Court Reinstates Students' Speech Suit Over Button Ban

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A federal appeals court has reinstated a lawsuit against an Oregon school district by two students who were suspended for wearing buttons protesting the hiring of "scabs'' during a teachers' strike.

In returning the students' suit to a lower court, however, a panel of the U.S. Court of Appeals for the Ninth Circuit set a standard for reviewing student speech cases that a dissenting judge said "erodes important First Amendment protections.''

The case stems from a 1990 teachers' strike in McMinnville, Ore., during which the district hired replacement instructors to keep schools open. Two students whose fathers were among the striking teachers, David G. Chandler and Ethan R. Depweg, wore several buttons to school to support the strike, including ones bearing the slogans "I'm not listening scab'' "Do scabs bleed?''

The students were suspended for a day when they refused to remove the buttons at the request of the vice principal, who said the slogans were disruptive. The next day, the students wore buttons with the slogans, "Scab we will never forget'' and "Scab'' within a red circle and slash symbol. When the vice principal again threatened Mr. Chandler with disciplinary action, he removed the buttons.

The two students filed a federal suit alleging that the school's actions violated their constitutional rights to free speech and free association. A federal judge dismissed the suit at the request of the school district, ruling that the slogans were "offensive'' and "inherently disruptive.''

The judge cited the U.S. Supreme Court's 1986 decision in Bethel School District v. Fraser that school officials could discipline a student who gave a vulgar speech during a student assembly.

Speech 'Arguably Political'

The students appealed to the Ninth Circuit Court, arguing that their wearing of the buttons should be protected under the High Court's 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld students' rights to wear black armbands in protest of the Vietnam War.

In an Oct. 28 ruling, the three-judge appellate panel ruled that the word "scab'' as used on the students' buttons could not be considered "vulgar, lewd, obscene, or plainly offensive'' under the Fraser precedent.

The panel then considered whether the buttons could be suppressed under the Tinker standard because the McMinnville school officials could reasonably forecast that the slogans "would substantially disrupt, or materially interfere with, school activities.''

But the panel held that the school district did not present any evidence that the "scab'' buttons were inherently disruptive.

"In a case such as this one, where arguably political speech is directed against the very individuals who seek to suppress that speech, school officials do not have limitless discretion,'' said the opinion by Chief Circuit Judge J. Clifford Wallace.

The panel said that school officials now may be able to present the district court more evidence that the buttons were "insulting'' or directed at the replacement teachers in a disruptive manner, and thus could prevail in having the suit dismissed.

Three-Way Standard Set

In ruling on the students' case, Judge Wallace also set a standard for evaluating student-speech cases that creates a test drawing on three High Court precedents in this area: Tinker, Fraser, and Hazelwood School District v. Kuhlmeier, in which the Court held that school officials could exert reasonable control over a school-sponsored newspaper.

The judge said that the standard for suppressing vulgar, lewd, obscene, and plainly offensive speech should be governed by Fraser, school-sponsored speech by Hazelwood, and all other speech by Tinker. The panel's opinion creates a precedent in the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State.

Circuit Judge Alfred T. Goodwin agreed that the case should be returned to the district court, but he argued that the "majority opinion erodes important First Amendment protections.''

Judge Goodwin said the majority was too quick to extend the Fraser standard to all vulgar, lewd, or obscene student speech regardless of whether it stems from a school-sponsored forum, as the student's vulgar speech in the Fraser case did.

The majority also "gives credence to a mischievous notion that there exists a subclass of words that are 'inherently disruptive,''' he said. "I doubt that it would be either workable or desirable for judges to construct a list of words that one cannot say in school.''

Ivan Gluckman, the director of legal services for the National Association of Secondary School Principals, said he agreed that this kind of case should be governed by the Tinker analysis. But as to whether he would advise school principals to forbid strike-related buttons, "it is just going to depend on how reasonable the apprehension of disruption is,'' he said.

Vol. 12, Issue 10

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