain kinds of speech are always going to lean toward overbreadth, or else suffer for vagueness. The more inclusive you make your definition of proscribed speech, the more likely that otherwise protected speech will become ensnared. And a definition that is too lean will suffer the sin of vagueness.
The First Amendment right of free speech creates problems that ultimately strengthen our country, as we learn to engage in civil discourse rather than violence, and as ideas are aired the unworthy are exposed and discarded. There is no better civics lesson of the strength and wisdom of the right of free speech than to see it in operation. If the right of free speech loses respect, then we become more willing to part with it. Education should not be in the business of hastening or contributing to its loss. (Applebaum, 2003)
If there are specific problems in schools that need to be addressed, they should be addressed with policy statements that are tailored to the problem. An example of the folly of zero tolerance policies is the child sent home form school because she brought a plastic knife to school in her lunch, or the child sent home because he brought a tiny plastic toy gun to school. Such actions make no sense, and breed disrespect for other, legitimate policies. To honor diversity we have forbidden many holiday customs for fear of offending, and in the process we dilute diversity. Tolerance doesnâ€™t mean you accept or agree; it means you offer respect as you would be respected. Students should be encouraged and taught to discriminate and use brains and judgment to solve problems as they come up, not prevent them before they occur.
Applebaum, B (2003).Social justice, democratic education and the silencing of words that wound. Journal of Moral Education. 32(2), 151-162.
Essex, N (2005).Gay issues and students' freedom of expression--Is there a lawsuit in your life?. American Secondary Education. 30(1), 40 - 47.
Harper v. Poway Unified School District, 445 F.3d 1166 (2006)
Hils, L (2001)."Zero tolerance" for free speech. Journal of Law and Education. 30, 365-373.
Saxe v. State College Area School District, 240 F.3d 200 (2001)
Saxe v. State College Area School District, 77 F. Supp 2d 621 (M.D. Pa. 1999)
Seattle School District, (2006). Code of Prohibited Conduct. Retrieved October 25 2006, from Seattle Public Schools Web site: http://www.seattleschools.org/area/discipline/ProhibitedConduct-English.pdf
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