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February 7, 2012, Number 84
J.S. Upends J.S., Students’ First Amendment Rights Expand: But Where Does This Leave District Administrators?
By , and , Esquires
In June of last year, we detailed two cases where the Third Circuit found in favor of students’ free speech rights. Since then, both school districts have petitioned the United States Supreme Court to review the Third Circuit’s ruling. Recently, the United States Supreme Court declined to hear either case. The effect of the Supreme Court’s denial for appeal is that the decision of the Third Circuit stands as a final decision. Regrettably, the Third Circuit decisions offer neither clarity nor empowerment for school administrators. Until recently, school district administrators were largely influenced by J.S. v Bethlehem, where the PA Supreme Court found no first amendment violation when a website created off-campus caused an on-campus disturbance. J.S. v. Blue Mountain turned everything on its head. When it comes down to a student’s free speech rights versus a district’s ability to discipline, which one trumps legally? Below, a brief history on the subject.
Recap of Student First Amendment Rights
The landmark school speech case, Tinker v. Des Moines School District, arose in the 60’s, when students and adults held meetings to express their opposition to our nation’s military conflict with Vietnam. To show their support for calling a truce, the three Tinker siblings, all of whom attended school in Des Moines, wore black armbands to school. In response to the major controversy surrounding the Vietnam War, including protest marches and draft card burnings, the school district banned the black armbands, even though there was no indication that any disorderly acts of protest would transpire in the school. The District Court, and, ultimately, the United States Supreme Court held that the ban was an infringement on students’ right to free speech. Absent “substantial disruption” of the educational program or a reasonable forecast of such “substantial disruption,” school districts may not preclude student expressions, according to Tinker.
Twenty years later, in 1986, student vulgarity was brought to the forefront of the student rights discussion. In the case of Bethel School District v. Fraser, the Supreme Court had to decide whether students had a first amendment right to their own manner of speech in public school, particularly when the manner of speech is chosen by the student to emphasize a political viewpoint. During a pep rally before his fellow high school students, Matthew Fraser gave a speech in favor of a candidate for school office that created an instant school sensation that elicited a clamorous student response of hooting, hollering, and gesturing. However, the administration was not amused, and Matthew was disciplined due to the “vulgar, lewd, and profane” manner of his speech. Alleging that his first amendment rights were violated, Matthew and his parents sued the school in federal court. Matthew testified that his speech was only meant to appeal to his fellow students in order to garner support for his candidate for student office. The United States Supreme Court held that, because lessons of manner and civility are a critical part of the educational program, school administrators may restrain speech that is “vulgar, lewd, or profane.” Therefore, the Court upheld the Bethel school district’s punishment of Matthew.
About twenty years after Fraser, the United States Supreme Court addressed student pro-drug speech, or speech that could be reasonably deemed pro-drug speech. During a media-covered school event, Principal Morse promptly removed a banner containing a singular phrase, “BONG HiTS 4 JESUS,” that was unfurled by student Joseph Frederick. In the case of Morse v. Frederick, Joseph sued Principal Morse for supposedly violating his first amendment right to free speech.
Principal Morse testified that she interpreted the banner as advocating for illegal drug use due to the age of the student body. Joseph, however, stated that the banner was “gibberish” displayed for the sole purpose of “getting on TV.”
The Supreme Court held that, because deterring drug use is integral to public education, school administrators may restrain speech that is reasonably deemed pro-drug speech. Therefore, the Court deferred to Principal Morse’ reasonable interpretation and upheld Morse’s punishment of Joseph.
J.S. Overturns J.S.
Perhaps it is poetic irony that the recent case of J.S v. Blue Mountain School District all but overturns its near namesake J.S. v Bethlehem Area School District. In contrast to Blue Mountain and Layshock v. Hermitage School District, where the courts felt the incidents were not necessarily a disruption to school activites and not sufficient to impose restraints, a similar case saw a different ending when, in 1998, an eighth grade student of the Bethlehem Area School District created a website with animated pictures of his teacher morphing into Adolf Hitler and his principal getting hit by a bullet. The student included on his website a plea for students to give him $20 to “help pay for the hitman.”
When the school district heard about the website, disciplinary proceedings were initiated and the school board voted to expel him. The student sued the school claiming that his discipline violated his first amendment right to free speech. In 2002, the Supreme Court of Pennsylvania upheld the expulsion for two reasons: First, it held that there was a sufficient connection between the website and the school campus to consider the speech on-campus speech; secondly, the website created an unsafe atmosphere at school and, although potentially viewed as merely sophomoric, teachers and students took the website seriously.
Easton School District Must Allow Cancer Bracelets
To add to the first amendment landscape, the Easton School District was sued by two middle school students and their mothers, represented by the American Civil Liberties Union, for its decision to exclude bracelets containing the phrase “I ♥ Boobies!”, pursuant to its dress code restriction on vulgar expression and statements conveying double entendre.
Contrary to the prerogative provided by the Supreme Court in Fraser, the District Court held that Easton could not restrain speech that was part of a “legitimate breast cancer awareness campaign.” After analyzing the multiple meanings of “boobies,” including “stupid fellow,” the District Court, denying the obvious, declared that the phrase “I ♥ Boobies!” does not have a secondary sexual meaning and, therefore, could not reasonably be deemed “vulgar.”
Since the “I ♥ Boobies!” bracelets, there have been even more provocative attempts to promote cancer awareness, including testicular and prostate cancer awareness accessories and T-shirts. We would be very interested to hear about your experiences and incidents with these products in your school, including any new trends you are observing. If you have experienced any similar incidents, we invite you to contact Keely Espinar at
Bottom Line for Districts
While federal courts decisions in some of these cases may appear to second-guess the authority of duly-delegated administrators, schools should continue to set policy, communicate their expectations for conduct and continue to discipline their student body as usual.
However, the First Amendment can be murky territory when invoked by members of your student body. We strongly advise you to take First-Amendment based opposition to any discipline seriously, and to immediately contact your solicitor.
* This School Law Bullet is meant to be informational and does not constitute legal advice
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