1. Continuing the Conversation: Speech and Expression in Education
John S. Hooks
Adams and Reese LLP
Inaugural Education Law Conference
The University of Mississippi
June 14, 2019

2. Free Speech
Congress shall make no law … abridging the freedom of speech
U.S. Const. Amend. I

3. necessity of creating disciplined and orderly learning environments
Speech and Expression
The Balance:
students’ free speech v.
necessity of creating disciplined and orderly learning environments

4. K-12 speech law: From armbands to bong hits
Tinker
Fraser
Kuhlmeier
Morse v. Frederick

5. Tinker’s “Material Disruption Test”
Students were permitted to wear armbands in protest of events in Vietnam.
Student conduct did not “materially disrupt the work and discipline of the school.”

6. Material & Substantial Disruption
protect the educational process
must be more than the discomfort of airing unpopular views
must show a reasonable forecast of disruption
They are going to do what ?

7. Fraser: “Pervasively Vulgar”
Student was not permitted to make a “vulgar and offensive” speech to a student assembly
Schools have responsibility to inculcate “fundamental values necessary to the maintenance of a democratic political system.”

8. Kuhlmeier: “School Sponsorship”
Principal was permitted to censor school newspaper.
Schools have great latitude in editing and controlling student expression if it bears the “imprimatur of the school” or is part of the curriculum.
School sucks !

9. Morse v. Frederick
18-year old student suspended for banner reading “Bong Hits for Jesus.”
US Supreme Court upheld school:
Message (although just off campus, was school-related)
Speech promoted illegal drug use
School had important interest in deterring drug use.

10. Limited Forum
Restrictions can be placed on student speech when it is. . .
materially and substantially disruptive
pervasively vulgar or harmful to students
perceived as bearing imprimatur of the school

11. J.S. v. Blue Mountain School District
(3rd Cir. Jun. 13, 2011)
First Amendment rights of student violated by school when it disciplined her for creating a parody MySpace profile of her principal.
Off-campus, home computer
Said principal was pedophile, sex addict, and student used profanity.

12. Layshock v. Hermitage Schol District
(3rd Cir. 2011)
Another MySpace profile of a principal
Off-campus, on home computer

13. Summary First Amendment rights of students violated in both cases.
Tinker not applicable because no substantial disruption.
Hazelwood not applicable because off-campus.
Concerns about extending reach of schools for off-campus conduct.

14. Kowalski v. Berkeley County Schools,
652 F.3d 565 (4th Cir. 2011)
S.A.S.H (Students Against Sluts Herpes)
“No No Herpes, We Don’t want no herpes.”
Targeted a particular student
Student creating page was suspended 5 days, banned from cheerleading for 90 days
4th Circuit upheld punishment

15. 2012: U.S. Supreme Court refused to hear appeals in all three cases.

16. Taylor Bell v. Itawamba County School Board, 799 F. 3d 379 (5th Cir
School violated student’s First Amendment rights by punishing him for creating a rap song off-campus without school resources that did not create a substantial disruption.

17. Higher Education Campus Speakers potential disruption / safety
time, place, manner restrictions
recent state statutes

18. Higher Education Harassment v. Free Speech
implications for academic tenure

19. Higher Education Student Newspapers and Yearbooks Social Media
censoring public comments

20. Implications What is “speech” anyway? Off-campus v. On-campus
Harassment of administrators v. students:
A different standard?
Don’t overreact (out of emotion)!

21. To Respond or Not to Respond
Courts are split regarding off-campus conduct.
Suggestions:
Document the material and substantial disruption
Report serious issues to administrators / law enforcement / counselors.
Contact on-line medium directly.
Counsel with student(s) involved.
Involve parents.