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Silencing Students

Free speech activist Mary Beth Tinker.
Activist Mary Beth Tinker, best-known for her role in Tinker v. Des Moines. Photo by Eli Hiller.

More than 50 years after the Supreme Court declared that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” public school administrators are still struggling to absorb the lesson.

School officials in Georgia’s Paulding County, northwest of Atlanta, are the latest to fail the test. Earlier this month they suspended 15-year-old Hannah Watters for taking and sharing photos and video from North Paulding High School. The images show corridors jammed with mostly unmasked students on the first day of the semester. Her posts went viral, forcing Superintendent Brian Otott to issue a letter to parents acknowledging that while the pictures did not look good, he considered them misleading and believed the school was in compliance with the state’s pandemic-control requirements for reopening. (Georgia did not have a mask mandate in place, for public schools or otherwise.)

The five-day suspension Watters received for sharing her images earned the school district at least as much criticism as the pictures themselves. Citing her concern for the welfare of the school community, and displaying considerably more maturity than her elders, the teenager said she did not mind attracting “good and necessary trouble” – a reference to the recently deceased civil rights leader, Rep. John Lewis. Watters seems destined to get first-rate grades, especially in history and civics.

District officials, clearly overmatched, backed down and canceled Watters’ suspension. They were then forced to close the school at the start of the following week, after multiple staff members and students tested positive for COVID-19.

The boundary between student rights and school powers, in particular, has been a tense and uncertain one for decades. In its 1969 decision in Tinker v. Des Moines Independent Community School District, a 7-2 Supreme Court majority ruled in favor of three students who were suspended for wearing black arm bands with a peace symbol in protest against the Vietnam War.

“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,” Justice Abe Fortas wrote for the majority. “Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”

When, if ever, does verbal or symbolic speech by a student “materially and substantially interfere” with a school’s operation? School employees, like all employees, are entitled to a work environment free of hostility to their gender, race, religion, ethnicity or membership in any other protected class. For that reason alone, a school can probably prohibit a student from wearing a T-shirt that uses racial slurs or other forms of hate speech.

But what if a shirt merely expresses support for a political viewpoint that is unpopular with, or perceived to be unpopular with or threatening toward, certain groups?

The school district in the Portland suburb of Hillsboro, Oregon, ran into trouble on this point several years ago. It demanded that high school student Addison Barnes remove a T-shirt bearing the phrases “Donald J. Trump Border Wall Construction Co.” and “The Wall Just Got 10 Feet Taller.” Barnes wore the shirt to his “People and Politics” class on a day the scheduled topic was immigration.

An assistant principal told Barnes that, because his shirt offended another student and a teacher, he should cover it or go home. Barnes initially covered the shirt, then decided that he had a First Amendment right to state his views, so he uncovered it again. He was sent home, and later sued in federal court. He observed – probably accurately, given greater Portland’s generally liberal politics – that nobody would have thought twice had he worn clothing bearing slogans against Trump or the president’s plans for a border barrier.

Barnes secured a $25,000 settlement to cover his legal fees and a written apology from the school principal, USA Today later reported. The settlement was probably a wise move on the school district’s part. It would have been one thing for a school to try to defend a ban on any garments with political statements, on the grounds that such clothing is a significant distraction from the school’s function. But the courts look particularly askance at viewpoint discrimination, in which government policies tolerate certain messages while interfering with others. If Barnes could have proven his point that other students with contrary messages on their clothing were accommodated, the Hillsboro schools would have been in a very poor legal position.

The debates around student speech have been around for a very long time, and they are not going to go away soon. The National School Boards Association recognized the legal and practical hazards in today’s highly polarized climate several years ago. The organization published a sensible and well-documented guidebook to help school administrators understand the issues.

That guidebook ought to be required reading for every high-level public school administrator and school board member. And they should study it carefully, because they are apt to be tested on the material sooner or later.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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