Law & Courts

Principals Walk Fine Line On Free Speech

By Darcia Harris Bowman — March 19, 2003 7 min read
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The Dearborn High School principal gave 17-year-old student Bretton H. Barber a choice: He could take off the T-shirt that labeled President Bush an “International Terrorist,” or he could go home.

A card-carrying member of the American Civil Liberties Union, the Michigan teenager refused to remove the shirt, which he said expressed his opposition to war. Instead, he called his parents and left school for the day.

The student says administrators are violating his First Amendment right to freedom of expression by refusing to let him wear the shirt to school. The ACLU agrees, and may file a lawsuit against the district. Superintendent John B. Artis, on the other hand, characterizes the Feb. 17 incident as a violation of the school’s dress code and says the shirt trumpets a message inflammatory enough to disrupt the educational process.

Who’s right?

The answer depends in large part on the judge who eventually hears Mr. Barber’s complaint, legal experts say. But many of those observers argue that even if the courts give the Dearborn administrators the benefit of the doubt, that doesn’t make the 17,600-student system’s actions a model for others.

“There are no freedom-of- expression rights stronger in America than the right to criticize your government—it’s called political speech, and it’s what the nation’s founders had in mind,” said Ken Paulson, the executive director of the First Amendment Center at Vanderbilt University, in Nashville, Tenn. “You have to be cognizant of that as an administrator, and not just respond reflexively whenever you see something you don’t like.”

Letting students have their say is not always an easy sell for administrators like Superintendent Artis, who dealt with similar discipline issues countless times during his 14 years as a high school principal.

He argues that as the country moves closer to a fiercely debated war with Iraq, principals and superintendents must do what it takes to keep order in today’s ethnically and culturally diverse public schools.

“This decision was not based on the particular content of the message [on Mr. Barber’s shirt],” Mr. Artis said. “We are a district with a significant amount of diversity, and we do pay attention to things that may cause tension in the various communities we serve.

“It comes down to a question of whether a school has the right to insist on some level of control over the dress and behavior of its students,” he said, “and I believe we do.”

Rash of Incidents

The Dearborn administrator has company in that view, judging from recent news accounts.

In November, a 17-year old Brooklyn student was pulled out of class, searched, and told she couldn’t wear a T-shirt and pin that showed the Palestinian flag, or display pro-Palestinian stickers, according to The New York Times. The school later reversed its decision.

A high school in the Chicago suburbs suspended an 8th grade student in February for wearing a T-shirt that displayed the twin towers of the World Trade Center, an airplane, and a man in a traditional Arab headdress because administrators believed it “could be taken as a promotion of terrorism,” according to a March 2 Associated Press article.

And in Fairhaven, Mass., this month, high school administrators ordered student journalists who were videotaping a student anti-war walkout to turn off their cameras, arguing that their coverage was encouraging the student protesters, according to the Student Press Law Center.

In such situations, principals face a difficult balancing act when it comes to weighing the free-speech rights of individual students against the needs and mission of the school as a whole, Mr. Paulson of the First Amendment Center said.

“You really have to feel for these administrators,” he said. “What makes their jobs so tough is that the First Amendment says the government can’t pick and choose particular messages to censor.”

Too many principals do just that, according to some legal experts and student-rights advocates.

“There’s really widespread ignorance about what the First Amendment does and does not allow in the school setting, and that’s always a dangerous thing,” said Sam S. Chaltain, the coordinator for the First Amendment Schools project in Arlington, Va., a national initiative designed to help educators model and teach the first freedoms in the Bill of Rights.

Even when administrators understand the First Amendment, Mr. Chaltain said, they are often reluctant to let students practice those rights “because they think that to do so would be to invite chaos and contention in the hallways.”

A Real Threat

The First Amendment of the U.S. Constitution says the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In 1969, the U.S. Supreme Court decided how far those rights extend to public school students in the landmark case Tinker v. Des Moines Independent Community School District, which arose during the national divisions over the Vietnam War.

A small group of students who had been suspended in 1965 for wearing black armbands to school to protest the United States’ military action argued that administrators had violated their First Amendment rights.

The Supreme Court agreed, famously ruling that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court established that symbolic dress worn to school for political reasons is expression that is protected by the First Amendment, and that student speech can only be censored when school officials can show it poses a “material and substantial interference” with the educational process.

That sets a high bar for administrators, according to Jamin B. Raskin, a constitutional law professor at American University Washington College of Law and the author of We the Students: Supreme Court Cases For and About Students.

“The threat the court was talking about has to be real—it can’t just be hypothetical,” Mr. Raskin said. “The administrators in [Tinker v. Des Moines] predicted that fights could erupt as a result of the students’ wearing black armbands, but unless there were actual fisticuffs or riots breaking out at school, they didn’t have a valid excuse” for censorship.

Still, other experts warn that the Tinker decision, though important, is not the final word on free speech in schools.

“As we migrate the rules [for free speech and expression] from regular society into schools, they have to change,” said Julie Underwood, the general counsel for the National School Boards Association in Alexandria, Va. “The courts have recognized that school administrators have a special relationship with students, and also that school administrators have the responsibility to take care of the rest of the children in a school and to provide an environment appropriate for their education.”

In 1986, the Supreme Court found in Bethel School District No. 403 v. Fraser that schools could censor and punish students for “lewd, indecent, or offensive” speech because public school students’ First Amendment rights are not equal to those of adult citizens.

And in the 1988 case of Hazelwood School District v. Kuhlmeier, the court decided that the free-speech rule in the Tinker case didn’t apply to school-sponsored activities such as student newspapers and yearbooks. The majority ruled that “a school need not tolerate student speech that is inconsistent with its basic educational mission,” and that censorship “reasonably related to legitimate pedagogical concerns” was acceptable.

But many lower courts have also held that administrators must show they aren’t attempting to stifle a particular viewpoint—an anti-war stance, for instance—when they curtail student speech, said Mark Goodman, the executive director of the Student Press Law Center, based in Arlington, Va.

“For something to be reasonably related to educational concerns, it can’t just be the personal concerns of an administrator or an attempt to protect the school’s reputation from a factual reporting of the truth,” Mr. Goodman said.

In Dearborn, Mich., last week, Bretton Barber was back in school, but the offending T-shirt was at home, tucked away in his closet as he waited to see if administrators would change their minds.

They won’t, the superintendent said. Nor will Mr. Barber, apparently.

“If they say I can wear the shirt, that will be the end of it,” he said. “If not, we are prepared to file a lawsuit.”

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