School Official’s Action of Forbidding Students from Wearing American Flag T-Shirts Upheld
Students were told that they could not wear t-shirts displaying the American flag in an effort to diffuse the threat of violence between the white students and Mexican students. Four students wore the t-shirts on Cinco de Mayo. Mexican students were outraged and considered the t-shirts as a racist attack on their heritage. The principal after hearing of a potential fight between the groups asked the students to turn the t-shirts inside out or take them off. Two students were sent back to class and two others were sent home with an excused absence. The next day, the students received numerous threats from other students and missed an additional day of school for fear of their safety. The students sued alleging violations of their free speech and equal protection. For guidance, the 9th Circuit Court of Appeals looked to Tinker v. Des Moines-student speech can be censored when there is a “threat of substantial disruption of school activities.” The 9th Circuit ruled that the school officials appropriately responded to anticipated violence.
Dariano et. al. v. Morgan Hill Unified School District et. al. NO. 11-17858, Judge McKeown, Opinion, February 27, 2014, (9th Cir. 2014)
PRACTICE TIP: This case involved a history at the school of violence among the students, some gang-related and some drawn on racial lines. This history provided the requisite “threat of substantial disruption.”
When assessing how to address student speech that might be considered lewd, vulgar or plainly offensive, school administrators must still look to the guidance of Tinker-whether the expression substantially disrupts school operations or whether there is a reasonable forecast of likely disruption, if answer to either is “yes” than the speech can be restricted. However, Pennsylvania District courts have only upheld a school’s restriction of speech if there is actual proof of disruption.
Breast-Cancer Awareness Bracelet Case
The interpretation of speech as to whether it is commenting on a political or social issues comes from the B.H. v. Easton Area School District-the “I heart boobies” bracelet case. The Third Circuit upheld the injunction in favor of the students who were asked to remove their bracelets by school security. The students refused to do so and were escorted to the principal’s office. The students were placed on in-school suspension for one and a half days and banned from attending a school dance. The B.H. court reasoned that the school officials could not ban the bracelets finding that “boobies” is not “plainly lewd” speech and was plausibly interpreted as commenting on a social issue of breast cancer awareness.
If the speech is plainly lewd the school can restrict the speech so long as the expression cannot be interpreted as commenting on a political or social issue. This “plainly lewd” standard is reminiscent of the “I know it when I see it” test offered by Justice Potter Stewart in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964) obscenity case and provides little guidance for school districts.
As always, if you have a questions involving student speech and potential discipline, please contact the attorneys of Andrews & Price, LLC.
Student on Student Harassment
Schools that fail to appropriately identify and remedy bullying and harassment are at great risk for violating federal civil rights laws.
Often bullying can be addressed appropriately through school discipline measures. However, bullying or harassment that is based on race, color, national origin, sex or disability triggers a school’s responsibility to investigate and take corrective action to address the harassment. A failure to address “sufficiently serious” harassment could lead to a determination that the school has encouraged, tolerated or ignored a hostile educational environment.
The Office of Civil Rights requires school districts to take action with respect to harassment about which it knows, or reasonably should have known. The current legal standard requries actual knowledge. “An educational institution has actual knowledge if it knows the underlying facts, indicating sufficiently substantial danger to students, and was therefore aware of the danger.” DiPippa v. Union School District et. al., 2011 WL 1706527 (W.D. Pa).
Schools should make sure to train their staff on recognizing and reporting incidents of harassment and bullying. Administrators need to understand that in addition to typical disciplinary responses an investigation must be conducted as to whether the reported incidents invoke the district’s harassment policies and procedures. The Title IX officer should receive notice of any disciplinary incidents involving bullying or harassment based on protected classifications. Your discipline codes should contain anti-bullying provisions and provide notice of the district’s harassment investigation procedures.
In incidents involving complaints of sexual harassment and/or sexual violence schools should be aware that they may be required to report the incident to law enforcement and/or child protective services. The Child Protective Services Law no longer defines a “perpetrator” as an individual residing in the home of the student victim. This change may require reporting of incidents occurring in the school environment. Schools are advised to contact their solicitors upon notice of incidents regarding harassment.
Please refer to our customized training page. Andrews & Price attorneys are well-equipped to conduct policy and discipline code reviews, train staff and assist with any questions you may have concerning your responsibilities under federal civil rights laws.