Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
  • Submissions
  • The Roundtable
  • Full Issues
  • Sponsors
  • Contact
    • Contact
    • Applications
    • FAQs
    • Member Portal >
      • Directory
      • Forms
      • Graphics
      • Minutes

The Roundtable

Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.

Photo courtesy of Flickr user Boston Public Library. 

INTERESTED IN wRITING FOR tHE rOUNDTABLE?

Flags and Free Speech: Constitutional Rights in Classrooms

3/16/2014

0 Comments

 
Picture
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. 
It’s no surprise, then, that school officials in 2010 were concerned about similar altercations. Assistant Principal Miguel Rodriguez, directed by Principal Nick Boden, asked the students to turn their shirts inside out or take them off. The students refused, even acknowledging the safety risks they were assuming. Two students returned to class after Rodriguez deemed their shirts less provocative, but the remaining two students – refusing to remove their shirts – were asked to return home with no academic consequences. The students did so, but all, including the teens who returned to class, were threatened with violence later that day.

The students and their parents later brought suit against the Morgan Hill Unified School District, Boden, and Rodriguez, “alleging violations of their federal and California constitutional rights to freedom of expression.”[1] The court defended the district and its administrators: “School officials anticipated violence or substantial disruption of or material interference with school activities, and their response was tailored to the circumstances,” wrote Circuit Judge McKeown. [2]

Freedom of speech in schools has long been debated. The court referenced the “well-recognized framework” of Tinker v. Des Moines (1969), which upheld a student’s right to free speech in school – unless a school official could show that a prohibitory action “was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” [3] The boundaries established by Tinker were fuzzy at best; since Tinker v. Des Moines, the Supreme Court and circuit courts have endlessly toyed with the confines of free speech in schools. In the well-known case of Bethel School District v. Fraser (1986), the Supreme Court added parameters to the notion of free speech in school; so too did Hazelwood v. Kuhlmeier (1988) and Morse v. Frederick (2007).

With the limits of Tinker v. Des Moines unearthed in these cases, it was no surprise that the Easton Area School District v. B.H. case (2013) turned heads. In it, the US Court of Appeals for the Third Circuit defended two students’ right to wear “I  ♥  boobies” bracelets, rather than defending the school district that penalized the bracelet-wearers. The case was criticized because of the apparent capriciousness of the court’s distinction between lewd and acceptable language.

Such vague distinctions exemplify a fundamental struggle between different court interpretations of students’ free speech: when and where does one cross the line legally? In the case of Live Oak High School in 2010, the court deemed the threat of student violence to be sufficient justification for the administrators’ actions. But regardless, the court’s decision in this case and cases like it are by no means rooted in definitive law. Tinker v. Des Moines, though establishing the framework for free speech in schools, is notoriously vague. As courts struggle to balance school authority and safety with first amendment rights, the scale is likely to tip back and forth for many cases to come. 



[1] Dariano v. Morgan Hill Unified School District <http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/27/11-17858.pdf>
[2] Ibid.
[3] Tinker v. Des Moines <http://supreme.justia.com/cases/federal/us/393/503/case.html>

Photo Credit: Flickr user arbyreed
0 Comments

Your comment will be posted after it is approved.


Leave a Reply.

    Categories

    All
    ACA
    Alana Mattei
    Alexander Saeedy
    Alexandra Aaron
    Alice Giannini
    Alicia Kysar
    Anna Schwartz
    Artificial Intelligence
    Ashley Kim
    Benjamin Ng'aru
    Biotechnology
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Civil Rights
    Clarissa Alvarez
    Congress
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    Data
    Davis Berlind
    Derek Willie
    Edgar Palomino
    Edna Simbi
    Environment
    EPA
    Flint
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Gun Control
    Habib Olapade
    Harshit Rai
    Henry Lininger
    Inequality
    Interviews
    Iris Zhang
    Irtaza Ali
    Jonathan Lahdo
    Jonathan Stahl
    Justin Yang
    Katie Kaufman
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Matthew Caulfield
    Media
    Megan Yan
    Michael Keshmiri
    Minimum Age
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicole Greenstein
    Obamacare
    Omar Khoury
    Opioid Crisis
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pennsylvania
    Pennsylvania Law
    Pharmaceuticals
    Philadelphia Law
    Presidential Powers
    Public Education
    Public Heatlh
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Renewable Energy
    Sam Nadler
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Second Amendment
    Shannon Alvino
    Siddarth Sethi
    Steven Jacobson
    Suaida Firoze
    Sue And Settle
    Supreme Court
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Technology
    Telecommunications
    Thomas Cribbins
    Todd Costa
    Transgender Rights
    Trump
    Tyler Larkworthy
    Unfiled
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Proudly powered by Weebly
✕