By Cara L. Gallagher, weekend contributor
On Monday, the Supreme Court nixed a request from three teenagers to hear their case against Morgan Hill School District. The court’s denial to hear Dariano v. Morgan Hill ended an effort to overturn a lower court decision that supported the school’s right to prohibit the boys’ from wearing t-shirts displaying the American flag on Cinco de Mayo. This case reflects a consistency in the Court’s history of showing great deference to school administrators and districts since the landmark student speech case Tinker v. Des Moines (1969). Mary Beth Tinker and her brother won the right to wear anti-Vietnam armbands in school in that case. Tinker would be the high point for young people, the last celebrated Supreme Court victory for youth free speech advocacy. Since then, federal court decisions, or the lack of intervention by refusing to hear cases like Dariano, have resulted in significant restrictions on student speech in public schools. Forty-six years later, expressions of speech are more nuanced, savvier, and the topics just as controversial. If there was ever an audience of people hungry to see a contemporary free speech case at the Supreme Court, it’s high school students.
One came close to a Supreme Court appearance last year.
The Easton Area School District in Pennsylvania filed a writ of certiorari to the U.S. Supreme Court asking the Court to overturn the Third Circuit Court of Appeals’ decision in B.H. v. Easton Area School District.
Two middle school girls – Kayla Martinez and Brianna Hawk (B.H.) – sued Easton School District for infringing upon their 1st Amendment rights after both were suspended for wearing the “I Heart Boobies” bracelets despite prior warnings. The girls claimed they were raising awareness about breast cancer by supporting the Keep Breast foundation, the organization that sells the armbands. The school district claimed the armband’s message wasn’t appropriate for students to advertise. I’m guessing the word “boobies” is the content they were most uneasy with.
Bold move by two brash millennials fighting the good fight in the name of free speech, or an overzealous school administrator thwarting student speech?
It’s hard not to look at the picture of the two adorable, cheeky “activists” and not agree with the latter rather than the former. The Supreme Court did not grant cert in this case either, allowing the lower Court ruling to stand. Similar to Tinker, there is the awareness component in the Easton case that the 1st, and schools with a healthy civic education program, would seemingly embrace. There’s something inherently incongruent when schools, often called the incubators of democracy, teach the very rights and liberties they later discipline.
But if we change the content of the speech, does your opinion change?
One case that actually made it to the Supreme Court called Morse v. Frederick challenges the answer to that question. You might know it better as the “Bong hits for Jesus” case from 2007 in which Joseph Frederick, a high school student, sued his school for violating his free speech rights.
Frederick was suspended for displaying a banner* with the aforementioned quote at a school-sponsored event in Juneau, Alaska. Frederick lost in the SCOTUS in a 5-4 decision that ultimately affirmed schools’ and administrators’ power to ban student speech that supports illegal activity (like drugs or drug paraphernalia) and “disrupts the learning environment.” The decision was an obvious victory for administrators, deans, and teachers, but dealt a serious blow to students and their free speech rights.
Prior to Morse was a similar school speech – Bethel v. Fraser (1986) – in which Matthew Fraser delivered the following speech to an audience of 9th-12th graders stumping for a friend who was running for a class election:
“I know a man who is firm – he’s firm in his pants, he’s firm in his shirt, his character is firm – but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts – he drives hard, pushing and pushing until finally – he succeeds. Jeff is a man who will go to the very end – even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he’ll never come between us and the best our school can be. He is firm enough to give it everything.”
Fraser lost in the Supreme Court. The Justices found his use of sexually vulgar language inappropriate where children are held in a captive audience.
Having a background in teaching myself, it’s easy to understand the priority schools have to preserve a safe and productive learning environs for minors. Plenty of case-law supports the role adults in schools play via in loco parentis giving them great authority to restrain behaviors – sometimes, like in the Dariano case, preemptively – they believe jeopardize the environment. But, as arbiters of democracy fanning the flames of active participation in my students’ quest to flex their rights, it’s hard not to sympathize with the kids.
When I teach Morse or Fraser, I always ask the students if this was the case they wanted the SCOTUS to answer a critical 1st Amendment question regarding their speech rights in school? A majority of students vocalize a fervent desire to see student speech advocated for and an equally, if not stronger, frustration over the content of the speech in the cases that have made it to the Supreme Court. Kids don’t like the idea of other kids wasting 1st Amendment cases on words like “bong hits” or even sexual innuendo. They know how hard it is to be taken seriously and deride the actions and speech of one “immature” outlier as misrepresentative of who they are. They take the majority of school speech cases, with the exception of Tinker v. Des Moines, and frustratingly ask “Why’d it have to be these cases the Supreme Court decided?!” They’re still waiting (hoping) for the one that will curb further encroachment into their individual freedoms and rights.
*Go see the actual banner he carried at the Newseum in Washington, D.C. It’s huge; maybe 8-10 feet long. You have to look above the 1st Amendment exhibit walls, almost up on the ceiling, to find it. I’m guessing that decision was purposeful so 3rd-grade field trip chaperones don’t have to worry about explaining the message to their students.
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