Stop the bleating posts about an interesting case about the “crushing of dissent in secondary schools.” Generally, when we think about First Amendment rights in schools we think the speech is less protected – just think about student newspapers. In reality, the Supreme Court has protected students’ First Amendment rights in a number of cases, striking down school dress codes as unconstitutional and infringing.
This case of a 17-year old boy who wore a shirt (covered with religious psalms and other saying) in protest of the Homosexual Day of Silence at his school makes us think about students’ right to protest and to share their opinions.
Tinker states that speech protectable by the First Amendment is any sort of particularized message that others will understand. As long as this can be established, which is certainly true in the case of a student wearing a shirt particularly to protest something he does not believe in, a school may only infringe on students’ First Amendment rights when it can prove “facts which might reasonably…forecast substantial disruption of or material interference with school activities.”
It is a fairly high burden to prove that there will be a “substantial disruption.” In order to uphold its dress code as constitutional (in this case preventing students from wearing “clothing or emblems which are offensive to any race, gender or religion”), the school might have to prove that there would almost certainly be a fight or a shooting if the student wears a particular t-shirt. In one case, Sypniewski (3rd Cir., cert. denied), even though there were actual racial tensions and threats between two groups, the court did not find the solid evidence needed to “reasonably forecast [a] substantial disruption.”
At first glance it might seem hateful that students could go around wearing a shirt saying “Homosexuality is a sin” or other seemingly intolerant statements. It might also seem silly that the Court would require the schools to prove with fairly solid evidence that there will be some sort of violence to stop students from wearing obviously provocative statements on their shirts, especially in light of the many recent school shootings and other violence. The school has a vested interest in protecting students from harassment and violence. Why should they not prevent clothing that will provoke racial or other social tensions?
Yet, why should students have to give up their First Amendment rights? They should be able to express themselves and to protest just as others in the rest of the world. The Supreme Court has stated that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Students spend the majority of their young lives in school, developing their own identities and supposedly learning, among other things, about our country’s history and its freedoms. Students should be able to express themselves and their individuality. Moreover, freedom of speech promotes creativity, growth, debate, and perhaps even tolerance of other views. It seems appropriate then that students’ speech should only be curbed to prevent only real impending violence in the school.
If schools were allowed to encroach on the freedoms of students to prevent any possible problem, then how much speech could they prevent? Schools would be able to prevent anything that was unpopular or in the minority by simply saying that it is remotely connected with potential violence. That is certainly a disservice to schoolchildren and as the court stated in Sypniewski, “the First Amendment would have little meaning if schools could go that far.”