High Court Declines Cases on Student Expression

By Mark Walsh — October 11, 2011 2 min read
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The U.S. Supreme Court on Tuesday refused to take up two appeals involving the First Amendment rights of students.

In one, the court declined to hear a challenge to a Tennessee school district’s prohibition against any display of a Confederate flag by students. In the other, the justices refused to hear the appeal on behalf of students who challenged administrators’ removal of a sexually explicit cartoon from a high school newspaper.

In the Confederate flag case, a federal appeals court ruling last November was the latest in a long line of rulings that have backed administrators seeking to prevent racial conflict over such symbols.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had ruled unanimously last year in favor of the Anderson County school system and its bar against students displaying the Confederate battle flag or other representations. The appeals court upheld summary judgment for the school district in a free-speech challenge brought on behalf of a student who was suspended for wearing T-shirts depicting Confederate flags.

The 6th Circuit court said the school district has never completely escaped racial tensions since its schools were desegregated in 1956. Among recent incidents, when a black student displaced by Hurricane Katrina enrolled at predominantly white Anderson County High School in 2005, some students hung a large Confederate battle flag in a hallway, according to court papers.

In their appeal to the Supreme Court, the student and his father argued that the case presented an important test of whether schools may categorically forbid all “racially hostile” speech.

The justices declined without comment to hear the appeal in Defoe v. Spiva (Case No. 10-1513).

The student newspaper case stems from a 2005 incident involving The Tattler, the student paper at Ithaca High School in Ithaca, N.Y.

The faculty adviser of the paper pulled a cartoon featuring stick figures in various sexual positions, as well as an accompanying article by a recent Ithaca High alumnus headlined, “Alumni Advice: Sex is Fun!”

Students appealed to administrators, who backed the adviser. The district’s superintendent said the stick figures “appeal to the prurient interest in sex,” and that the cartoon would raise inappropriate questions in the minds of many students and interfere with the health curriculum’s lessons on sexual abstinence and responsibility.

The students sued under the First Amendment, but both a federal district court and the U.S. Court of Appeals for the 2nd Circuit, in New York City, upheld the school district.

The stick-figure cartoon is “unquestionably lewd” and thus fell under the Supreme Court’s 1986 decision in Bethel School District v. Fraser, the 2nd Circuit court said in a May ruling. And the fact that the paper was school-sponsored was sufficient to trigger the application of the high court’s 1989 decision in Hazelwood School District v. Kuhlmeier, the court said.

The Supreme Court declined without comment to hear the students’ appeal in R.O. v. Ithaca City School District (No. 11-225).

A version of this news article first appeared in The School Law Blog.