Speech Codes Tread Line Between Student Protection, First Amendment

By Peter Schmidt — December 02, 1992 8 min read

When members of the Fairfax County, Va., school board set out this summer to update the district’s policy against verbal harassment, they soon found themselves caught in the middle of a battle between conservative parents and a group called Queer Nation.

Responding to concerns that verbal harassment was causing some homosexual students to drop out of school, the board had at first considered adding “sexual preference’’ to a list of reasons why students should not disparage each other.

That brought strong complaints, however, from some parents, who argued that the new policy in effect condoned homosexuality.

Pushed at the same time from the other side by gay-rights activists, the board last month compromised by changing the code to ban abuse based on “matters pertaining to sexuality,’' which members said protected all students from sex-based harassment.

The controversy in Fairfax County is typical of the debates that have occurred in school districts across the country in recent months as officials struggle with the question of how to protect students from certain forms of abusive speech.

Backers of speech codes say they are needed to guard students against harassment in schools that interferes with their efforts to learn and deprives them of the same educational opportunties afforded their peers. But critics contend that the restrictions infringe on First Amendment rights to free speech.

“It is very difficult to craft a code that gets at every offensive incident or every offensive use of language, both practically speaking and without running afoul of people’s rights to express themselves,’' observed Steven M. Freeman, the director of the legal-affairs department for the Anti-Defamation League, a civil-rights group that discourages the use of speech codes.

New District Policies

Districts that recently have moved to develop speech codes protecting specific groups or strengthen existing policies include:

  • Howard County, Md., where the school board in October passed an anti-defamation policy for students after being faulted by the Maryland Commission on Human Rights for inadequately responding to several racial incidents.

The policy broadly prohibits verbal and physical abuse and specifically bans such abuse based on “race, color, creed, religion, physical or mental disability, national origin, gender, or sexual orientation.’'

First-time violators must receive counseling and take part in educational activities, while a second offense can lead to suspension and repeated offenses to expulsion.

  • St. Paul, where the school board in October overwhelmingly approved a policy banning various forms of racial harassment and bias, including the display or circulation of racially derogatory materials or pictures.

The policy also bars institutional racial bias in such areas as curriculum, instructional methods, and student placement.

  • Monroe County, Ind., which recently began enforcing an anti-defamation policy. Jack M. Bowman, the district’s superintendent, said the policy was used to discipline one student who had called another “an inappropriate name which could be construed as racist.’'

Backlash in California

But even as some districts are considering speech codes, others are under pressure to weaken them.

Largely in response to controversies over speech codes at its universities, California this fall enacted a law protecting all students, including those in elementary and secondary schools, from being disciplined for speech that, outside of school, would be protected by the First Amendment.

The measure, passed overwhelmingly by the legislature, was backed by a wide range of groups including the California Teachers Association, the state newspaper-publishers’ association, and the state chapters of the College Republicans, Young Democrats, and American Civil Liberties Union.

As a result of the new law, the Los Angeles school district will need to review the legality of a speech code it adopted in 1988, said Howard Friedman, a staff lawyer for the district.

The Los Angeles code, barring taunts and slurs against certain groups, was used by board members to discourage the verbal abuse of students of Middle Eastern heritage before and during the Gulf War.

College Codes Under Attack

While many schools and districts have had speech codes in place for several years, the codes generally only ban obscenity, profanity, or harassment. Most do not specifically proscribe “hate speech’’ or the harassment of certain groups, said Ivan B. Gluckman, the general counsel to the National Association of Secondary School Principals.

Speech codes protecting specific groups of people are far more common in higher education, where they have been adopted by more than 200 colleges and universities, according to Alison G. Myhra, an assistant professor of law at Texas Tech University.

But even as many precollegiate educators are considering speech codes, advocates of such codes in higher education appear to be losing ground to critics who charge that the codes stifle intellectual debate.

Speech codes at the University of Michigan and the University of Wisconsin have been rejected by federal district courts in recent years as unconstitutionally broad and vague in their limitations on free expression.

And legal experts perceived the U.S. Supreme Court as severely undermining most college speech codes when, in June, it struck down a St. Paul city ordinance outlawing acts that arouse “anger or alarm’’ based on “race, color, creed, religion, or gender.’'

The Court’s decision in R.A.V. v. St. Paul, a case involving the burning of a cross on a black family’s lawn, declared the city’s ordinance unconstitutional under the First Amendment because it prohibited certain speech based on content, while tacitly allowing abusive speech against groups that were not specifically protected.

‘A Lot More Latitude’

Despite legal setbacks at the collegiate level, however, speech codes appear to be on far more solid legal ground when implemented in elementary and secondary schools, several legal experts said.

“Principals have a lot more latitude to regulate what happens in the classroom and on the school grounds than do college administrators on their college campuses,’' said Steven M. Janosik, an associate dean of students at Virginia Tech University who teaches a course on higher-education law.

In an article published in the 1992 North Dakota Law Review, Ms. Myhra of Texas Tech examined public school bans on hate speech and concluded that they are buttressed by Supreme Court precedents.

Discriminatory actions that interfere with learning, Ms. Myhra said, have been seen as violating students’ 14th Amendment guarantee of equal protection and as subverting the egalitarian principles underlying public education.

The landmark Brown v. Board of Education, she noted, based its finding that separate schools were unequal, and therefore unconstitutional, largely on the idea that students are impaired in their learning if they harbor feelings of inadequacy as a result of being discriminated against.

Schools’ Parental Role

Although similar arguments have lost out to First Amendment considerations in cases involving college speech codes, free-speech considerations are widely regarded as holding less weight when applied to precollegiate cases or cases involving children.

The Supreme Court has given concern for the welfare of children precedence over free-speech considerations in cases involving pornography or indecent radio broadcasts, Ms. Myhra said. It generally has regarded children as needing more protection against speech because they are more vulnerable and less able to think critically, Mr. Janosik noted.

Moreover, the law regards precollegiate educators as having a strong parental role, with corresponding obligations and rights to protect children from harm, observed Robert P. Baine, a lawyer who represented the Hazelwood, Mo., school district before the Court in a landmark 1988 student-speech case.

The Court has allowed principals to restrict speech that will disrupt classwork or result in disorder, thus clearing the way for lower courts to permit administrators in districts filled with racial tension to bar the Confederate flag as a school symbol or “Dixie’’ as a school pep song.

Public schools also have been given significant authority to teach and uphold basic democratic values. The board of the Northshore School District in Bothell, Wash., for example, cited a need to uphold community values when it moved last year to step up enforcement of the district’s ban on hate speech in response to cross burnings and other racial incidents.

‘A Slippery Slope’

While there may be a sound legal basis for precollegiate speech codes, the experience of Fairfax County illustrates that there also are numerous pitfalls for those who try to write such codes, experts said.

“It is a slippery slope to start trying to spell out categories’’ of who is protected from derogatory speech, Mr. Gluckman of NASSP observed. Attempting to do so can lead administrators into a political “morass’’ or leave them having to automatically give out punishments that do not fit the violation, he added.

“It seems to me that the correct way to go about it is just to have a general policy that prohibits kids from harassing each other,’' Mr. Gluckman said. “Why is it any more proper to harass a kid for being fat or short than for his or her sexual preference?’'

Michael P. McDonald, the president of the Center for Individual Rights, a public-interest law firm that has defended several college students and professors who ran afoul of speech codes, said his organization would challenge a precollegiate speech code that only protected certain groups of students and was used to suppress viewpoints expressed in a civil manner.

“From our perspective, it boils down to the same issue it does on the college and university level,’' said Mark Goodman, the executive director of the Student Press Law Center. “We believe there is a potential for these policies to be used to justify censorship of student publications.’'

Bowyer G. Freeman, who helped develop the Howard County speech code as president of that county’s branch of the National Association for the Advancement of Colored People, said the policy distinguishes between offensive speech that students direct at each other and offensive speech they use in an academic context, such as a story written for an English class.

“It is trying to walk that tightrope’’ between protecting students and protecting free speech, Mr. Bowyer said.

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A version of this article appeared in the December 02, 1992 edition of Education Week as Speech Codes Tread Line Between Student Protection, First Amendment