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Steve Hansen: Understanding a student's free-speech rights

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Posted: Thursday, August 16, 2018 11:09 am

By now, I’m sure you’ve heard about the Lodi High controversy making national news last week. Even the Washington Post, Fox News and Newsweek reported this story.

It seems a young history teacher thought a student wearing National Rifle Association T-shirt was a dress code violation and sent the 15-year-old to the assistant principal’s office.

According to various news reports, this same student was allegedly lectured by the instructor that guns are “bad,” and told if she disagreed, a written essay would be required to defend her position.

Officials of the Lodi Unified School District reviewed the case and found no violation of the school dress code. They have since apologized to the family.

Student free speech rights in public schools over the years have been cherished and defended by various courts of law. The most famous Supreme Court case regarding this issue is Tinker v. Des Moines Independent Community School District (1969).

It involved a situation were junior high school and high school students were wearing armbands to protest America’s involvement in the Vietnam War. Administrators ordered the removal of these symbols or school suspensions would be imposed.

Here are some quotes from Justice Abe Fortas delivering the Court’s decision in this case:

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been an unmistakable holding of this Court for almost 50 years.”

“The school officials banned and sought to punish petitioners for a silent, passive, expression of opinion, unaccompanied by any disorder or disturbance on the part of the petitioners.”

“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Yet Justice Fortas went on to state that: “… But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place or type of behavior — materially 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.”

So, based on what we know about this landmark Supreme Court decision, along with the limited information we have about the Lodi High School incident, is there a possibility student free speech rights were violated?

Notice that the key word in Tinker is “SUBSTANTIAL." In other words, the burden of proof for suppressing a student’s constitutional right of free speech is for substantial disruption of the educational process. This burden appears to lie with the school, and not with the student.

Others might disagree based on more recent Court decisions, such as Bethel v. Fraser, Hazelwood School Dist. v. Kuhlmeier, and Morse v. Frederick — all involve First Amendment speech rights of students.

But the good news is our school administrators acted intelligently in this case and hopefully, avoided a major legal battle. That could have involved a long-term national controversy, along with a very expensive financial undertaking for the District — not to mention a public relations nightmare.

It’s not easy being a teacher these days without a legal background. Life has become very complicated, and acting on emotion without knowledge of various civil rights issues can result in career impediments, as well as unwanted legal ramifications.

I hope Lodi Unified leaders go beyond educating their personnel on dress code regulations and provide training on relevant legal matters as well. This includes First Amendment principles.

Teaching prevention of controversial pitfalls is always better than managing serious damage control resulting from inexperienced employees.

Steve Hansen is a Lodi writer.

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