Hush Don't Say a Word: Safeguarding Students Freedom of Expression in the Trump Era

• Citation: Vol. 35 No. 2
• Publication year: 2019

Hush Don't Say a Word: Safeguarding Students Freedom of Expression in the Trump Era

Laura R. McNeal
University of Louisville, Louis D. Brandeis School of Law, laura.mcneal@louisville.edu

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HUSH DON'T SAY A WORD: SAFEGUARDING STUDENTS' FREEDOM OF EXPRESSION IN THE TRUMP ERA

Laura Rene McNeal^*

Abstract

The controversy surrounding NFL player Colin Kaepernick's act of kneeling during the national anthem in protest of police brutality against people of color continues to permeate public discourse. In March 2017, President Trump referenced Colin Kaepernick's symbolic act during a rally in Louisville, Kentucky, in an effort to illustrate his strong opposition to anyone kneeling during the national anthem. In this speech, President Trump stated that although many NFL franchise owners were interested in signing Colin Kaepernick, many were afraid of receiving a nasty tweet from him. Likewise, in another speech, President Trump stated, "I think it's a great lack of respect and appreciation for our country and I really think they should try another country, see if they like it better." Although President Trump is referring to professional athletes in both of the aforementioned public statements, what about the thousands of students who participated in the nationwide walkout to protest gun violence in the aftermath of the Parkland school shooting? Or the hundreds of youth football players that are kneeling during the national anthem in an effort to mimic their professional idols?

This article takes the position that students have the constitutional right under the First Amendment to engage in expressive activities, political speech, and symbolic speech without interference or censor

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from the state. Certainly, schools can educate, but they cannot indoctrinate based on a prescribed orthodoxy. Therefore, any attempts to limit or discipline students from participating in expressive activities, such as social protests, in K-12 schools that does not cause a material disruption to the learning environment is unconstitutional. Currently, students' First Amendment rights in K-12 schools reside in a sea of ambiguity where the Supreme Court has acknowledged that students are considered 'persons' under our Constitution and thus entitled to fundamental rights, such as freedom of expression, yet in the same vein marginalize those same rights in subsequent decisions by permitting school authorities to limit freedom of speech under certain circumstances. This article offers a path toward safeguarding students' First Amendment rights to engage in expressive activities, political speech and symbolic speech in K-12 schools by amending existing anti-Hazelwood statutes to explicitly include protections for student social protests, as long as such conduct does not cause a material disruption to the school learning environment. Furthermore, the proposed amendment to anti-Hazelwood statutes will limit the reach of Tinker's Material Disruption Standard so that school officials do not have unbridled discretion to censor student expression.

Table of Contents

Abstract........................................................................................251

Introduction.................................................................................253

I. The Rise of Social Activism in K-12 Schools......................259
II. Free Speech jurisprudence in K-12 schools......................268

A. Tinker v. Des Moines Independent Community School District: The Gold Standard.............................270
B. Bethel School District No. 403 v. Fraser: Lewd Speech...........................................................................274
C. Morse v. Frederick: Deterring Illegal Drug Use .........277
D. Hazelwood School District v. Kuhlmeier: School-Sponsored Speech.........................................................279

III. States' Responses to Abridgement of Student Speech: The Birth of Anti-Hazelwood statutes................................283

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IV. A Statutory Solution to Safeguarding Students' Free Speech Rights.....................................................................287

A. A Legislative Solution to Safeguarding Students' Free Speech Rights.......................................................291
B. Limitations of Proposed Solution.................................295

Conclusion....................................................................................296

Introduction

"NFL owners don't want to pick him up because they don't want to get a nasty tweet from Donald Trump . . . [the American people] like it when people actually stand for the American flag."¹ Trump Rally, Louisville, Kentucky.

The controversy surrounding NFL player Colin Kaepernick's act of kneeling during the national anthem in protest of police brutality against people of color continues to permeate public discourse.² In March 2017, President Trump referenced Colin Kaepernick's symbolic act during a rally in Louisville, Kentucky, to illustrate his strong opposition to anyone kneeling during the national anthem.³ In this speech, President Trump stated that although many NFL franchise owners were interested in signing Colin Kaepernick, many were afraid of receiving a nasty tweet from the President.⁴ A recent report substantiated President Trump's beliefs, revealing that several NFL teams were interested in signing Colin Kaepernick to their rosters but feared the "Trump Effect," which is the backlash that may result if President Trump sends a tweet condemning the NFL owner's

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decision.⁵ Likewise, in another speech, President Trump stated, "I think it's a great lack of respect and appreciation for our country[,] and I really said they should try another country, see if they like it better."⁶ Although President Trump is referring to professional athletes in both of the aforementioned public statements, what about the thousands of students who participated in the nationwide walkout to protest gun violence in the aftermath of the Parkland school shooting?⁷ Or the hundreds of youth football players who are kneeling during the playing of the national anthem at high school athletic events in an effort to mimic their professional idols?⁸ Should these youth be in fear of being the subject of a disapproving tweet from President Trump? Should they, too, consider living in another country? Should high school students in public schools have the same constitutional freedom-of-expression rights to engage in expressive activities, political speech, and symbolic speech as adults? This article addresses these crucial legal questions.

In today's polarizing political climate, youth are choosing to take a more prominent role in social activism through their political speech, expressive activities, and symbolic conduct.⁹ For example, students

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who survived the tragic school shooting at Marjory Stoneman Douglas High School in Parkland, Florida, in which seventeen students were killed, organized a national school walkout in protest of gun violence.¹⁰ This heroic show of activism by students led to the national March for Our Lives rally in our nation's capital for gun control legislation.¹¹ Similarly, high school student athletes around the country are kneeling during the national anthem in protest of police brutality against people of color.¹² However, unlike Colin Kaepernick, their symbolic expression often has immediate adverse consequences. For example, Mike Oppong, a football player at Doherty High School in Worcester, Massachusetts, received a one-game suspension for kneeling during the national anthem in solidarity with Colin Kaepernick to protest police brutality against people of color.¹³ Similarly, another student, Dylan Bruton, was suspended from Bishop Gorman High School in Las Vegas, Nevada, and placed on a disciplinary contract for kneeling during the national anthem.¹⁴ Although these two high school athletes are located in different geographic regions of the country, they both represent the disturbing trend of school leaders infringing on students' freedom of

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expression rights.¹⁵ Likewise, school administrators had varied responses to students participating in school walkouts in protest of gun violence.¹⁶ Some administrators supported student walkouts and allowed students to return to school without admonishment, whereas others emphasized that leaving school without permission would result in swift disciplinary sanctions.¹⁷

Currently, students' First Amendment rights in K-12 schools reside in a sea of ambiguity,¹⁸ where the Supreme Court has acknowledged that students are considered "persons" under the Constitution and, thus, are entitled to fundamental rights, such as freedom of expression,¹⁹ yet in the same vein marginalize those fundamental rights in a series of decisions that expand school administrators' authority to limit students' free speech.²⁰ Thus, although the Court posits that neither teachers nor students relinquish their constitutional freedom of speech and expression rights at the

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schoolhouse door, the reality is students are denied the full extent of First Amendment protections afforded to adults.²¹ Because students are arguably one of the most vulnerable sectors of our society, they should be afforded equal, if not more, constitutional protections than adults to ensure they are in a safe learning environment that adequately prepares them to actively participate in democracy. Limiting students' constitutional protections in schools denies them the opportunity to fully understand the extent of their substantive rights as adults.

This essay takes the position that students have the constitutional right under the First Amendment to engage in expressive activities, political speech, and symbolic speech without interference or censorship from the state. Certainly, schools can educate, but they cannot indoctrinate based on a prescribed orthodoxy. Therefore, any attempts to limit or...