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Computer game to draw on real cases to simulate First Amendment lawsuit





If retired Supreme Court Justice Sandra Day O’Connor has her way, students across the country will be donning controversial T-shirts and unrepentantly violating school dress codes ‘ in a virtual sense, at least.

The retired justice is helping to develop a free, interactive, Web-based program called “Our Courts” for middle school students to experience civics by investigating and arguing cases ‘ like whether T-shirts with contentious messages can be worn at school.

O’Connor is providing guidance and leadership for the two-part program she is developing with experts at Georgetown University Law Center and Arizona State University.

One component of “Our Courts,” designed by a company in New York City, can be used in classroom curricula, while the other component is a game, designed by a Madison, Wis.-based company, intended for students to play in their free time.

The game challenges students to view cases from the perspectives of several actors: the client, a juror, an attorney or the judge presiding over the case. And the first game will be focused on the First Amendment, said Abby Taylor, director of the “Our Courts” project.

“We decided it was something that was really concrete that students could wrap their minds around,” Taylor said. “We know you don’t lose your First Amendment rights at the schoolhouse door, but we still don’t really know what that means, so we’re going to have kids grapple with that and figure out what that really means to them.”

She said students will be very involved in testing content to make sure they find it accessible and engaging. They will confront a fictional situation in which a school policy prohibits virtual students from wearing T-shirts that depict band names or logos because students in the fictional school have been arguing about musical tastes. The school views these arguments as disruptive. But a student wears a prohibited logo supporting a musical group anyway and is disciplined. He challenges the discipline all the way to court.

Real life bases

The student’s hypothetical situation is similar to several cases involving real-life students testing the limits of their school dress policies in the name of free speech.

In May, the mother of a Minnesota sixth grader filed a lawsuit against the school, arguing administrators violated her son’s First Amendment rights when they ordered him to stop wearing T-shirts that bore anti-abortion messages. School officials at Hutchinson Middle School in Hutchinson, Minn., told the student he could not wear the shirts because they were inappropriate and “could be considered offensive,” according to the lawsuit.

The boy, referred to as K.B. in court documents, wore three particular T-shirts on numerous occasions in April. He was not reprimanded the first day, but on another day a teacher told him his shirts were inappropriate, the lawsuit says.

He was reproached at least eight more times that month for wearing the T-shirts produced by the American Life League, a Roman Catholic group that supports anti-abortion activities. On the front, one had the words, “Abortion ‘ Growing, Growing, Gone.” Another said, “What part of abortion don’t you understand?” The third said, “Never Known, Not Forgotten.” On the back, all three said, “47,000,000 babies aborted 1973-2008.”

K.B.‘s school district has a policy that prohibits schools from abridging “the rights of students to express political, religious, philosophical, or similar opinions by wearing apparel on which messages are stated.” As long as these messages are not lewd, vulgar, obscene or profane, they are acceptable, the policy states.

More than 1,200 miles away, Paul “Pete” Palmer confronted the same difficulty when he wore his opinion on his shirt.

Palmer believes the dress code at Waxahachie Independent School District in Texas violated his First Amendment rights, because administrators used their dress code regulations to prohibit him from wearing a John Edwards 2008 T-shirt in class.

He filed a lawsuit against the school district in April. In May, the district clarified its dress policies about logos, slogans, words and symbols on clothing. Students can wear “campus principal-approved” collared shirts or spirit T-shirts with messages supporting school-sponsored clubs, but any other manufacturer logo must be 2-by-2 inches or smaller, according to the policy.

The school’s wardrobe restrictions, prohibiting the Edwards shirt, infringe on Palmer’s First Amendment right of political speech, said his attorney, Hiram Sasser.

A motion for a preliminary injunction that would allow Palmer to wear his shirt states that schools have a responsibility to teach students about constitutional principles “not only as part of the curriculum, but also by faithfully applying them.”

“And in the context of a presidential election year, that responsibility would seem, if anything, to lead our schools to encourage undisruptive means of expressing political views ‘ not to stifle them,” the motion contends.

Palmer’s case largely hinges on whether the U.S. District Court for the Northern District of Texas ‘ under the jurisdiction of the 5th U.S. Circuit Court of Appeals ‘ chooses to evaluate the school’s dress code under the Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District or whether it decides the case is better analyzed under the 1968 decision in United States v. O’Brien.

In Tinker, the Court ruled public school officials violated students’ First Amendment rights when they suspended the students for wearing black armbands in political protest. The decision set the standard that schools cannot censor student expression unless they can clearly demonstrate the expression will cause a material disruption of normal school activities or invade the rights of others.

But some courts have instead applied the O’Brien test to certain types of student expression cases.

In O’Brien, the Court upheld the conviction of a man who burned his draft card in protest. It created a standard allowing suppression of expressive conduct if the regulation advances a substantial government interest and is unrelated to the suppression of free expression.

In May, the 9th U.S. Circuit Court of Appeals upheld a Nevada school district’s dress code, using O’Brien as a guide. The court affirmed the lower court’s decision in Jacobs v. Clark County School District that several students could be punished for violating the uniform codes, which required solid khaki bottoms and solid red, white or blue shirts.

The lead plaintiff, Kimberly Jacobs, repeatedly violated Liberty High School’s uniform policy and was suspended from school five times for a total of about 25 days, according to court documents. At least once, her shirt contained a message reflecting her religious beliefs.

Judge Michael Daly Hawkins wrote in the majority opinion that Tinker did not apply in Jacobs’ case because the dress code regulations were not based on particular viewpoints or messages she and the other students were attempting to convey.

In dissent, Judge Sidney R. Thomas wrote that the majority’s decision “represents a substantial rewriting and undermining of the First Amendment protections afforded by Tinker.”

Allen Lichtenstein, who represents the students and parents, said passive expression on clothing is protected speech.

“The premise that student rights do not stop at the schoolhouse door is still good law according to the Supreme Court,” said Lichtenstein, who is the general counsel for the American Civil Liberties Union of Nevada.

He has filed a petition for reconsideration of the 9th Circuit’s ruling.

First Amendment foundations

With cases like Jacobs making their way through the legal system, it is likely that officials with O’Connor’s “Our Courts” project will have to find a way to keep the game dynamic and continue supplementing the modules as time passes, said Taylor, the project’s director.

“It’s a challenge to some extent, because you can’t just release something like this and have it be done, because the law changes all the time,” she said.

For this reason, the game will focus on historic cases like Tinker and Hazelwood School District v. Kuhlmeier, a 1988 Supreme Court decision that determined administrators could censor many school-sponsored student publications by showing administrators have a legitimate educational reason for doing so.

“We hope to give students civics in a whole new perspective,” said Elizabeth Hinde, an assistant professor of education at Arizona State University who specializes in social studies education.

She is co-chairwoman of a team of educators charged with developing the “Our Courts” curriculum. “We’re going to be teaching civics from a judicial point of view, and that’s what separates this from other civics education programs.”

Hinde worked as a teacher for roughly 18 years before becoming a professor, and she still regularly works in grade-school classrooms. She is not happy with what she has been observing.

“Students unfortunately right now have such a limited knowledge of civics in general and virtually no knowledge of the judiciary except what they see on TV,” she said. “Our hope is that [the project] will make a difference and that students will come to know and understand this third branch of government and become more informed voters and participants in our democratic process.”

Expanding students’ knowledge of the First Amendment is an important part of that effort, said Warren Watson, director of J-Ideas, a First Amendment institute at Ball State University.

“I think that there’s nothing more important than learning about being a good citizen and being involved, and the First Amendment is really the best place to start,” he said.

A study on the “Future of the First Amendment” indicates that students do not have a solid foundation in understanding First Amendment principles, Watson said.

Despite increases in the number of First Amendment classes from 2004 through 2006, nearly three-fourths of students take the First Amendment for granted or do not know how they feel about it, according to the 2007 survey, conducted by David Yalof and Ken Dautrich of the University of Connecticut. And students’ level of support for constitutional rights varies depending on how relevant they feel the rights are to their own lives, the study reports.

A 2007 First Amendment Center national survey on the “State of the First Amendment” found similarly vague knowledge about the rights guaranteed under the First Amendment.

Seventy-four percent of those surveyed would prevent public school students from wearing a T-shirt with a slogan that might offend others, even though the Supreme Court has repeatedly said, even in the school setting, that mere “offensiveness” does not remove speech from the protection of the First Amendment. And 25 percent of Americans said “the First Amendment goes too far in the rights it guarantees.”

Gene Policinski, vice president and executive director of the First Amendment Center, in a statement released with the study’s findings, said the results “endorse the idea of more and better education for young people ‘ our nation’s future leaders ‘ about our basic freedoms.”

The “Our Courts” project aims to do just that. Hinde said “Our Courts” will embrace students’ “21st-century skills” to engage them in civics education and appeal to teachers wanting something more than just a textbook from which to teach.

“We have teachers lined up, literally, who are willing to participate and test run the program and work out early kinks,” Hinde said about Arizona educators.

The pilot project is tentatively planned to begin in Arizona, Virginia and New York City, with a prototype of the first free-speech module scheduled for release in December 2008.

Taylor said “Our Courts” hopes to have the module fully functional by spring 2009, thanks to funding from numerous charitable foundations.


Fall 2008, reports