STUDENT DISMISSALS FROM PROFESSIONAL PROGRAMS AND THE CONSTITUTION.

• Author: Strasser, Mark P.

CONTENTS INTRODUCTION I. SUPREME COURT JURISPRUDENCE A. Student Speech Rights in Secondary Schools B. Student Speech Rights in Universities II. LOWER COURTS ON DISMISSAL FROM UNIVERSITY PROFESSIONAL PROGRAMS A. Internet Postings B. Untoward Behavior C. Views or Practices? D. Dismissals and Religious Convictions CONCLUSION INTRODUCTION

The United States Supreme Court has addressed the conditions under which students in high school can be punished for their speech and, in addition, has analyzed a couple of cases in which university students were dismissed from professional programs for academic reasons. But the Court has said relatively little about whether or how to use the high school student speech jurisprudence in the university context and about whether or how to apply the academic dismissal jurisprudence in other kinds of contexts. The Court's reticence on these matters is unfortunate because lower courts have been forced to address the constitutionality of different kinds of university student dismissals without necessary guidance from the Court.

Several courts have addressed the conditions under which students may be dismissed from professional programs for unprofessional comments or practices. These courts' approaches have varied with respect to both the appropriate test to use and how particular tests should be applied. The Court's failure to give more than minimal direction on these matters has resulted in dissimilar treatment of relevantly similar cases--a trend that will only continue until the Court provides some greatly needed guidance.

Part I of this Article discusses the Court's student-speech and academic-dismissal jurisprudence, explaining some of the difficulties in providing a coherent account of what the Court has said. Part II discusses some of the cases arising in the lower courts, noting how those decisions do not cohere well with the approaches taken by other courts or, sometimes, by the Supreme Court. The Article concludes by predicting that the confusion and inconsistency in this area will continue to grow until the Court offers a coherent account specifying not only which principle is applicable but how that principle should be applied.

1. SUPREME COURT JURISPRUDENCE

   The United States Supreme Court has discussed the conditions under which schools can punish students for their speech without thereby offending First Amendment guarantees. Regrettably, that jurisprudence is murky at best. The Court has also addressed due process concerns in university academic dismissals, but those cases offer little or no guidance with respect to First Amendment protections of students dismissed for unprofessional comments or activities. The current jurisprudence on university students' rights in the context of dismissals from professional programs is largely unchartered, creating uncertainties and risks for students and universities alike.

   1. Student Speech Rights in Secondary Schools

      The Court has issued several decisions involving the First Amendment rights of high school students. At first, student-speech protections seemed relatively robust, although later decisions weakened those guarantees in not clearly defined ways. In addition, the Court has offered some limited guidance with respect to due process issues raised in the context of university student dismissals for academic reasons. Those cases provide universities and students with much too little guidance. In short, the Supreme Court has provided almost no guidance with respect to the proper approach to determining whether student dismissals from professional programs violate constitutional guarantees.

      The seminal case in the Court's student speech rights jurisprudence is Tinker v. Des Moines Independent Community School District, (1) which involved students who wore black armbands to their schools to protest the Vietnam War. (2) The students were sent home and suspended until willing to attend school without the armbands. (3) The schools' actions were challenged in federal court. (4)

      The Tinker Court recognized that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students." (5) Wearing armbands in school is "closely akin to 'pure speech.'" (6) In this case, the "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners" neither interfered "with the schools' work" nor adversely affected "the rights of other students to be secure and to be let alone." (7) While a few students made hostile comments to the protesters, "there were no threats or acts of violence on school premises." (8)

      The district court upheld the school's actions, (9) reasoning that "the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands." (10) But the Court rejected that an "undifferentiated fear or apprehension of disturbance is ... enough to overcome the right to freedom of expression." (11)

      The authorities' disagreement with the message alone was not enough to justify its suppression. "In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." (12) The Court inferred that the school authorities had "an urgent wish to avoid the controversy which might result from the expression," (13) but the mere desire to remain uncontroversial could not justify the limitation on political speech.

      A brief examination of the school's practices made them even more constitutionally suspect. The school had not adopted a uniform policy with respect to the expression of political views as a general matter. (14) On the contrary, "students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism." (15) At least in part because the school's prohibition did not include other political messages (16) but, instead, "a particular symbol--black armbands worn to exhibit opposition to this Nation's involvement in Vietnam--was singled out for prohibition," (17) the Court held that the school authorities' actions violated constitutional guarantees. (18)

      In striking down the school authorities' actions, the Tinker Court was not thereby permitting students to prevent the schools from performing their mission. The Court expressly noted that the protesting students "neither interrupted school activities nor sought to intrude in the school affairs or the lives of others." (19) While leaving open how much actual or probable disruption would be required before a school suspension for student expression would be upheld, the Court nonetheless implied that the Constitution offered significant protection for students. Absent a "showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition [could not] be sustained." (20)

      Subsequent case law suggests that protections of student speech may be less robust than the Tinker disruption standard implies. Bethel School District v. Fraser (21) involved the punishment of a student for a nominating speech that, in the words of the majority, was "an elaborate, graphic, and explicit sexual metaphor." (22) Prior to its delivery, he had shown his speech to teachers who had "informed him that the speech was 'inappropriate and that he probably should not deliver it.'" (23) In addition, he had been warned that "his delivery of the speech might have 'severe consequences.'" (24) The speech included the following:

      I know a man who is firm--he's firm in his pants, he's firm in his shirt, his character is firm--but most ... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts--he drives hard, pushing and pushing until finally--he succeeds. Jeff is a man who will go to the very end--even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president--he'll never come between you and the best our high school can be. (25) Justice Brennan rejected that the speech was as offensive as one might have inferred from the Court's description of it, (26) although he nonetheless believed that the speech was punishable:

      [I]in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits. (27) A school counselor described some of the student reactions to the speech: "Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in respondent's speech. Other students appeared to be bewildered and embarrassed by the speech." (28) But there had been testimony that the disruption at this assembly was no greater than usual, (29) and the fact that three out of the 600 attending students made sexually suggestive movements did not amount to a disruption of the educational process. (30)

      Both the district court and the Ninth Circuit Court of Appeals found that the Tinker material-disruption standard had not been met. (31) The Supreme Court granted certiorari to determine whether the school's actions violated constitutional guarantees. (32)

      When reviewing the Ninth Circuit decision holding that Fraser's speech was protected, (33) the Court had a few options. It could have affirmed, recognizing that the Tinker material-disruption test...