Michael P. Stafford, Esq., at The Delaware Employment Law Blog, has an interesting story about a 5th grader who had the audacity to wear a tee-shirt to school with the slogan “Obama is a terrorist’s best friend.”
The free-speech rights of a student is the topic of the day in Colorado, where a 5th grader has been suspended for wearing a tee-shirt emblazoned with the slogan “Obama is a terrorist’s best friend.” The student’s family claims that his First Amendment right to free speech is being trampled. Conspicuously absent from news coverage of this developing story is any detailed description of the tee-shirt causing “substantial disruption” to the school.
Did the school administration make the correct decision in suspending this youngster?
Under well-established Supreme Court precedent, public school administrators may regulate student speech protected by the First Amendment only in three circumstances: (1) when the speech is substantially disruptive; (2) when the speech bears the imprimatur of the school (such as in a school newspaper or yearbook), or; (3) when the speech is lewd or plainly offensive. In particular, under Tinker v. Des Moines, 393 U.S. 503 (1969), student speech may be regulated only if the school has a well-founded expectation that the speech will cause substantial disruption of the school’s operations or interference with the rights of others. The expectation of disruption must be a specific and significant fear of disruption, not just some remote apprehension of disturbance. In this regard, speech is not disruptive merely because it causes offense or hurt feelings in listeners.
Moreover, any regulation of student speech must also be “content neutral.” In Tinker, which involved students wearing black armbands to school to protest the Vietnam war, the Supreme Court observed that the school had singled out the anti-war black armbands for prohibition but had not forbidden other controversial or political symbols. As many courts have noted in a variety of contexts, restrictions on speech because of its message or content are presumed to be unconstitutional.
I think that Mr. Stafford is just a little bit off on his interpretation here, because he leaves off any discussion of last year’s Moorse v. Frederick (aka, the “bong hits 4 Jesus case”), where the US Supreme Court muddied the waters a little bit on the Tinker test that Stafford cites. (The Court found that the student’s rights were not violated when he was punished for waving a banner on the sidelines of a parade that the students were watching which read “bong hits 4 Jesus”.) However, the Court in Moorse focused overwhelmingly on the school’s “compeling interest” in discouraging illegal drug use, which the majority interpreted this banner as promoting.
Here, I would say that the school might make a similar argument- in fact, it would probably focus on “hate speech” or something similar. However, does the school have a compeling interest in discouraging discussion about the associations of prominant political figures? I think not.
(Also published at Unfair Doctrine)