Chaos in Public Schools: Federal Courts Yield to Students while Administrators And Teachers Struggle to Control the Increasingly Violent and Disorderly Scholastic Environment

• Author: Michael C. Jacobson
• Position: B.A., Philosophy, State University of New York at Binghamton, 2001
• Pages: 909-942

Page 909

B.A., Philosophy, State University of New York at Binghamton, 2001. J.D., Benjamin N. Cardozo School of Law, 2005. Notes Editor, Cardozo Public Law, Policy, and Ethics Journal, 2004-2005. I would like to express my sincere gratitude to Professor Marci Hamilton for cultivating my interest in constitutional law and guiding me through the process of writing this article. I would also like to thank the entire staff of the Cardozo Public Law, Policy, and Ethics Journal for their hard work and determination regarding my article and production of the journal as a whole.

Introduction

With every decision upholding students' right to free expression in public schools, the federal courts of this country weaken the structural integrity of the foundation that is our system of public education. The case of Barber v. Dearborn Public Schools¹ is no exception. Despite the fact that the population of Dearborn, Michigan "has the largest concentration of Arabs anywhere in the world outside of the Middle East,"²the United States District Court for the Eastern District of Michigan, Southern Division, chose to allow Bretton Barber to fuel the fire of racial and political controversy that existed at Dearborn High School.³

Specifically, the court upheld Barber's right to wear a T-shirt in public school depicting President George W. Bush and emblazoned with the political rhetoric "International Terrorist"⁴in the face of rising ethnic and political tensions. Such a decision is both repugnant to the current state of the law⁵and reveals a weakness in the law-specifically,Page 910 the fact that school officials must meet an often unobtainable standard to restrict students' First Amendment⁶speech.⁷More often than not, teachers and administrators are unable to meet that burden.⁸

This note will examine the history of First Amendment litigation relating to speech in public schools, provide evidence of escalating violence in public schools associated with unfettered First Amendment rights, and will argue that the standard by which school officials and administrators may infringe on a student's First Amendment rights in order to preserve the integrity of the scholastic environment should be reduced.

Specifically, Part I of this note will analyze how the federal courts have arrived at the current state of the law; Part II will discuss how the standard is flawed and no longer applicable by providing evidence of escalating school violence associated with student insubordination; and Part III will propose an alternative standard which is more flexible and more congruent with the current state of world affairs. This new standard aims to provide school officials with the discretion they need to maintain the integrity of the public education system.

I The History of First Amendment Litigation Regarding Constitutionally Protected Speech in Public Schools

The following line of cases will demonstrate, among other things, how the lack of specific guidance from the Supreme Court has led to confusion and irregularity among the lower federal courts.⁹Without a workable standard that is both definitive and practical, the confusionPage 911 will continue and the grasp that educators have over the public school system will continue to weaken.

A School Administrators and Officials are Increasingly Required to Meet an Insurmountable Burden to Repress Students' First Amendment Speech in the Face of Potential Dangers and Disruptions to the Scholastic Environment

In 1969, the Supreme Court of the United States decided the case of Tinker v. Des Moines Independent Community School District.¹⁰In that case, three students attending Des Moines public schools wore black armbands to voice their disapproval of the Vietnam War and were subsequently suspended from school after they failed to adhere to a regulation banning any student from wearing such an armband.¹¹

The Supreme Court overturned the district court's ruling¹²by stating that there was "no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone."¹³The controlling standard for school officials to suppress students' First Amendment speech¹⁴emerged from this case and has been sustained with a few minor adjustments ever since. The Court stated, "Clearly, the prohibition of expression of one particular opinion, at least without evidence that itPage 912 is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible."¹⁵

The Court, presumably seeking to prevent public schools from becoming totalitarian communes, was misguided in its reasoning behind this decision.¹⁶Further, the line of cases following this decision, while giving some power back to school officials, has not provided school officials with the discretion they need to control the scholastic environment, nor has it provided any consistency for school officials to be clear as to what type of speech is protected and what is not.¹⁷However, the Court in Tinker detailed one qualification that has been overlooked many times by subsequent tribunals trying similar cases:¹⁸the right to freedom of expression in public schools is not absolute and can be restricted "in light of the special characteristics of the school environment."¹⁹

The Tinker Court, however, mentioned that these special characteristics should play a role in determining whether particular forms of speech should be suppressed, but neglected to mention the process by which such evidence should be weighed against the desire to preserve absolute First Amendment rights for public school students. The Court's failure to particularize, unfortunately, has led to over thirty years of arbitrary and capricious power-stripping decisions directed against high school teachers and administrators.²⁰

In 1971, the United States District Court for the Eastern District of North Carolina, Fayetteville Division, issued a somewhat defiant opinion in the case of Hill v. Lewis²¹In that case, students also sought to protest the Vietnam War by wearing black armbands to high school. Unlike the Court in Tinker, the district court found the school's prohibition of armbands to be justified by the special characteristics of the school and the surrounding environment.²²

The high school where the incident leading to this case arose was located in a city with a substantial military population (it was situatedPage 913 very close to Fort Bragg).²³The war had already been a source of divi-siveness among students as there had been demonstrations on school grounds and serious disruptions had already occurred (fear of violence, incidents of disrespect towards the flag, and insubordinate behavior towards teachers were common after the school prohibited the wearing of armbands).²⁴

As such, the court found that the potential for disruption justified the prohibition and that this case was distinguishable from Tinker.

Tinker did not involve aggressive, disruptive action or group demonstrations. Tinker did not concern speech or action that intrudes upon the work of the school or the rights of other students. In Tinker there were no threats or acts of violence on school premises. In Tinker the fear of disruption did not motivate the prohibition of armbands.²⁵

Similarly, the Federal Court of Appeals for the Sixth Circuit upheld a school official's right to prohibit a student from wearing a Confederate flag patch on his jacket when disruptions over the symbol had occurred several times during the previous school year.²⁶In the case of Melton v. Young,²⁷the Sixth Circuit Court of Appeals upheld the district court's ruling²⁸and found that the fear of disruption was not "unsubstantiated" when a substantial disruption had in fact occurred previously.²⁹Page 914

Melton v. Young was denied certiorari by the Supreme Court, but its scope should not be so limited. The Sixth Circuit Court of Appeals had the foresight to allow school officials to prevent students from exercising certain constitutional rights when the exercise of those very same rights at the school in the past had resulted in a material or substantial disruption of the scholastic environment.³⁰Unfortunately, the failure of the Supreme Court to hear this case resulted in further inconsistencies.

In 1976, the United States District Court for the District of Oregon followed the Supreme Court's ruling in Tinker by invalidating an order of the Molalla Union High School Board, which banned all political speakers at the school.³¹In doing so, the district court set forth specific examples of government interests that would be appropriate justifications for infringing on the First Amendment rights of students.³²

While the school board's order banning all political speakers was an extreme version of administrative discretion, the court gave very little weight to the apparent desire of the community surrounding the school for such an order after a communist advocate had been invited to speak to the students.³³Perhaps if the special characteristics of the school'sPage 915 environment had been considered³⁴(including the specific desires of the parents and the surrounding community), or perhaps if the Supreme Court had...