December 2015 Podcast: Students' First Amendment Rights in Schools



Catherine Ross, law professor at George Washington University, discusses her new book "Lessons in Censorship: How Schools and Courts Subvert Students' First Amendment Rights." 

Frank LoMonte: Welcome to another edition of the Student Press Law Center monthly podcast. I’m Frank LoMonte, executive director of the Student Press Law Center. The SPLC is an advocate for the rights of student journalists in K-12 schools and colleges, and we maintain a library of resources of use to those working in student media online at www.splc.org. This is an unusually active time for student free speech rights. As we’re recording this podcast, John and Mary Beth Tinker of the famous Supreme Court Tinker case are winding down a week of commemorative activities in Des Moines, Iowa marking the 50th anniversary of their anti-war protest which led to the landmark Tinker Supreme Court case decision. Even as that is going on, petitions are being filed with the Supreme Court to review a case called Taylor Bell vs. Itawamba School Board. In that case, the Court is being asked for the first time to determine what the extent school’s discipline authority might be over student speech that is posted off-campus on their personal time. And finally up against all of that, a movement called New Voices is taking shape all across the country, partly under the sponsorship and guidance of the Student Press Law Center to enact state laws that reverse the impact of the Supreme Court Hazelwood v. Kuhlmeier decision and that restores some balance to the governance of student media. More information about that campaign is available at newvoicesus.com.

Our guest today, Professor Catherine Ross, has a very timely new book out titled “Lessons in Censorship.” Professor Ross is with the George Washington University School of Law where she specializes in constitutional rights. She has three degrees from Yale University including her law degree. She was employed there as a professor prior to law school, she is a very widely quoted and published expert on the constitutional rights of young people which has been an area of speciality for her. We are so thankful to her for joining us and for publishing this really valuable new work which sheds light on the state of student First Amendment rights and how they might be deficient and how they might be improved.

So Professor Ross, with that, thanks so much for joining us and please start us off by describing the premise of your book, “Lessons in Censorship,” and where your interest in this subject in student free expression rights comes from.

Catherine Ross: Thanks Frank, it’s really a pleasure to be here with your audience and with you. The book is really at the intersection of my two long-standing scholarly passions — the First Amendment and the rights of minors. And at an emotional level, my father came here with his family as a teenager fleeing the Nazis, and he often talked about the day he became a U.S. citizen and how moving it was. He really took the promise of America very seriously and of the freedoms we get here that he had not had before, and I really absorbed that at a young age, at a very primal level.

But the First Amendment is really the key to liberty and democracy because if we don’t have free expression, we don't know our rights, we don’t know when they’re being violated, we can’t dissent and we can’t demand change. Just as Brandeis said, the founders believed that liberty was the secret of happiness, and courage is the secret of liberty. To be happy as a human being is to have fully developed sense of who you are in the world — you need information and you need the right to make choices and to be different from other people, to not be a conformist. And it takes some courage to stand up and use your First Amendment rights as high school students and younger are doing every day when they fight for their First Amendment rights. So the premise of my book is that schools have abandoned one of the functions that we as a democracy have long counted on them to perform, which is to train students on the meaning of democracy — including the meaning of the rights guaranteed by the Constitution to learn why those rights matter and how to exercise them responsibly. And one of the ways you learn to do that is by experiencing them and living them in schools. We have to remember that schools are the government institution that has the most contact with average citizens, next perhaps to traffic courts. Between 85 and 90 percent of our children go to public school and this is our opportunity as a society to inculcate them in the values of democracy including the First Amendment. So I think that besides the precise focus of my book on speech rights in schools, my book is also about the peril of democracy if we don’t raise citizens who understand rights and what’s at stake.

Unfortunately the opening vignette of my book involves a girl who was handing out leaflets in front of the school and one of the ironies was that she was handing out leaflets to protest that her friend had been suspended for making a video that she was opposed to bullying. I’m going to repeat that, opposed to bullying. [laughs] But she was suspended because a parent complained, which is often what happens. The friend who was leafleting was stopped by a school official who said, and I quote, “You lose all constitutional rights when you enter a school building.”

LoMonte: [Laughs]

Ross: That couldn’t be further from the truth. We have more than half a century of Supreme Court decisions saying that you absolutely have rights when you enter a school building, whether you’re a student or a teacher and our focus, of course, is on children. That quote also suggests to me — and I can say this in an informal setting like this conversation, though I don’t say it in the book where I’m a little more lawyerly — the idea that you lose all constitutional rights when you enter a school building to me is quite reminiscent of the sign at Dante’s entrance to hell. Lose all hope ye who enter here! And unfortunately that’s how a lot of kids these days feel about school and many of its aspects.

Part of my book is to show the rampant violations of student speech rights and why they matter, but I try not be just in the posture of a critic or a finger pointer because I’m also very sensitive to the fact that educators need to be sure that students learn in schools, they need a certain degree of discipline and decorum, they need to protect students from what Justice Breyer once said is a potentially dangerous environment. Kids have no choice, they have to be in school. So I’m sensitive to some of the reasons for the violation of speech rights. One is the [area of law] is a very complex, very fragmented, and often hard to understand and apply. And one of the problems is that trial court judges often throw up their hands and even appellate court judges, and they say oh this is such a complicated area of law, how am I supposed to know? Well if judges are saying that, we can’t really expect a principal who’s not a lawyer to be fully on top of all the nuances. Some educators are justifiably confused.

LoMonte: With regards to your observation about the way that lower courts interprets the First Amendment in schools, we’ve always been told that in the law of the First Amendment that if the law is unclear and if there is a close judgement call to be made, then the benefit of that lack of clarity must always go to the speaker — that if the speaker could not figure out in an exercise of reasonable judgment whether their speech was or wasn’t protected by the Constitution, then that’s the answer. The answer is that it is protected because there is a lack of clarity. But yet when the regulator is a school and when the speaker is a student, it seems quite commonplace now for all of the benefit of the doubt now to go to the government regulator which is quite different than First Amendment doctrine anywhere else outside of a school.

Ross: That is a terrific point, Frank. In the school, that idea is turned on its head and the benefit goes to the administrator even if the court says this was a violation of students’ rights and we’re going to grant the student some relief like expunging disciplinary sanctions from the student’s permanent record, which is one of the major reasons students go to court, but we’re not going to really hold the school principal accountable because there was never a set of facts that looked exactly like this. So we’re not going to expect them to be able to extrapolate from the general doctrine and the principles of the law. And I take the view that we should be able to understand what the meaning of the law is and what it is trying to accomplish in terms of speech rights even in schools. Even when the law is clear though, we find that sometimes administrators just overlook it. So let me just say a few things about the current state of the law for listeners who may not be following your podcast every single month, although I know that many people follow them religiously. 

Where the law is clear — here is sort of the quick and dirty. If it's personal or what I call pure student speech governed by the famous case Tinker v. Des Moines, the school cannot censor it unless the school reasonably anticipates that the speech will cause material disruption of the educational function of the school. And then the Court subsequently carved out a few exceptions — the first doesn’t really come up that commonly because the school just about always wins: the school has the right to discipline and censor lewd speech, but it has to have sexual overtones. And there the point is the school can teach civilized manners of speech but it can’t censor the ideas. The biggest exception is Hazelwood v Kuhlmeier, which involves a student newspaper that was done as part of a class for credit, but the Court went far beyond what happens under close supervision and said that if speech is school sponsored, in other words, it appears to have schools’ incriminatory …. or as Justice Alito once put it very clearly, it appears to be the school’s own speech. Then the school can censor it at its discretion for any legitimate pedagogical reason. But schools almost always win and this is the legal standard, but there are two important arguments that can be made and perhaps aren’t made often enough.

It must appear to be the school's own expression and they have to have a reason besides the fact that they don’t like the idea, except in a couple parts of the country where the appellate courts have said that schools can discriminate based on viewpoint when applying this type of censorship. And finally in the most recent case, the Court said the schools can censor speech that appears to promote the use of illegal substances like drugs unless the speech is political. One of the things my books does is first explain the law where it’s clearer, where the Supreme Court has not resolved an issue on which the lower courts are divided and I try to identify those questions and issues and then I try to pose a solution that's in keeping with the First Amendment goals of Tinker and the cases subsequent to Tinker that would bring some coherence to this area of law, so that principals will no longer be able to say, I have no idea.

LoMonte: Well probably the single biggest issue making its way through the federal courts right now, one I touched on in the opening in reference to the Taylor Bell case, is the extent of schools’ or colleges’ punitive authority over off-campus internet speech on social media. That is speech not created using school devices or school time and I’m wondering from your perspective, where is the proper line? Where should schools’ punitive authority begin and end? 

Ross: This should be a really simple question but like so many other things in this area, it turns out not to be. Let me here divide very clearly the K-12 students from the university students. University students are adults and their off-campus activity should be fully protected unless there’s some kind of contractual arrangement or notice — I don't know, if its a contractual matter, a school might be able to say if you get this kind of scholarship, we expect a certain level of behavior from you no matter where you are because a scholarship is a privilege — but being kicked out of college for speech that’s protected on the internet seems really out of bounds.

It’s a bit more complicated and intellectually very interesting when we get to the K-12 students. You’re right, schools have increasingly been asserting authority to discipline students for what they say off campus and often that takes place online. And sometimes they do that in response to directives from the state legislature where the statutes say the schools have to take care of people who bully each other even if the bullying occurs off-campus. Well that’s a violation of the First Amendment, but it's also statuted so the educators feel a little bit stuck between a rock and a hard place, and those statutes should be challenged in court.

If we go back to the rationale of the Tinker case which first said there’s a lower or easier-to-satisfy standard for inhibitions of student speech. We have to think about the basic premise for having a special set of rules in K-12. And the court’s reasoning was there is something unique about schools that isn’t true in the rest of the world. One of the things is that students have to be there, as I said before, because of compulsory schooling laws. But also the court talked about the special environment of the school and the special mission that was entrusted to public schools. The special environment is in order for the activity that’s going on there, which is serving an important government function successfully, there has to be a certain level of order. And unlike other environments, people can’t just walk away. They have to stay there, they have to do the work of the school. Equally important the court said is the role of the school for training students for the life in a democracy and that requires open discussion. People have to get used to the marketplace of ideas but there has to be a line that won’t be crossed because of the school’s special environment. And that line has nothing to do with the ideas being expressed, that they might upset another student — it’s only when the words of the speaker are such that the school has evidence or a reasonable basis to say we’re afraid this will prove materially disruptive so we can’t perform our educational function. If that’s the reason for giving students less speech rights in school than outside of it, it clearly doesn’t apply to the speech students were using outside of school. And we have another concern with minors which is that parents also have authority over students. There’s a part of the day when students are in school and they’re subject to the authority of the state and there’s a part of the day when they’re at home or not in school, wherever they are, and subject to the parent’s authority unless they violate the law, in which case they can be taken to court as juvenile delinquents or status offenders. That was always a very clear division. And the Supreme Court has not weighed in on this and the lower courts are a bit divided, but none of them take the viewpoint that student speech off-campus is subject to school discipline as if it occurred on campus.

The most the courts are prepared to say is if the speech appears to be aimed at the school, if there’s a close link between the speech and the school, and there’s going to be a likelihood of material disruption under a very strong level of evidence that’s perhaps even higher in some circuits than apply in school, then perhaps the school can discipline and the test would be Tinker, which is the test that’s most supportive of student speech and that would have to be resolved.

You mention the Bell case which is very interesting because in Bell, which some people have said stands for the principle that schools can regulate off-campus speech, I think it’s a little more complicated because the appellate court sitting en banc and reversing the two decisions before it say that they thought Bell’s speech amounted to a true threat and true threats are not protected by the Constitution, by the First Amendment. They are a very special and very small small group of cases that lose their First Amendment protection because the harm is so identifiable.

LoMonte: That would be certainly the most glass half-full way to read that case from a students’ rights perspective, that it came out of a finding that the school could discipline the student rapper for his off-campus video because it contains such explicit references to violence involving particular targeted individuals [at school]. One might hope that’s what the lower courts will take away from that case, rather than police all social media speech as if it was taking place on campus. 

Well our guest is Professor Catherine Ross, the author of “Lessons in Censorship.” Just with the couple of minutes we have remaining, Professor, I just want you to take a crack at what is going on with college campuses these days. We’ve just been through a series of protests on college campuses, chiefly at the University of Missouri, where we saw actual students getting involved and trying to restrain student media coverage, aided in Missouri’s case by some very vocal faculty members. There have been a number of colleges around the country where there has been pressure brought by students to defund student media publications they deem offensive to them. There seems to be kind of a moment here in history where free speech is not especially popular on college campuses. This pressure is coming from all ideological viewpoints, there’s no more operating on the left or the right. What is going on in college campuses and do you see a way clear of it?

Ross: Well there are two points to that question. The first is I think a big part of that question is they didn’t learn about freedom of speech and the fact that we all take the risk to being exposed to views we don’t like, that’s part of the marketplace of ideas. Schools have been far too aggressive in trying to protect the most sensitive and to say if it's controversial or unpleasant or it's not tolerant, than you can’t do it at school and part of the problem with being a pluralist democracy is even the intolerant have rights. They are making a political statement, it might not be the one you and I like but they have the right to make it. So students have been protected from that. They haven’t learned the reasons why we need to allow controversy and they have been too accustomed to both administrators and parents coming into school and complaining. And saying that t-shirt offends me, the slogan on it is horrible, tell that kid to take it off, and the principal, taking a very short-sighted view of the immediate problem, says take that t-shirt off, instead of saying I’m sorry but that kid has a right to wear it. And maybe then having an assembly and explaining to everyone why people get to wear slogans that we may not like. So they come to college and they don’t really know enough about this, and I think that’s a huge problem.

And then college administrators also have some blame to bear and instead of saying here are the demands that we can discuss with you without the risk of violating the First Amendment….

LoMonte: We’re going to have to end our conversation there and thank Professor Ross and encourage everyone to look up her book “Lessons in Censorship,” just published by Harvard University Press. And for those with more questions about the Bell case or any issue involving the First Amendment rights of students, please join us next month on the SPLC podcast and do visit the splc.org website if you have a legal question or concern or need help protecting your own First Amendment rights. Thanks so much for listening and we’ll talk to you next month. 


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