Academic journal article Journal of Law and Education

Curtailing Degrading Student Expression: Is a Link to a Disruption Required?

Academic journal article Journal of Law and Education

Curtailing Degrading Student Expression: Is a Link to a Disruption Required?

Article excerpt

In A Post-Morse Framework for Students ' Potentially Hurtful Speech (Religious and Otherwise), Emily Waldman suggested a framework to assess the constitutionality of student expression that may be hurtful to others.1 A central feature of Waldman's analysis was her identification of two categories of student speech that are hurtful to other students: speech directed toward specific individuals and speech expressing a general opinion without targeting particular people.2 Waldman called the first category "verbal bullying," which she contended would not be constitutionally protected.3 While I disagree that all targeted hurtful expression would rise to the level of intimidation involved in verbal bullying, I basically concur with Waldman that school authorities can curtail hurtful student expression that is directed toward specific classmates.4

My main disagreement with Waldman focuses on her assessment of the second category of speech that voices religiously based or other criticism of groups, for example, homosexuals, but does not name specific individuals. She argued this second category of expression should be constitutionally protected under Tinker v. Des Moines Independent Community School District unless it materially and substantially disrupts at least one student's education.6 On this point, our analyses of Supreme Court precedent diverge.7 I contend a link to a disruption is neither constitutionally necessary nor workable for school authorities to curtail students' degrading statements that do not identify specific individuals.

I. THE HARPER DECISION

Waldman devoted considerable attention to the Ninth Circuit's decision in Harper v. Poway Unified School District? Our reactions to the majority and dissenting opinions in this 2006 case highlight our differences in interpreting the applicable constitutional standards. I am more in tune with the Harper majority opinion, whereas, Waldman is more sympathetic with the dissent.

The appellate court in Harper ruled in favor of school authorities who prohibited a student from wearing a T-shirt with phrases that besmirched homosexuality (e.g., "Homosexuality Is Shameful, Romans 1:27" and "Be Ashamed, Our School Embraced What God Has Condemned").9 Instead of relying on Tinker's disruption standard, the court relied on Tinker's second prong allowing school authorities to curtail student expression that collides with the rights of others.10 The court reasoned the messages on the shirt interfered with the rights of others "in the most fundamental way" and concluded that "[p]ublic school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses."11 Additionally, the court interpreted Tinker to mean that the right to "be secure and to be let alone" entails freedom from "psychological attacks that cause young people to question their self-worth and their rightful place in society," as well as freedom from physical assaults.12 The Ninth Circuit emphasized that evidence of a disruption was not required to ban the shirt under the second prong of Tinker,13 concluding that both aspects of the Tinker principle stand alone in allowing school authorities to censor certain student expression and to discipline the speakers.14

Acknowledging that schools are a special environment in terms of constitutional protection of student expression, the Ninth Circuit stated that "while Harper's shirt embodies the very sort of political speech that would be afforded First Amendment protection outside of the public school setting, his rights in the case before us must be determined 'in light of [the school's] special characteristics."15 The court recognized the school's compelling interest in "providing a proper educational environment for its students" and concluded that "its actions were narrowly tailored to achieve that end. …

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