Talking politics on campus
Historical election raises questions about political speech at schools
During the year marking the 40th anniversary of the landmark Tinker v. Des Moines Independent Community School District decision that gave high school students the right to free speech inside the schoolhouse gates, controversy surrounding another historic event ‘ the election of President Barack Obama ‘ put Tinker’s promise of free speech under strain.
The plaintiffs in Tinker were suspended from school because they refused to remove black armbands, which were symbolic of the request for a cease-fire in the Vietnam War. The U.S. Supreme Court noted that these students were singled out among other students who wore politically charged paraphernalia in the classroom, such as buttons, and ruled that “the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.”
The Tinker decision required schools to point to some “substantial” disruption to legitimize censorship, which meant that in order for “school officials to justify prohibition of a particular expression or 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.”
Forty years later, the election of the nation’s first black president created controversy involving students’ right to speak about Obama while inside the schoolhouse gates.
Kevin Bright, superintendent of the Mason City School District in Mason, Ohio, sent a letter home to families of students in the district one week before President Obama’s inauguration in order to “send a message that we were going to maintain order in our schools,” he said.
“After the historic presidential election, we were proud of most of the conversations and the dialogue that took place in our schools,” Bright wrote in his letter. “Unfortunately, we also learned about some disturbing conversations and inappropriate racial comments.”
Bright said there were incidents of racial slurs at several schools immediately after the election in November, and the letter was intended to “take proactive action,” not censor students’ speech.
According to Mason High School staff, pictures portraying Obama as a terrorist were found around school, among other derogatory signage, after the presidential election.
In his letter, Bright said the administrators expected students and staff to “understand that inappropriate comments that may make other students, staff or families feel unwelcome or uncomfortable in school or on the bus will not be tolerated.” In a subsequent interview, he said that the phrase “inappropriate comments” was a cause for concern for some individuals because they felt this prohibited students from expressing themselves.
“It was not a situation where we were trying to withhold a student’s freedom of speech,” he said. “We weren’t out to violate any student rights … it had nothing to do with politics.”
Bright said he received more than 70 e-mails from activists and concerned citizens around the country after the Dayton Daily News reported on the content of his letter. After the fact, Bright said he would have handled the situation differently.
“If we had it to do all over again, we probably would have been more specific and less general when we say ‘inappropriate comments,’” Bright said. “People took offense thinking that they might have been political comments of people that were opposed to the election of Obama or the inauguration of Obama, or opposed to us taking time to watch the inauguration.”
Keith Werhan, chair in constitutional law at Tulane University Law School in New Orleans, La., said that Tinker clearly gave students First Amendment rights and limited school officials’ power to censor student speech.
“You couldn’t punish students because they were making a non-disruptive political statement simply because administrators or other students may disagree with that point of view,” Werhan said.
Bright was not the only superintendent to send a letter after the presidential election regarding political speech.
Gayle Sloan, superintendent of St. Tammany Parish School District in Covington, La., sent letters to the local media, parents and employees of the district after post-Election Day racially charged situations arose at several schools in the district.
“At some of our schools, we had black students getting off the buses, and they were saying some things that were kind of immature,” Sloan said. “There were some cases where students were saying things like, to white students, ‘now you’re our slaves,’ and white students … were saying things back like ‘well not for long because he’ll be killed.’”
There were reports of teachers in the school district banning Obama’s name from being mentioned in the classroom after he won the election. Some reports said students were threatened with punishment if they mentioned his name, although Sloan said no student was ever punished for talking about the presidential election. These reports leaked to the local media, which prompted Sloan to write the letters.
In her letters, Sloan admitted that teachers were wrong in censoring student speech.
“Insensitive remarks made by students as they returned to classrooms following Election Day caused some school officials to discourage discussions that might cause animosity and disruption to the learning environment,” Sloan wrote. “Some students and their parents were upset that students were stifled in this way and saw the reason differently. Any employees who directed students not to speak about the election because they disagreed with the election results were clearly wrong to do so.”
Months later, she said she does not believe the teachers in the school district intended to stifle student speech.
“If you don’t agree with the election, I think you have the right to say that, but I think there is a way to say it and a way not to say it,” Sloan said. “And I think that the teachers felt a line had been crossed with the way things were being said. … Those kinds of inflammatory remarks, I think, go beyond the pale of free speech in a public school classroom.”
Werhan said although Tinker has been narrowed since the decision in 1969, “school administrators essentially can’t censor their students’ expression simply because they disapprove of political messages or because they think other students may disapprove of it.”
Because of issues similar to those in St. Tammany Parish, Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana, sent “an open letter to Louisiana school superintendents” in mid-January.
Esman said she was prompted to send the letter after the ACLU heard reports of incidents following Election Day where students were banned from speaking about the election or mentioning Obama’s name on school grounds.
“We had some concerns that at the time of the inauguration there may be similar kinds of issues come up,” Esman said.
Her letter addressed the historic nature of the election of the first black president and noted some reports of students being punished for mentioning Obama’s name in school and on buses.
“We write to remind you that your students and staff must have the equal right to express their views of this election and inauguration, and must be encouraged to respect the President and the office of the Presidency, whether or not they agree with the individual or his policies,” Esman wrote.
Werhan said that these situations push the limits of the Tinker standard.
“Tinker remains strong as a principle that a school can’t censor the political speech of its students, so if it truly is political speech, if the speech is occurring in a context which is not disruptive of the educational mission of the school or other school activities, then these cases really kind of put Tinker to the test,” Werhan said.
Esman said she received no response from her letter but added that the ACLU did not hear of any problems after the inauguration surrounding political speech.
“To restrict students from talking about the man who is elected president of the United States seems to be a clear violation of free speech rights, and also a very bad educational policy,” Esman said. “I mean what are you going to do, say for eight years or four years we’re not going to talk about the president? You can’t mention his name? That’s craziness.”
Esman commended Sloan for addressing the issue of student speech being stifled in the school district and said it is important to “encourage students to be engaged in the political process.” Esman’s sentiment mirrored that of the Tinker decision ‘ that each student has the right to his or her opinion.
“In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,” the Tinker decision said.
Other students in the country have faced censorship of political speech over Obama’s election.
The principal of Sumter High Hills Elementary School in Sumter, S.C., forbade a fifth grade boy from wearing an Obama T-shirt before the inauguration because she did not want to cause conflict, according to the student’s mother. It was reported that the principal also said the student could wear the shirt after the inauguration.
In Pearl, Miss., a school bus driver and coach at Pearl Junior High School banned students from saying Obama’s name. Both adults were disciplined.
In Spring, Texas, students reportedly were banned from wearing T-shirts reading “Obama Loves Osama BFF” at Klein Oak High School. A school official said students were allowed to wear shirts supporting a presidential candidate, but not if the message creates a disruption.
Werhan said that these situations are a cause for concern about free expression in the schoolhouse.“If Tinker has any vitality, each of these restrictions on student expression are problematic under the First Amendment,” Werhan said. “If anything, the black armbands at issue in Tinker, which students had worn to protest Vietnam War policies, were more provocative than a T-shirt supporting a presidential candidate.”
reports, Spring 2009