Federal rulings in Florida, Michigan push back against Hazelwood's advancing tide



When a student voices a personal opinion during school -- even during class -- that opinion is entitled to a high degree of First Amendment protection, and it may neither be proscribed nor punished absent concrete evidence that it provoked a disruptive reaction or was imminently likely to do so.

That has been the law for some 44 years, since the Supreme Court decided Tinker v. Des Moines Independent Community School District. Yet school attorneys continue attempting to wipe Tinker off the lawbooks by urging courts to instead view students' on-campus speech as being part of the school curriculum and thus governed by the far more censorship-friendly legal standard of Hazelwood School District v. Kuhlmeier.

In a pair of recently released rulings, federal district judges in Michigan and Florida have properly rejected attempts to expand Hazelwood beyond its intended confines -- when a student uses a school-subsidized means of communication that might cause listeners to believe the student was speaking on behalf of the school.

On June 19, a federal judge in the Eastern District of Michigan decided a teacher could be held liable for violating the First Amendment for throwing two students out of class when, during a discussion about bullying, they indicated that their Christian religious beliefs made them unable to "accept" gays and lesbians.

The suit was brought by two brothers, a high school junior who was one of the two punished students, and his younger brother, a freshman at the same school, who said he was intimidated from speaking out about homosexuality because of what happened to his brother.

U.S. District Judge Patrick J. Duggan found that the students were entitled to the high degree of First Amendment protection recognized in the Tinker case for expressions of individual opinion. He summarily rejected the school's contention that, because the speech took place during class, it should receive the greatly reduced level of protection recognized in Hazelwood:

When student speech is or appears to be sponsored or endorsed by the school, school officials have more authority to regulate that speech. ... The speech at issue in this case does not fall within the category of school-sponsored speech and [Hazelwood] is therefore inapplicable.
Finding that no substantial disruption occurred or was reasonably likely, Judge Duggan ruled in the students' favor as to their claims against the teacher (although not against the school, which promptly disassociated itself from the teacher's actions by reprimanding him at the time).

Judge Duggan's ruling is consistent with that of a U.S. district court in Tampa, which likewise decided last October that Tinker, not Hazelwood, governed the claims of an elementary-school student who was prevented from distributing invitations to an Easter party.

The student, a fourth-grader at Lewis Elementary School, was ordered not to hand out flyers for an Easter-egg hunt that indirectly referenced religion, on the grounds that the principal believed the student was violating a district rule against "proselytizing" speech.

The school argued for the censorship leeway of Hazelwood, using circular reasoning that -- if accepted by the court -- might have spelled the beginning of the end for Tinker. School attorneys argued that, because the school required students to get literature pre-approved by the principal before distributing it, the invitations thus would appear to be school-approved -- and their message, in the school's contention, attributable to the school.

That view would of course result in censorship always being self-validating -- the more controlling you are, the more controlling you are entitled to be. Had the school prevailed on this point, every school lawyer in America would have been busily drawing up a blanket prior-approval policy governing all student speech.

But U.S. Magistrate Judge Elizabeth A. Jenkins of the Middle District of Florida thought otherwise.

In a ruling dated Oct. 5, 2012, but only recently published, Judge Jenkins rejected the school's "because we censored it, we get to censor it" argument: "Simply put, J.G.'s invitations cannot be categorized as school-sponsored speech because they are not connected to any curricular activity."

The judge also rejected the school's equally dangerous fallback argument, that a school may censor even non-disruptive speech if a student is communicating in a part of the school that is not set aside as a "public forum" for expression. Federal courts typically categorize government property according to its suitability and historical use as a place for public discussion. If property is a "non-forum" (not a place amenable to wide-open expressive use), then the government generally may enforce "reasonable" limits on what is said, so long as the limits do not pick-and-choose among viewpoints.

But the rules are different in school, because of Tinker. In the Tinker case, student protesters wore their anti-war armbands everywhere throughout the school day -- hallways, cafeteria, classrooms. The Supreme Court gave no indication that their right to protest came-and-went depending on which part of the school building they were standing in.

Together, the Florida ruling (Gilio v. School Board of Hillsborough County) and the Michigan ruling (Glowacki v. Howell Public School District) indicate a heartening ability of federal judges to differentiate individual opinions from school-subsidized messages. These rulings are true to Hazelwood's oft-forgotten core distinction that, "The question whether the First Amendment requires a school to tolerate particular student speech ... is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech"

Tagged: First Amendment, First Amendment, school censorship, Tinker v. Des Moines Independent Community School District