School Safety V. Free Speech: The Seesawing Tolerance Standards for Students' Sexual and Violent Expressions

Article excerpt

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. "

-Benjamin Franklin1

I. A BRIEF LEGAL HISTORY OF STUDENT FREE EXPRESSION

The Supreme Court has long sustained laws that treat minors as an exceptional class as long as the distinction is reasonable.2 Minors often receive added legal protections or leniencies; for instance, the legislature and the judiciary have enacted and upheld laws that specifically protect children from sexually-based crimes, such as child pornography3 and statutory rape.4 Minors are also sentenced in their own juvenile court systems and are exempt from the death penalty.5

On the other hand, young peoples' rights may sometimes be curtailed or even eliminated. Even though in Goss v. Lopez the Supreme Court confirmed that minors maintain their criminal due process rights despite their youth,6 alternatively, the Supreme Court has maintained that minors' First Amendment rights may be restrained towards the greater interests of discipline and school safety.7 No doubt, students' rights decline while on school grounds.8

Although educators may stop expression that substantially interferes with the functioning of the school, students do not completely "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."9 But, when are limits on free expression considered reasonable, fair, or necessary? "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."10 Yet, at what point do school restrictions go too far? School officials are allowed to restrict student expression that presents a "material" and "substantial disruption."" However, "in the post-Columbine climate, 'safe schools' are being created at the expense of students feeling safe and being treated fairly."12

It probably makes sense that administrators need not wait to see an "imminent" or "clear and present" danger13 until they may react; however, does this mean that administrators should re-adopt the theory of bad tendencies14 when it comes to scholastic environments? Of course, instructors who interact with children daily may be more astute to each child's particular "bad tendencies." Regarding expression made outside schoolhouses and made in communities at large, the well-known Miller v. California case ruled that "patently offensive" was too vague a definition without clear illustration and redefined constitutionally protected pornography according to "community standards."15 The courts have not fully delineated what constitutes a "material and substantial disruption" nor the boundaries of disciplining expression under the pretext of defusing "disruptive" behaviors. However, such delineation appears unlikely given the recent surge of discretionary powers granted to government authorities to fight terrorism16 and drugusing minors.17 In 1925, justice Sanford noted, "The State cannot reasonably be required to measure the danger from every . . . utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration."18 This is true of all expression regardless of setting. Outside of schools, "the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."19 Brandenburg v. Ohio noted, "The critical line [is] the line between mere advocacy and advocacy 'directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.'"20 In other words, where dangers are merely perceived and are not present or imminent, the government cannot limit expression. Schools, however, have greater power to limit juveniles' expression.21

Gitlow v. People of New York is the first case deciding that free speech should come under Fourteenth Amendment protection as a fundamental right. …