1	Constitutional Law for Educators: -- What Every Teacher Needs to Know April 14, 2008 Presented By: Lawrence G. Walters www.FirstAmendment.com Weston, Garrou, Walters & Mooney Orange County Bar Association Presents: The Courts, The Kids & You: Law Issues for Educators
2	The Courts, The Kids & You
3	Hot Topics Free Expression Pledge of Allegiance Search & Seizure Religious Expression Academic Freedom
4	Free Expression by Students “It can hardly be argued that either students or teachers shed their Constitutional right to freedom of speech or expression at the school house gate.” -Tinker v. Des Moines School District (1969)
5	Students Retain First Amendment Rights When in School Minors have First Amendment rights The scope of these rights depends on the age of the minor Teachers and Administrators should be careful when student discipline impacts any constitutional right Sorting out permissible discipline from constitutional violations can be difficult and challenging
6	Tinker Case Creates ‘Balancing’ Test for Determining First Amendment Protection Tinker v. Des Moines (1969) – Provides the framework for evaluating student speech claims. Wearing black armbands in class to protest the Viet Nam war allowed under the First Amendment. Effort to harmonize First Amendment rights with special characteristics of school environment. “Material Disruption” of school order or “invasion of the rights of others” are key factors.
7	Later Cases Favor Schools Bethel School Dist. V. Fraser (1986) “Indecent” student government nomination speech given by student not entitled to First Amendment protection. Hazelwood v. Kuhlmeier (1988) Student’s articles discussing divorce and abortion in school newspaper can be restricted by school. Rulings based on the ‘public forum’ doctrine.
8	Florida School Disruption Statute § 877.13, Fla. Stat. Florida Statute prohibits: Disruption of school or school activity Advising/Instructing another to disrupt Interfering with attendance of another student or school employee Rioting or engaging in disruption that interferes with educational processes. Penalty: Misdemeanor; 60 days/jail - $500 fine.
9	Florida Case - M.C. v. State, 695 So.2d 477 (Fla. 3d DCA 1997) Facts: “M.C.” was a student at JFK Middle School in Dade County, Florida. Brother arrested for battery on LEO. Detained in main office. M.C. stormed into office waving hands and yelling obscenities about brother’s arrest and treatment by police. Other students joined in the fray. School office functioning disrupted.
10	Court Ruling - M.C. v. State § 877.13 is constitutional. No First Amendment violation. Rationale: Statute focuses on conduct, not speech. Law was a content neutral time, place & manner restriction. Note: Student must act “knowingly” for conviction to stand.
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12	Pledge of Allegiance General Rule: Students cannot be forced to affirm their allegiance to a governmental entity in the classroom. Students cannot be forced to stand during pledge. Verbal censure and ‘singling out’ prohibited -Hollerman v. Harland, 370 F.3d 112, 152 (11th Cir. 2004).
13	To Speak, or Not to Speak… First Amendment protects both affirmative (speech) and negative (silence) rights. Students cannot be forced to speak. “One who chooses to speak may also decide what not to say.” --Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
14	Florida Pledge Case Frazier v. Alexandre, 434 F.Supp.2d (S.D. Fla., 2006) Facts: Frazier refused to stand and recite the Pledge of Allegiance at Boynton Beach Community High School; Statute: § 1003.44, Fla. Stat. (2006): Students must recite Pledge unless excused by parents and must stand irrespective of excuse. Ruling: Statute unconstitutional on its face and as applied. Result: Students need neither stand nor recite the Pledge - with or without an excuse.
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16	Dress Code – General Principles Acceptable if regulation is reasonably intended to accomplish a constitutionally permissible objective. Student must prove regulation was “wholly arbitrary” to win in court. Possible concern: privacy right inherent in child rearing. (Griswold v. Connecticut, 381 U.S. 479 (1965)). General rule – Regulation of student dress usually upheld unless fundamental constitutional right implicated.
17	Personal Grooming Conyers v. Glenn, 243 So.2d 204 (Fla. 2d DCA 1971): Length of student’s hair rests with his parents absent showing of overriding necessity. Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972): Enrollment prohibition based on length of male student’s hair upheld. Note: Ability to regulate length of male hair ends with high school age students. Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972).
18	Areas of Concern re Dress Codes Apparel that communicates a message --potential First Amendment/Censorship issue Apparel mandated by bona fide religious custom or practice ‘Hate speech’, such as “colors,” patches or gang insignia Handicapped accommodations related to dress – potential ADA issue
19	The Expressive Conduct Problem When does dress become expressive conduct under the First Amendment? Developing Rule: Conduct is protected if a reasonable person interprets it as expressing some sort of message. Florida case: Bar-Navon v. School Board of Brevard County, 2007 WL 121342 (N.D. Fla. 2007); Prohibition on body piercing upheld – no evidence of students intended message. Decided by Judge Patricia Fawcett Caution: Next case may meet evidentiary threshold for ‘particularized message.’
20	How ‘bout Cross-Dressing?
21	Court Rulings on Dress Issues Female students desire to wear male clothing not expressive conduct; Youngblood v. School Board of Hillsborough County, Florida, 8:02-cv-1089-t-24-MAP (N.D. Fla. September 25, 2002). Student tattoo: Held; no expressive conduct; Stephenson v. Davenport Comm. School Dist., 110 F.3d 1303 (8th Cir. 1997). Male students wearing of earring not expressive conduct; Olson v. Board of Education, 676 F.Supp.820 (N.D. Ill. 1987).
22	‘Bong Hits 4 Jesus’ Case Frederick v. Morse – Supreme Court Decision --Appeal from 9th Circuit Court of Appeals Ruling Facts: Student unfurled 14-foot banner at off-premises Olympic torch-passing event sponsored by school, during school hours, that read: ‘Bong Hits 4 Jesus’ Principal destroyed banner and suspended student for ten (10) days. Suit filed under Civil Rights Act alleging Free Speech violation by school board.
23	Frederick v. Morse, cont’d Central dispute: Was the message; 1) an encouragement of illegal drug use; or, 2) a harmless (and constitutionally protected) humorous comment? Evidence of material disruption uncertain. Was this a school-sponsored event?
24	Outcome? Court held that School could restrict speech encouraging illegal drug use. Student 1A rights are not the same as those belonging to adults. Under Tinker, the student would have won. But using the Fraser gloss, school need not show ‘material disruption’ to censor speech. Student’s speech would be protected if this was not a school function. Unique concerns presented by the subject matter of the speech; i.e., drug use. Query: What does this ruling mean for other cases?
25	Search & Seizure/Privacy Issues General Rule: Student search must be supported by ‘reasonable suspicion.’ Lower standard than ‘probable cause.’ Cannot be based on “mere” suspicion or hunches. 4th Amendment protections apply to searches by school officials. New Jersey v. T.L.O., 469 U.S. 325 (1985).
26	‘Reasonableness’ Factors in Florida Age of the student, Student’s history and record in school, Prevalence and seriousness of problem resulting in the search, Exigencies in making search without delay/further investigation, Probative value and reliability of information used to justify search, and Particular teacher’s experience with student searched. Case Citation: State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983).
27	Locker Searches Florida Statute § 1006.09(9) allows school employees to search lockers for illegal substances/objects. Reasonable suspicion required. Notice of possible locker search must be posted in noticeable location. Other searches also allowed; e.g., K-9, metal detectors; X-Ray? Earlier version of locker search statute upheld by Florida Courts: Woolley v. State, 459 So.2d 1101 (Fla. 2d DCA 1984).
28	Florida Case, D.T.W. v. State, 425 So.2d 1383 (Fla. 1983) Facts: Teacher’s aid patrolling parking lot spotted drug paraphernalia in student’s car. Aide searched vehicle and found drugs in cigarette box Questions: Can Aid Patrol grounds? Search Valid? Plain view? Reasonable Suspicion to open cigarette box? Court Ruling: Teachers have power to make immediate, limited search for contraband, weapons, and other prohibited items upon reasonable suspicion based on objective facts. Rationale: No prohibition on patrolling school grounds. Drug smoking instrument found in plain view (inside vehicle) Reasonable suspicion to open cigarette package to search for drugs.
29	Student Drug Testing U.S. Adults favor drug testing for students: 70% support random drug testing in schools 29% oppose 1% no opinion Source: www.studentdrugtesting.org U.S. Supreme Court has upheld school drug testing in two cases:
30	Veronia School Dist., 47J v. Acton, 515 U.S. 656 (1995). Holding: Although Fourth Amendment applies to drug urinalysis, requiring school athletes to take random tests was reasonable. School athletes have lesser privacy expectations than other students; who have lesser expectations than adults.
31	Board of Education v. Earls, 536 U.S. 822 (2002). Upheld random drug testing of all students participating in extra-curricular activities – not just athletes. Degree of privacy intrusion was negligible with urinalysis (as compared to other tests). Only consequence of failure was limit on activities. Testing based on hunches or ‘profiling’ may be problematic. Note: Oak Grove, Missouri, school will require students who park on campus to consent to random drug tests. Evidence of increasing trend.
32	Hypothetical Facts: Student’s cell phone keeps ringing in class. Calls begin disrupting learning. Teacher confiscates phone for delivery to administration. Student requests phone be turned off – and it is. While student in class, administrator turns on phone, listens to voice messages, and reads text messages. Administrator becomes suspicious of criminal activity and searches student, her backpack, wallet and car. No illegal items found. School imposes discipline on student. Student claims nothing illegal in phone messages.
33	Questions: Did a ‘search’ of the phone occur? Did the school have ‘reasonable suspicion’ to search? Did the student consent to search? Was the Constitution violated? Do students have greater privacy interests in cell phones? Is this illegal wiretapping
34	School Prayer Debate
35	Religious Expression General Rule: Schools should not interfere with religious expression, nor favor one religion over another. Calls for delicate balancing of competing interests. Courts look at degree of school involvement in religious activity and whether other students feel singled out for beliefs (or non-beliefs).
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37	Prayer in School First Amendment requires schools to be neutral in their treatment of religion, showing neither favoritism toward, nor hostility against religious expression such as prayer. Good News Club v. Mulford Cent. Sch., 533 U.S. 98 (2001).
38	Distinction Private prayer: ok. School sponsored prayer: unconstitutional. Critical distinction between government action endorsing religion (unconstitutional) and private action advocating/practicing religion (constitutionally protected).
39	Prayer in School – The Big Cases Teachers/School officials may not lead their classes in prayer, devotional readings from The Bible, or other religious activities. Engel v. Vitale, 370 U.S. 421 (1962). School officials may not attempt to persuade or compel students to participate in prayer or other religious activities. Lee v. Weisman, 505 U.S. 577, 599 (1992). Private religious speech is fully protected by the First Amendment, even if it occurs in schools. Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 553, 760 (1995).
40	Study of The Bible High Court finds The Bible to be an inherently religious work – premised upon Eric Mission of God. Study of The Bible as an artistic work, a treasury of moral truths or historical text may be permitted, and in context with other writings. Daily reading of The Bible by teachers in public schools amounts to religious instruction and is unconstitutional. Abington Township School District v. Schempp, 374 U.S. 203 (1963)
41	Equal Access Act - 20 U.S.C. §§ 4071-74 Requirements: If school receiving federal funds allows students to participate in non-curriculum related groups on school premises, equal access must be provided to all groups. “Non-curriculum related student group” = groups not related to body of courses offered by the school. Christian group required to be recognized by public school in Board of Education v. Mergens, 496 U.S. 226 (1990).
42	Recent Florida Case Upholds a claim by Gay-Straight Alliance group against Okeechobee High School seeking recognition as school club under Equal Access Act. Gay-Straight Alliance of Okeechobee High School v. School Board of Okeechobee County, Case No.: 06-14320-civ-moore/lynch, (S.D. Fla., March 13, 2007.)
43	Academic Freedom Academic freedom is not found in the Constitution and may not really exist. Originates from Medieval Europe where universities were exempt from civil law. Germany, in 1850 declared “Science and its teaching shall be free.” Ultimately applied to all subjects. Some state constitutions mention academic freedom – Florida’s does not. Two types of academic freedom – individual & academic.
44	Academic Freedom of the Academy Freedoms guaranteed: Who may teach? What may be taught? How it shall be taught? Who may be admitted to study? Generally only applies to colleges and universities. Academic freedom concepts appear rooted in First Amendment rights. Sweezy v. New Hampshire, 354 U.S. 234 (1957). Justice Brennen (1967): “Our nation is deeply committed to safeguarding academic freedom.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). Academic freedom may be justified by freedom of speech, association and assembly.
45	Academic Freedom of Instructors Really a matter of free speech rights. Teachers have greater First Amendment rights than students.
46	Florida Case – Instructor Academic Freedom Faculty organization published open letter to students in student newspaper requesting students to sign petition for summer program. Statute prohibited public employees from seeking support from students. United Faculty of Florida v. Florida Board of Regents, 585 So.2d 991 (Fla. 1st DCA 1991). Court Ruling: Statute invalid as a First Amendment violation. Teachers’ academic freedom respected. Rationale: Teachers have First Amendment rights which cannot be curtailed by state statutes. Content based restrictions on speech are generally invalid.
47	Current Events Question Do teacher First Amendment rights protect bodily exposure in theater production in “The Full Monty?” Issue arose at Lemon Bay High School in Englewood, Florida. Teacher refuses to quit performance claiming artistic freedom; school demanded resignation.
48	Conclusion Constitutional rights often require a balancing of interests. Correct course of action often requires legal advice. Laws impacting student speech rights may be invalid. Avoid any action in response to content of messages communicated by students.
49	The End.