By Taryn MacKinney
Taryn MacKinney is an Executive Editor of the Penn Undergraduate Law Journal and a student at the University of Pennsylvania.
A recent Colorado lawsuit has sparked controversy over religious expression in public schools. Chase Windebank, a Colorado Springs high school student, is suing his school district for what he deemed a violation of his First and Fourteenth Amendment rights.
Though the lawsuit – still in its infancy – has already generated intense debate, the topic isn’t new; the issue of free speech in schools has been battled out for decades in courts. Since the landmark Tinker v. Des Moines (1965) case, which ruled in favor of student rights when it claimed that neither “students [nor] teachers shed their constitutional rights…at the schoolhouse gate,” the Supreme Court and circuit courts have ruled erratically.  In Bethel School District v. Fraser (1986), Hazelwood v. Kuhlmeier (1988), and Morse v. Frederick (2007), the Supreme Court refined Tinker by adding parameters to student free speech. In B.H. v. Easton Area School District (2014), however, the US Court of Appeals for the Ninth Circuit reversed this decades-long trend by upholding the rights of students to wear controversial breast cancer bracelets; the Supreme Court rejected the School District’s appeal, solidifying the stance taken by the lower court.  Now, only a little more than a year after B.H. v. Easton, the Windebank lawsuit promises to stir things up again.
By Taryn MacKinney
In late February of 2014, the US Court of Appeals for the Ninth Circuit ruled in a controversial free speech case brought against a Northern California school district by the parents of three Caucasian students. The case was not the first of its kind in recent years, and it is unlikely to be the last.
On Cinco de Mayo of 2010, school administrators of California’s Live Oak High School asked a group of Caucasian students – donning shirts with prominent American flags – to turn their shirts inside out. The school’s previous Cinco de Mayo celebrations had been fraught with threats of violence, stemming from racial tensions between Hispanic and Caucasian students when the latter wore similarly provocative shirts, chanted pro-American sentiments, and, in 2009, even hung a makeshift American flag from a tree on campus. The flag-donning incident angered several Hispanic students, who accused the teens of blatant racism and exchanged “profanities and threats” with them. Fear of violence and potential gang involvement prompted administrative intervention.
By Taryn MacKinney
In 2010, two middle school students of the Easton Area School District came to school wearing colorful bracelets displaying the phrase “I ♥ Boobies.” They weren’t the first kids to don them; the bracelets – created by the Keep a Breast foundation, a nonprofit breast-cancer-awareness organization – have boomed in popularity since their release in 2004.
Though the bracelets were intended to encourage open and comfortable communication among young people about breast cancer, they have also sparked controversy in school districts across the country. Many school districts, seeing the bracelets as blatantly vulgar, have banned them.
Easton Area School District in Philadelphia followed this trend, and the two students, Briana Hawk and Kayla Martinez, were suspended from school. Viewing this as an affront to their First Amendment rights for free speech, they fought back in court with parental aid. In April of 2011, a preliminary injunction temporarily struck down the district’s bracelet ban, and soon thereafter, the U.S. Court of Appeals for the Third Circuit ruled in the students’ favor: schools were not allowed to ban the bracelets.
The justification for this decision? “Because the bracelets here are not plainly lewd and because they comment on a social issue,” contended Judge D. Brooks Smith in the official court case, “they may not be categorically banned under Fraser.”
The majority developed their reasoning from past Supreme Court cases on student free speech rights, particularly Bethel School District v. Fraser (1986), as Judge Smith references above. In this case, a high school student named Matthew Fraser – after being disciplined by the school for a vulgar speech delivered to classmates – sued the Bethel School District for violation of his free speech rights.
Though the U.S. District Court and the Ninth Circuit Court of Appeals ruled in Fraser’s favor, the Supreme Court supported the school, suggesting that the district had the right to limit vulgar or sexually explicit information on school grounds. The case offered a sharp response to the Supreme Court decision Tinker v. Des Moines, a 1969 case that upheld a student’s right to free speech in school. Fraser added parameters to this interpretation, disallowing expression in schools that is vulgar for vulgar’s sake.
So why weren’t the “I ♥ Boobies” bracelets considered vulgar? The majority claimed that the bracelets – unlike Fraser’s comparatively explicit high school speech – are backed by an important message: the public support of breast cancer awareness and research. This is the “social issue” that Judge Smith claims the bracelets address, thus legitimizing the girls’ right to wear them on school grounds. Additionally, the supporting judges claim the bracelets aren’t offensively crude.
The five dissenting judges were brusque in their disagreement. They objected to the seemingly arbitrary division of words into the categories of “lewd” and “acceptable” language, and they were concerned that the notion of “social issues,” used as justification by the majority, is too broad a category to build boundaries around. “What is at issue,” dissenter Judge John A. Greenaway Jr. reasoned in the official court case, “is the notion that we have established a test which effectively has no parameters.”
His arguments reflect a legitimate concern that teachers, in addition to future court cases, will be forced to deal with the implications of this decision’s vagueness. After all, teachers see first and foremost the tensions between legitimate and illegitimate student expression in school.
It’s no surprise, then, that the subject is sensitive for both courts and educators, as young people are notorious for relentless boundary testing. As Judge Greenaway remarks in the case report, sympathizing with the educators of Easton Area School District, the case decision has failed “to resolve the conundrum that school districts face every day.”
Photo Credit: Flickr user Dennis Vu