Blog 7

Monday

            After discovering that the sponsor of the student speech Senate Bill in 1999--Arizona State Senator Lopez--was retired, I drafted and sent an email to Senator Kelli Ward, the current Chairperson of the Education Committee in the Arizona State Senate, inquiring about her position on reintroducing a similar bill.

Tuesday

            I attended a court-ordered settlement conference presided over by a Judge Pro Tempore in his office. A Judge Pro Tempore is a temporarily appointed judge, who is a lawyer and not yet a judge. First, the Judge Pro Tempore discussed settlement behind closed doors with the plaintiff. Then, he stated that the plaintiff refused to budge from her original memorandum and she refused to quantify her damages with a dollar amount.

            The plaintiff claimed that she would fight this case as hard as she could because of the original plaintiff, who had since past away. The plaintiff was the god-daughter of the original plaintiff, a man who survived Pol Pot's genocide, so his attitude was very mistrusting. He filed the lawsuit against the auto-repair shop, which failed to fix the original plaintiff's car. However, the original plaintiff had withheld the necessary funds from the shop because he mistrusted them. Both the Judge Pro Tempore and my father acknowledged that the facts of the case were not in favor of the plaintiff.

            The Judge Pro Tempore left the room once again to confer privately with the plaintiff. After he returned, the plaintiff abruptly left the room and exited the office. The judge then explained how the plaintiff did not know her damages and was unable to give a dollar amount to settle the case.

            My father decided that he would depose the plaintiff and move for a summary judgment in an attempt to close the case.

Wednesday

            We visited the Old Courthouse in Phoenix once again for a minor's settlement. The plaintiff's attorney had informed my father the night before the hearing that the mother of the child may not be responsible enough to hold the minor's money. My father met with the attorney prior to the hearing to address this situation, but they decided that the mother would be an adequate acceptor of the settlement after explaining to her the rules regarding that the minor's settlement is not for her personal use, but only could be spent for and on behalf of the minor (like braces or a school field trip). Because the settlement amount was over the $10,000 statutory limit, we argued that because the "net" settlement was less than $10,000, the statute still applied. Fortunately, this issue did not hold up the settlement. While the Judge also raised a notice issue, as it related to the minor's father, the judge decided to not let that issue prevent the approval of the settlement.

Research

            This week I concentrated on analyzing law review articles discussing the detrimental effects of Hazelwood's ambiguous standard of review--both on student speech and lower court decisions. Three articles in particular, K.R. Martin's Demoted to High School: Are College Students' Free Speech Rights the Same as Those of High School Students?,45 B.C.L. Rev. 173 (2003), L.E. Levine's and Catherine A. Reardon's The Resurgence of Censorship in the Twentieth Century?: The Ninth Circuit's Response in Planned Parenthood v. Clark County School District, Journal of Civil Rights and Economic Development: Vol. 7: Iss. 2, Article 10 (2012), and Evan Mayor's The "Bong Hits" Case and Viewpoint Discrimination: A State Law Answer to Protecting Unpopular Student Viewpoints The George Washington Law Review Vol. 77: No. 3 (April 2009), provided compelling arguments. The first two articles examined the Supreme Court's public forum analysis and regulation of school-sponsored speech in student expression cases before and after Hazelwood to assert that Hazelwood's absence of a definitive statement on viewpoint neutrality in regulating the content of student speech has spawned a circuit split, which must be remedied either by another Supreme Court ruling or school policy. Likewise, Mayor's article elaborated on the Supreme Court's failure to address the disparity in Lower Court rulings on viewpoint discrimination in the Morse case, but he advocated for a state statute remedy, based upon  the Supreme Court's reluctance to tackle the issue and the vulnerability of school policies to lower court interpretations.

            I've included a synopsis of the evolution of case law regarding student speech to emphasize the dangerous inadequacy of Hazelwood's standard in an attempt to argue for a return to the more practical Tinker standard.

Here's a quick sketch of legal precedent:

            According to Tinker, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court also recognized in Bethel School District v. Fraser that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Thus, Fraser held that schools may sanction "lewd and indecent speech" that is "sexual in nature," applying Hazelwood, which stated that the rights of students "must be applied in light of the special characteristics of the school environment." Relying on these cases, the U.S. Supreme Court in Morse et. al v. Frederick carved out another exception to free speech by stating that school officials may take action to prevent student speech that can reasonably be assumed to promote illegal drug use, even if the speech did not disrupt school under Tinker.  

            To read about the cases in more detail, (or if you are trying to fall asleep) continue on:

Tinker v. Des Moines Independent Community School District

            The U.S. Supreme Court in 1969 affirmed the First Amendment rights of public school students, striking a balance between student expression and school authority with its "material and substantial disruption test." Requiring schools to offer more than a vague fear that student speech might disrupt order in school, the Court mandated that schools may censor content only if student expression will "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or invade the privacy rights of other students. Of course, student speech that is unprotected by the constitution can always be censored--such as obscenity, libel, false advertising, and incitement of a clear and present danger. In Tinker, students donned black armbands to school as an anti-Vietnam War protest and were suspended. The court held that the school violated the students' First Amendment rights, noting that since the school only punished one specific symbol--the arm bands--while allowing other symbols--political campaign buttons--the school's censorship amounted to unconstitutional viewpoint discrimination, which is not permitted in any forum--public, limited, public, or non-public.

Bethel School District No. 403 v. Fraser

            In Fraser in 1986, Chief Justice Warren Burger differentiated the sexually suggestive speech of a high school student at a school assembly from Tinker's armband connoting a political viewpoint. Upholding the student suspension, the court deferred to the school's decision regarding the appropriateness of student expression, without demanding proof of a "material and substantial disruption" under Tinker. Consequently, viewpoint discrimination seemed to be tolerated by the Court, a significant shift in First Amendment jurisprudence.

Hazelwood School District v. Kuhlmeier

            The Supreme Court created a new standard of review in Hazelwood in 1988 that continues to cast a shadow on student free expression today. In the case itself, a school principal censored controversial articles about teenage pregnancy and divorce written by the staff of the high school newspaper. In 1985, the district court of Missouri ruled in favor of the principal, stating that high school newspapers are not a public forum and that the topics were not appropriate for the high school setting. However, in 1986, the decision was reversed by the U.S. Court of Appeals for the Eighth Circuit, finding the school newspaper to be a public forum and applying the "material and substantial disruption test" standard of Tinker to the case, which led the court to believe that the students' First Amendment free speech rights had been violated because there was no proof that these articles would create a disturbance to the school environment.

            However, the U.S. Supreme Court reversed the circuit court's decision and created a new standard for the review of student publications in high school. The rulings of Tinker and Bethel School District No. 403 v. Fraser confirmed that students have their First Amendment rights to free speech, but some elements of free speech can be restricted inside a school as it may conflict with the school's educational purpose. The court used a three-step process to its ruling: the type of forum where the speech was created (in a journalism class), the nature of the speech in the disputed articles, and the review of the principal's censorship.

Public Forum Analysis

            The more public the forum, the higher the scrutiny of speech regulations. The three types of public fora characterized by the Supreme Court are the traditional public forum enjoying robust First Amendment protections (such as a public park), the limited public forum, in which public speech is permitted temporarily, and the nonpublic forum (government property where free speech may be more restricted). Both traditional public forums and limited public forums receive strict scrutiny of content-based regulations by the court. Under the strict scrutiny standard, the state must have a "compelling state interest" and the regulation must be "narrowly tailored." Nonetheless, even the seemingly sacrosanct public forum of a public street is subject to speech regulations based on time, place, and manner. For example, a planned protest march must apply for a permit from the city so that the city can provide adequate police protection and regulate traffic safely. 

            In a non-public forum, courts apply a lesser standard of review: the regulation of speech must be reasonable and viewpoint neutral. In Hazelwood, the Court held that the student newspaper was a non-public forum on the grounds that the school exercised control over the publication, which was produced as part of the journalism class. The Court reasoned that the school's intent was for the newspaper to be a "supervised learning experience for journalism students," not an indiscriminate use of a public forum. It deemed the school's censorship reasonable because it was "school-sponsored speech" bearing the "imprimatur" of the school: the school's name was on the newspaper and school funds were used to produce the paper. Therefore, the newspaper was not personal student expression, but school-sponsored speech, supporting the court's substantial deference to the school's restrictions on style and content, as long as they are "reasonably related to legitimate pedagogical concerns." The Court esteemed the school's actions reasonable in light of the "legitimate pedagogical" goal of protecting the specific students mentioned in the article discussing pregnancy and freshmen and possibly their younger siblings at home. Because the Court did not expressly limit this ruling to high school students, many lower courts have extended it even to university publications, such as Hosty v. Carter. 

            Brennan's dissent asserted that the Hazelwood school would have failed Tinker's material and substantial disruption test because the students' articles did not disrupt school functioning or invade the rights of others--for example, it did not cause a walk-out or riot. Brennan believed that the Tinker standard was a fair balance between school and student interests and did not need to be revised in Hazelwood. In fact, Brennan asserted that the Tinker standard should remain, even if student speech is not school-sponsored.

Post-Hazelwood Federal Court Cases      

 

            Nonpublic forums were unable to have speech suppressed by the government based on the viewpoint of the speaker prior to Hazelwood. In the aftermath of Hazelwood, the circuit courts have been split concerning the constitutionality of viewpoint discrimination in student speech, partly because Hazelwood was silent on the issue.  The First, Third, and Tenth Circuits have taken a stance permitting viewpoint discrimination by public schools, interpreting Fraser broadly as justification for justifying offensive speech. On the contrary, the Ninth and Eleventh Circuits ruled that viewpoint discrimination is impermissible in any type of government forum. The Tenth Circuit Court of Appeals decision in Fleming v. Jefferson County School District R-1 exemplified this circuit split. Stressing Hazelwood's finding that schools can regulate speech bearing the school's imprimatur, Fleming ruled that Hazelwood does not require viewpoint neutrality.   

Planned Parenthood v. Clark County School District           

            This case highlights how Hazelwood's vague, loose standard has been inconsistently applied. It is evidence that the First Amendment needs a stronger constitutional bulwark to protect student speech.

             In 1989, the Ninth Circuit held that the student publication at issue was not a public forum. Planned Parenthood sued the school district claiming violations of free speech because of the school's refusal to publish their advertisement in the student newspaper. However, since they were not students, the problem did not deal with students' First Amendment rights.

            First, the court defined what type of forum existed, and then it decided which level of scrutiny to apply to analyze if the First Amendment was violated. The Planned Parenthood Court cited the public forum test expressed in Perry Education Association v. Perry Local Educator's Association, which held that schools could become public forums if policies or practices exercised by school officials opened these facilities "for indiscriminate use by the general public." To decide if the school intended the newspaper to be a public forum, the court looked for written policies. Thus, the Court concluded that there was no intent to open a public forum. Citing Cornelius v. NAACP Legal Defense and Education Fund, Inc. 473 U.S. 788 (1985), the Court approved of the school's pedagogical interest in avoiding controversy as reasonable in a non-public forum, such as this student newspaper. However, if the Court had found the paper to be a public forum, this rationale would not have been reasonable.

            Lana E. Levine and Catherine Reardon posit that the Ninth Circuit exhibited the following three flaws in its decision: assuming a policy made by officials to be the only factor in establishing a public forum, applying the Hazelwood public forum test incorrectly, and failing to recognize the proper forum as the advertising space, not the student newspaper itself. If the court investigated further beyond the written rules of the school, it would have discovered  the intent to make a public or limited public forum, since all advertisements--including those from casinos, bars, medical clinics, political campaigns, and churches--were accepted, except those from Planned Parenthood.

Morse et al. v. Frederick

            Morse, a high school principal, was alarmed when she saw students at a school-sponsored event roll out a banner with a message she regarded as an inappropriate promotion of illegal drug use--"Bongs Hits 4 Jesus." When she demanded that the students put away the banner, one student, Frederick, refused, resulting in his suspension and her confiscation of the banner. An Olympic Torch Relay was passing by the school on the day of the incident. Frederick later claimed that the sign was only nonsense; his only purpose was to get on television, not to promote illegal drug use. Since this transpired at a school-approved social event, Frederick's argument that this case is not a school-sponsored speech was immediately rejected by the Supreme Court.

            Frederick took the case to the federal district court, where the Juneau school board prevailed, drawing points from the Bethel School District No. 403 v. Fraser ruling. However, the Ninth Circuit reversed the district court's order, stating Fraser only applies to speech that is "sexual in nature." Thus, the Court applied Tinker and ruled that the banner did not cause a substantial disruption, and consequently Frederick's rights were violated.

            In 2006, Chief Justice Roberts delivered the majority opinion, which held that school officials did not violate the First Amendment by suspending a student for his speech. Reversing the Ninth Circuit decision, the Supreme Court resolved two issues: the First Amendment permits schools to prohibit students from promoting the use of illegal drugs at a school event and the Ninth Circuit strayed away from established standards of qualified immunity in holding that a principal was liable. Chief Justice Roberts found that the "special characteristics of the school environment" and the government's interest in drug prevention to be paramount concerns justifying censorship.

            In his dissent, Justice Stevens, joined by Justice Souter and Justice Ginsberg, found that "the First Amendment demands more, indeed, much more." Describing the banner as "nonsense," rather than advocacy of "illegal or harmful" conduct, Stevens disagrees with the majority's upholding of the school's decision to punish a student for "expressing a view with which it disagreed."  Moreover, Stevens takes the Court to task for neglecting to realize that the legalization of marijuana is a legitimate public policy issue and that "the Court's test invites stark viewpoint discrimination" (127 S.C.T. at 2645).

            In the post-Columbine shooting tragedy era of school violence, courts are likely to continue to be deferential to schools regulating student speech, adding support to the need for legislators to pass student-speech protective laws.