NO. 16-6734
——————————
J.L.,
Petitioner,
v.
METRO CITY PUBLIC SCHOOLS,
Respondent.
——————————
On Appeal From the Supreme Court of New Columbia
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BRIEF FOR RESPONDENT
This brief belongs to:
NAME
CLASS
SCHOOL
MARSHALL-BRENNAN
CONSTITUTIONAL
LITERACY PROJECT
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ 3
QUESTIONS PRESENTED .......................................................................................... 5
CONSTITUTIONAL PROVISION ................................................................................ 6
STATEMENT OF FACTS ............................................................................................. 7
ARGUMENT ................................................................................................................ 13
APPENDIX I: CASE LAW SUMMARIES .................................................................. 21
Tinker v. Des Moines Independent Community School District .......................... 21
West v. Derby Unified School District No. 260 ..................................................... 23
Canady v. Bossier Parish School Board ................................................................ 25
Stephenson v. Davenport Community School District ......................................... 27
Chalifoux v. New Caney Independent School District.......................................... 29
Morse v. Frederick .................................................................................................. 32
J.S. ex rel H.S. v. Bethlehem Area School District ............................................... 33
APPENDIX B: EVIDENCE ......................................................................................... 35
EXHIBIT A: Metro City Public Schools Student Parent Handbook ................... 35
EXHIBIT B: Instagram Post .................................................................................. 39
EXHIBIT C: Video posted by J.L. on social media ............................................... 40
EXHIBIT D: Rosaries ............................................................................................ 40
EXHIBIT E: Metro City Paper Article .................................................................. 42
QUESTIONS PRESENTED
I.
Did Principal Skinner and MCPS violate J.L.’s First Amendment rights to
free speech and free exercise of religion by disciplining and expelling her for
displaying a rosary at a student commemoration event?
II.
Was the Jefferson High School policy that prohibited students from
displaying gang symbols unconstitutionally vague?
CONSTITUTIONAL PROVISION
AMENDMENT I
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
6
STATEMENT OF FACTS
J.L. is an eighteen-year-old high achieving high school student who attended Jefferson High
School (JHS), located in Metro City, New Columbia, and who was recently admitted to Metro
City University. J.L. was awarded a four-year merit scholarship that covered the full cost of
university tuition.
Recently, J.L. lost her older brother, Sonny, to what is suspected to be gang-related
violence. Sonny was a graduate of JHS and the star quarterback of the JHS football team. Sonny
was killed during the robbery of a local bodega near J.L. and Sonny’s home. It had been rumored
that Sonny’s death was an execution, rather than an unintended shooting, because the
perpetrators of the crime were members of a local gang called GTA, and Sonny had previously
been a known member of Los Santos Saints, a rival Metro City gang. Sonny was the only person
killed during the robbery. Los Santos Saints members are identified by their signature rosary
tattoos. Although Sonny was no longer part of the gang at the time of his death, it was sometimes
difficult for him to distance himself from the gang affiliation because he had friends who were
still active in the gang and he wore a prominent rosary around his neck.
J.L. was very upset after the death of her older brother. J.L. and Sonny’s father died when
they were young and Sonny was a father figure for J.L. It was not until after their father’s death
that Sonny turned to gangs, but his success as a quarterback in high school helped him leave his
gang lifestyle behind and earned him a scholarship to play football in college. He had just
finished his first year when he was killed. After Sonny died, J.L.’s mother gave J.L. the rosary
that Sonny wore around his neck and kept in his locker during football games. J.L. and Sonny’s
mom is from a Catholic background and, unaware that the rosary was a symbol of Los Santos
Saints, she gave the rosary to Sonny after their father died as a reminder that he would never be
7
alone. For Sonny, the rosary provided dual meaning—it was a religious symbol that reminded
him of his father, and also reminded him of the gang lifestyle that he had overcome. J.L. now
holds the family rosary and wears it regularly.
The football team and JHS organized a special commemoration ceremony for Sonny
during the halftime of a football game at Metro City Park, a public park across from JHS that
housed a football stadium where JHS football games are regularly played.
Unfortunately, Sonny was not the only young person in Metro City to fall victim to gang
violence. There were deaths throughout the community and local high schools in recent years,
largely caused by the growing rivalry between the Los Santos Saints and GTA. To combat this
violence, a number of schools in the area imposed zero tolerance policies around things that
could possibly be interpreted as gang symbols or supportive of the gang lifestyle, including
paraphernalia, hand signs, and exposed tattoos at school.
To help fight the gang problem at JHS, Principal Kris Skinner was recruited from
Cleveland High School (CHS), one of the most affected schools in the area when it came to gang
violence. Principal Skinner was the first principal to implement a zero tolerance policy in Metro
City Public Schools and, even though students were upset with the policy and pushed back, CHS
saw dramatic turnaround after the implementation of this policy. A number of students faced
suspension, were banned from sports and extra-curricular activities, or spent weeks in detention.
Principal Skinner helped organize the commemoration ceremony for Sonny, but made it
clear that school rules and the zero tolerance policy extended to school events like football
games. The day of the ceremony was particularly tough for J.L. She and her best friend Tyler,
who was also a close friend of Sonny’s, brought rosaries to the ceremony. Principal Skinner saw
J.L. and Tyler wearing their rosaries at the end of the first half of the game as everyone waited
8
for the commemoration ceremony to begin. Principal Skinner approached J.L. and Tyler right
away. He told them that they could stay for the commemoration, but would need to put their
rosaries away, and could not expose them during the commemoration or game. J.L. was
disappointed, but complied. Tyler did not. He argued with Principal Skinner, claiming that he
would take it out once Principal Skinner walked away. Principal Skinner told Tyler he would
have to leave the game.
A Metro City police officer stationed at Metro City Park told Principal Skinner that she
would escort Tyler from the game. When Tyler still refused to leave, the situation escalated
further, and Principal Skinner claimed that an arrest was necessary for safety. At this point, in
response to the escalating confrontation, other students began taking pictures and videos on their
phones. Other officers came to the scene in light of the disruption. They handcuffed Tyler, and
told him that he was under arrest. During the arrest, Tyler slipped and fell. He sustained an injury
to his head and passed away at the hospital later that night. Many students at JHS witnessed the
arrest and had pictures of the incident on their phones.
News of Tyler’s arrest and death spread nationwide. A particular photo of Tyler with a
bloody head went viral. There were already many protests through the country in response to
recent events involving the deaths of unarmed persons by police officers. Tyler’s passing fueled
tensions in Metro City. Some of the protests turned violent and a police officer was shot at one
protest in Metro City. Religious leaders and leaders within the civil rights community were also
interested in the events because of the religious aspect of the ban on rosaries. Two hashtags,
#SonnysSaints and #IamTyler, appeared on social media and became a popular reference used by
protestors.
9
This was an excruciating experience for J.L. She lost her best friend at a moment when
she was supposed to be celebrating the life of her recently deceased brother. J.L. decided to plan
a commemoration and rally for Tyler. She applied for a Metro City Park permit, planned the
event on Facebook, posted an invitation on Instagram, and invited students from JHS. The event
was planned for after school on December 5, 2014.
Principal Skinner heard students discussing the rally in the hallways, and saw a student
watching a YouTube invitation video for the rally on his phone during class. At this point,
Principal Skinner found the Facebook page, Instagram postings, and video. The video was posted
by J.L. and was so popular that everyone said it “went viral.” Parents of other students contacted
Principal Skinner expressing concern that there may be gang activity and wanted to know that
their children would be safe. Some parents even asked Principal Skinner to cancel the protest.
Principal Skinner contacted the Metro City Police Department (MCPD) and removed J.L.
from class to discuss the event. At the impromptu meeting, Principal Skinner told J.L. that he
supported the idea, and offered to loan J.L. the school podium, but was concerned about violence
and the safety of his students. Principal Skinner told J.L. he was planning on asking MCPD
officers to attend the event. J.L. claimed it would be a peaceful protest and that officers were not
necessary. Principal Skinner wholeheartedly disagreed and told J.L. he was going to request
officer presence anyway. He told J.L. that school rules would be in place at the rally and told J.L.
not to display her rosary.
On the day of the protest, Principal Skinner left school early to bring the podium to Metro
City Park. Already, by the time he arrived, there were already a lot of people gathering. Principal
Skinner noted that a number of his former students from CHS, who were affiliated with GTA,
10
were at the rally. Soon after school let out, there were over 750 people present, including most of
the JHS student population, community members, and news teams that were covering the event.
As J.L. made her way to the park stage there were shouts of support from the crowd.
Partway into her opening speech, J.L. held up her rosary. This infuriated Principal Skinner. He
sprinted to the stage and requested that J.L. give him the rosary. J.L. refused. Skinner had J.L.
removed from the stage and attempted to end the event. J.L. yelled for everyone to remain calm
as she left the stage. At that point, the mood of the crowd quickly changed and chaos erupted.
Students began sitting with linked arms, trash and debris were thrown at police officers and
protesters were fighting with one another. Several arrests were made and many protesters were
injured in the chaos. A number of the people arrested were known Los Santos Saints gang
members who were wearing rosaries around their necks. J.L. was among those arrested.
The next day Principal Skinner suspended J.L. from school and recommended expulsion
to the Metro City Public School (MCPS) School Board. After a disciplinary hearing in front of
the school board, J.L. was expelled. The expulsion resulted in J.L. losing her full scholarship to
Metro City University, and her admission to the University has been put on hold pending
investigation of his expulsion.
J.L. has brought suit against Metro City Public Schools to overturn her expulsion,
arguing: (1) that expelling her for displaying a rosary violates her First Amendment rights, (2)
that even if the school is allowed to prohibit a student from displaying a rosary, the school is not
authorized to expel a student for conduct that takes place off of school property at an event that is
not school sponsored, and (3) that the school policy prohibiting students from displaying gang
symbols is written in terms so unclear that punishing her based on this policy violates her due
process rights and is unconstitutional. The U.S. District Court ruled in favor of MCPS and the
11
Court of Appeals affirmed the decision. J.L. now appeals to the U.S. Supreme Court to determine
whether MCPS violated her First Amendment rights and her right to due process.
Note: Both parties stipulate that any rosaries mentioned in this case are symbolic speech. Both parties stipulate that Jesse does
not challenge the notice or hearing that he received with regards to his suspension or expulsion. All characters, events, laws,
cases, and documents in the packet are fictional, but in many cases are based on actual events and materials.
12
ARGUMENT
I.
MCPS did not violate J.L.’s First Amendment right to free speech when it
expelled J.L. for displaying a prohibited gang symbol because J.L.’s speech was
materially disruptive to a school-sponsored event.
The First Amendment protects an individual’s right to freedom of speech. See U.S. Cons.
Amend. I. Students do not shed their constitutional rights to freedom of speech at the
schoolhouse gate. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). However,
because school officials play essential roles in establishing the standards of conduct that create a
safe school environment and promote student learning, they may regulate speech inconsistent
with the basic educational mission of schools, when it is reasonably foreseeable that the speech
will materially or substantially disrupt the school’s learning environment or harm students. See
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Morse v. Frederick, 551 U.S.
393 (2007); Canady v. Bossier Parish School Bd., 240 F.3d 437 (5th Cir. 2001).
a. J.L.’s conduct was materially disruptive to the commemoration event for
Tyler.
In Tinker, the Supreme Court articulated a standard for when schools may limit student
speech in schools. The Court held that “students have a right to free speech in schools so long as
it does not materially or substantially interfere with the work of the schools.” Any student
conduct that, “for any reason materially disrupts or involves substantial disorder or invasion of
the rights of others,” is not protected by the First Amendment. However, school officials must be
able to show that the prohibition of a particular expression of opinion is based on more than a
“mere desire to avoid the discomfort and unpleasantness” that accompanies an unpopular
viewpoint. Fear of future disruption is not enough to overcome a student’s right to free speech. If
the student speech has not yet caused substantial disruption to the learning environment, officials
13
must show it is reasonable to believe that engaging in the prohibited conduct would cause
substantial disruption. West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (2002).
Here, by displaying a rosary, J.L. was appropriately subjected to disciplinary action from
school officials because rosaries are a symbol of the Los Santos Saints gang, which has been
wreaking havoc throughout New Columbia, and when J.L. displayed her rosary at the
commemoration event, chaos erupted and was followed by injuries and arrests. Principal Skinner
was aware of the Los Santos Saints’ use of the rosary as a gang symbol, and banned all gang
symbols from school to protect his students and inhibit disruption within the classroom. This
school policy is necessary for a safe learning environment in Metro City and the record shows
that when Principal Skinner enacted a similar policy at Cleveland High School gang-related
incidents decreased.
In this instance, it is reasonably likely to believe that displaying a gang symbol would
substantially disrupt the school event and endanger students because there is a history of gang
related activity in the area and known member of the local gangs were at the event. Principal
Skinner’s zero tolerance policy for gang related apparel and symbols is based on his extensive
experience fighting gang violence in schools. The GTA and Los Santos Saints gangs in New
Columbia have caused the death of at least one student and harmed numerous others.
Although J.L. is not part of a gang and says did not intend her speech to be gang-related
activity, the display of a rosary in this context can reasonably be said to be a substantial
disruption to the event. This is similar to West v. Derby, where the court upheld a school’s
decision to discipline a student for drawing a Confederate flag, in violation of school policy,
when there was a history of racial incidents in the school district. The court ruled that in such an
instance the policy barring the display of the Confederate flag could be said to have been enacted
14
for reasons that constituted “more than a mere desire to avoid the discomfort” the accompany an
unpopular viewpoint.
b. The commemoration event for Tyler was a school sponsored event that was
subject to school policies.
Students are subject to disciplinary action anytime they violate a school rule, which J.L.
knowingly and willingly did in this case by displaying a rosary at the commemoration rally. The
Supreme Court has held activities occurring off school grounds to be school activities, and thus
governed by the school speech standard, in circumstances when the school has sponsored or
approved an activity, school personnel were present, the activity occurred during normal school
hours. Morse. In today’s day of social media and modern technology, courts have also held that
students may be disciplined for off campus speech when there is a foreseeable risk that the offcampus speech might reach the schoolhouse gate and create a risk of a substantial disruption to
the school environment. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (2002).
The commemoration event is similar to the parade that was central to “BONG HiTS 4
JESUS” decision in Morse. In Morse, a student was suspended for displaying a banner at a
public parade off of school property. The court agreed with the principal that the banner’s
promotion of drug use, however sarcastic, was a violation of school rules and subject to
regulation. Like the displaying of the banner in Morse, the displaying of the rosary occurred at an
event that was technically off school property—at a public park. In Morse, the court determined
that the plaintiff could not “stand in the midst of his fellow students” at a “school-sanctioned
activity and claim he is not at school.” Here, the commemoration rally was a school-sponsored
event. Even though Metro City Park is technically located off of school property, it is home to
many school-sponsored events including football games and a previous school sponsored
memorial for J.L.’s brother, Sonny. Principal Skinner helped organize, protect, and implement
15
this rally to commemorate a student who passed away while at a previous school event. Principal
Skinner provided police enforcement to protect his students, donated the school podium for the
event, and allowed J.L. to give a speech only after telling J.L. that school rules would be in effect
at the rally.
Furthermore, in Bethlehem Area Sch. Dist., when a student created a website at home and
away from school, the Court held that the student could be subject to school discipline based on
the in-school effects of the website content because it was inevitable that contents of the website
would reach the school. Here, although the actual event took place at a public park, the video
advertising for the event, which contained the prohibited gang symbol, was shown in school,
during class, and most of the JHS student body attended the rally. Therefore, it is clear that it is
reasonably likely the the effects of J.L.’s speech would reach the school itself.
c. Conclusion
The school district properly exercised its authority when it expelled J.L. Conduct that
violates school rules, threatens student safety, substantially disrupts the school’s educational and
civic objectives is subject to disciplinary action deemed fit by the school district. In this case,
that meant expulsion. The fact that J.L. happen to engage in this activity a few hundred feet away
from the school building itself is irrelevant to the harm it caused the school, especially in light of
the schools oversight and involvement in the rally. J.L.’s conduct took place at a schoolsponsored event and substantially disrupted school goals as well as endanger students, and it is
therefore subject to disciplinary action by the school.
16
II.
The JHS school policy prohibiting the display of gang paraphernalia did not
place an undue burden on J.L.’s exercise of religion because it more than
reasonably related to the goal of ensuring student safety.
In addition to protecting an individual’s right to freedom of speech, the First Amendment
protects an individual’s right to free exercise of religion. See U.S. Cons. Amend. I. In cases
where a person claims that their First Amendment rights to both freedom of speech and
religion are violated, the Courts use a balancing test to determine whether a school’s
regulation places an undue burden on the exercise of religion by looking at whether the
regulation has more than a reasonable relation to the stated objective of the regulation.
Chalifoux v. New Caney Indp. Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997).
In Chalifoux, the Court found that the school’s prohibition on wearing rosaries was an
undue burden to free exercise of religion and was not more than reasonably related to the stated
goal of controlling gang activity, because there was only one on campus incident of a gang
member wearing a rosary. In total there were only three known instances of gang members
wearing rosaries to identify themselves as gang members in the community. There was not a
history of violence or incidents relating to the wearing of a rosary.
Here, unlike in Chalifoux, there is a history of gang related violence tied to gang
members who prominently wear rosaries. There is a history of student deaths in a number of
community schools and community related gang violence tied directly to the display of rosaries
because they the Los Santos Saints symbol. In light of the history of gang related violence, the
regulation is does not place an undue burden on free exercise of religion because the school’s
decision to prohibit students from wearing or displaying rosaries is more than reasonably related
to the stated goal of ensuring a safe student environment and promoting learning.
17
III.
MCPS’s ban on displaying gang paraphernalia or wearing gang-related apparel
is not unconstitutionally vague because a person of ordinary intelligence does not
need to guess at the meaning of the policy.
If a rule or regulation is written so unclearly that a person of ordinary
intelligence would have to guess at its meaning the rule or regulation is
unconstitutionally vague in violation of our due process rights. The main
principle is that a rule or regulation violates our due process rights when it fails
to provide adequate notice or fair warning of the conduct it prohibits. Chalifoux;
Stephenson v. Davenport Community School District, 110 F.3d 1303 (1997). This
rule also prevents authority figures from arbitrarily and subjectively enforcing
rules and regulations. Stephenson.
Schools may regulate student speech that is inconsistent with its basic
educational mission, in order to maintain a safe, educational environment.
Tinker; West. Because of this principle, school disciplinary codes need not be as
detailed as a criminal code. However, in a case such as this, when regulations
prohibit religious speech that is otherwise protected by the First Amendment,
courts require that regulations be written in more specific terms. Stephenson.
In Chalifoux, the plaintiffs were prohibited from wearing rosaries outside
their clothing on school premises based on the school dress code that prohibited
students from displaying or wearing gang-related apparel. Rosaries were not
directly listed as gang symbols in the dress code, but were considered to be
“gang-related apparel.” The local “Gang Liaison Officer,” who was responsible for
determining what is and what is not gang-related apparel, informed the school
18
principal that rosaries should be considered gang-related apparel after he was
informed by known gang members that rosaries were being used by a local gang
as a gang identifier. There were two additional on incidents, one that occurred
on school campus, where students who were known to be gang members, were
seen wearing rosaries. There were no physical incidents related to the wearing of
the rosaries.
The court in Chalifoux held that even though school officials must have
flexibility in handling daily problems that arise in schools in order to ensure the
safety of children, the definition of gang-related apparel in this case was not
constitutional because it revealed little about what conduct was actually
prohibited. “Gang-related apparel” was defined as clothing that was “gangrelated.” There was no defining term as to what constituted a gang, or when an
object would be considered gang related.
In Stephenson, where a student was disciplined after a school official and
police officer considered her small tattoo of a cross to be a gang symbol, the court
held that the school regulation prohibiting gang-related activities “such as the
display of ‘colors,’ symbols, signs, etc.” was unconstitutionally vague because it
was unclear what symbols would be considered gang related. Based on the
regulation, common religious symbols could be considered to be gang symbols.
The court stated that because the word ‘gang’ has many historical meanings and
there was no term in the school regulation defining what a ‘gang’ was,
19
prohibiting gang-related activities without further explanation was “fatally
unclear.”
In contrast to both Chalifoux and Stephenson, here, the regulation is not
fatally unclear. The term “gang” in the Jefferson High School Student Handbook
has been narrowed to groups known for “illegal or violent conduct.” Rosaries are
known in Metro City to be symbols of the Los Santos Saints gang and Los Santos
Saints is known for violence and intimidation in the community.
Therefore, because the term is written to apply only to groups that are
involved in “illegal and violent conduct” a person of ordinary intelligence will not
have to guess at its meaning and it is not unconstitutionally vague.
CONCLUSION
For the reasons stated above, the Supreme Court should affirm the decision
of the lower court and hold that (1) MCPS did not violate J.L.’s First Amendment
rights to free speech and free exercise of religion when it expelled her because J.L.’s
conduct at the commemoration rally for Tyler was materially disruptive to a school
sponsored event, and (2) MCPS’s prohibition on gang related apparel is not
unconstitutionally vague because a person of ordinary intelligence need not guess at
its meaning in order to comply with the rule.
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APPENDIX I: CASE LAW SUMMARIES
Tinker v. Des Moines Independent Community School District
1
Facts:
John and Marybeth Tinker, 15 and 13 years old, attended school in Des Moines, Iowa. In
December 1965, they decided to publicize their objections to the war being fought in Vietnam by
wearing a black armband during the holiday season and by fasting on New Year’s Eve. The
Principal of high school became aware of the Tinkers’ plans to wear armbands.
On December 14, 1965, the school adopted a policy that any student wearing an armband to
school would be asked to remove it. If the student refused to remove the arm band, the student
would be suspended until they agreed to return without the armband. The Tinkers were aware of
the regulation that the school authorities adopted. On December 16th, the Tinkers wore black
armbands to school. They were sent home and suspended from school until they agreed to come
back without an armband. They did not return to school until after the planned period for
wearing armbands had expired—that is, until after New Year’s Day. The Tinkers claim that the
school violated their First Amendment right to free speech. The school argues the action was
reasonable in order to prevent disturbance of the school environment.
Discussion:
Students to not shed their constitutional rights to freedom of speech at the schoolhouse gate.
Schools are places for learning, but that does not mean that students do not have voices.
Schooling surely involves the imparting of information and skills society deems important to
student development. However, learning is more than right and wrong answers. Students are not
simply closed circuit recipients of what the school wants them to hear. Schooling also prepares
students with the tools for economic, social and civic life, which includes independent thinking
and voicing of their views, even if imperfectly formed. To accomplish this, school requires the
interchange of ideas.
At the same time, schools have must have the power to create and maintain an environment
where learning can take place. In First Amendment terms, this means that students have a right to
think their own thoughts and to free expression of their ideas, so long as this doesn’t impose on
other people’s rights. In this case, our problem lies in the area where students’ exercise of First
Amendment rights collides with the rules of the school authorities and the need for order.
We believe the best rule to balance student speech rights and school authority is as follows:
students have a right to free speech in schools so long as it does not materially or substantially
interfere with or disrupt the work of schools. Conduct by a student, in class or out of it, which for
any reason materially disrupts classwork or involves substantial disorder or invasion of the rights
of others, is not protected with constitutional guarantee of freedom of speech.
1
393 U.S. 503 (1969)
21
Furthermore, in order for school officials to justify the prohibition of a particular expression of
opinion, they must be able to show there was more than a mere desire to avoid the discomfort
and unpleasantness that always accompanies an unpopular viewpoint.
Here, there is no evidence that shows the Tinkers’ speech would intrude upon the work of the
school or the rights of other students to learn at school. The Tinkers merely planned to go about
their daily schedule while wearing a band of black cloth on their sleeves. They intended to
exhibit their disapproval of the war, to make their views known, and to influence others to adopt
them, through example. The armband is a form of speech. The Tinkers neither interrupted school
activities nor sought to intrude in school affairs or the lives of others. Outside the classrooms, a
few students made hostile remarks to the Tinkers, but there were no threats or acts of violence on
school premises.
The school argues that the action it took was reasonable because it was based upon their fear of a
disturbance to the school environment. However, fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression. For such a prohibition on expression to
be upheld, a school must be able to show it was reasonable for school officials to believe that
engaging in the forbidden conduct would ‘substantially disrupt the operation of the school.’
Here, the action of the school authorities appear to have been based upon an urgent wish to avoid
the controversy which might result from the expression of opposition to the United States’
participation in the Vietnam War.
Conclusion:
Here there are no facts which might reasonably have led school authorities to forecast substantial
disruption to school activities, and no disturbances on the school premises occurred. Therefore,
the school violated the Tinkers’ First Amendment right to free speech.
22
West v. Derby Unified School District No. 260, 206 F.3d 1358 (2002)
Facts:
In early 1995, several racially motivated verbal confrontations occurred between students at Derby
High School. Some white students wore shirts bearing the image of the Confederate flag. Members
of the Aryan Nation and Ku Klux Klan became active off campus circulating materials to students
encouraging racism. Around the same time, graffiti stating such things as “KKK” (Ku Klux Klan)
appeared on campus in bathrooms and on walls and sidewalks. School officials received reports of
racial incidents on school buses and at football games. At least one fight broke out as a result of a
student wearing a Confederate flag headband. The Derby Middle School was not immune from the
racial tensions. Although the tensions were not widespread and involved relatively few students at
the middle school, incidents occurred involving the Confederate flag. These included students
drawing the Confederate flag on their notebooks and arms.
In response to incidents of racial tension between students at Derby High School, the school district
adopted a “Racial Harassment and Intimidation” policy that prohibits students from wearing apparel
that is racially divisive or creates ill will or hatred. The policy resulted in a “marked decline of
incidents of racial harassment and discord” in the school district. At the beginning of each school
year, the school district requires all students at the middle school to review a student handbook which
sets forth the school district's policies, including the harassment and intimidation policy.
On April 14, 1998, during math class at Derby Middle School, T.W. drew a Confederate flag on a
piece of paper at the prompting of another student. Other students warned T.W. not to draw the
Confederate flag but T.W. drew the flag nonetheless. Another student took the drawing and showed
it to the math teacher. Pursuant to the school policy, the Assistant Principal suspended T.W. for three
days. The school does not dispute that T.W. never intended to harass or intimidate any other student
by drawing the Confederate flag.
However, at the beginning of the 1997-1998 school year, T.W. signed an acknowledgment form
stating: “‘I have reviewed and understand the disciplinary policy at DMS as outlined in the DMS
agenda book.’ Nevertheless, T.W. became involved in numerous disciplinary incidents during the
1997-1998 school year. At one point, T.W. received a three-day suspension for calling another
student “Blackie.” After another incident, T.W. had an administrative conference with the school’s
principal, who reviewed the harassment and intimidation policy with T.W. Accordingly, T.W. was
well aware of the school district’s policy prohibiting the drawing of the Confederate flag.
T.W., through his guardians, files this suit asserting that Derby Unified School District violated his
First Amendment right to free speech. The School District claims that the action was reasonable in
order to prevent disturbance of the school environment.
Discussion:
To be sure, T.W.’s display of the Confederate flag could well be considered a form of political
speech to be afforded First Amendment protection outside the educational setting. Even though
students do not shed the constitutional rights to freedom of speech or expression at the schoolhouse
gate, the First Amendment rights of students in public schools are not automatically coextensive with
the rights of adults in other settings, and must be applied in light of the special characteristics of the
23
school environment. A school need not tolerate student speech that is inconsistent with its basic
educational mission even though the government could not censor similar speech outside the school.
The court ruled in Tinker that where school authorities reasonably believe that a student’s
uncontrolled exercise of expression might substantially interfere with the work of the school or
impinge upon the rights of other students, they may forbid such expression. Of course, school
officials’ “undifferentiated fear or apprehension” of a disturbance is not enough to overcome a
student’s right to freedom of expression. The evidence in this case, however, reveals that based upon
recent past events, Derby Unified School District officials had reason to believe that a student’s
display of the Confederate flag might cause a substantial disruption in the school environment.
School officials in Derby had evidence from which they could reasonably conclude that possession
and display of Confederate flag images would likely lead to a material and substantial disruption of
the school environment. The district experienced a series of racial incidents or confrontations in
1995, some of which were related to the Confederate flag. The incidents included hostile
confrontations between students at school and at least one fight at a high school football game. The
Racial Harassment policy enacted in response to this situation was clearly something more than a
mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint.
The history of racial tension in the district made administrators’ and parents’ concerns about future
substantial disruptions from possession of Confederate flag symbols at school reasonable. The fact
that a full-fledged brawl had not yet broken out over the Confederate flag does not mean that the
school district was required to sit and wait for one. In this case, the district had a reasonable basis for
forecasting disruption from display of such items at school, and its prohibition was therefore
permissible. The district has the power to act to prevent problems before they occur; it is not limited
to prohibiting and punishing conduct only after it causes a disturbance.
The school’s assistant principal had reviewed the harassment and intimidation policy with T.W.
numerous times. Accordingly, T.W. was well aware of the school district’s policy prohibiting the
drawing of the Confederate flag. Although T.W.’s argues that his drawing of the Confederate flag
was peaceful and nonthreatening, we believe that holds no bearing in this case. Simply put, T.W.
knew that drawing a confederate flag was against school policy and that the symbol had a chance to
substantially disrupt the school environment.
Conclusion:
We conclude T.W.’s First Amendment free speech challenge to the school district’s policy fails. The
history of racial tension made it reasonable to forecast a substantial disruption at Derby Middle
School and, thus, the policy disciplining T.W. for three days after he drew a picture of the
Confederate flag is constitutional.
24
Canady v. Bossier Parish School Board
1
Facts:
In 1997, the Louisiana Legislature passed a law allowing school boards the discretion to
implement mandatory uniforms. The Bossier Parish School Board (BPSB) adopted a policy of
mandatory uniforms that allowed student to choose between two colors of polo or oxford shirts
and navy or khaki pants.
Several parents of students in BPSB filed suit. The parents argued that the dress code violated
their children’s First Amendment right to free speech, failed to account to account for religious
preferences, and that BPSB’s reasons for implementing the uniform policy were unfounded. The
school officials responded by showing statistics that the uniform policy led to a reduction in
behavioral problems, disciplinary actions, and a rise in test scores.
Discussion:
A person’s choice of attire may be protected by the First Amendment when it the choice to wear
a certain clothing is coupled with the intent to express a certain view point or idea. To decide
whether conduct is trying to communicate a message, we must first ask whether there was intent
to convey a particular message. We must then ask whether the message would likely be
understood by those who viewed it. When assessing a claim, we look to the activity, combined
with the factual context and environment in which it was undertaken.
A person's choice of clothing is infused with intentional expression on many levels. In some
instances, clothing functions as pure speech. A student may choose to wear shirts or jackets with
written messages supporting political candidates or important social issues. Words printed on
clothing qualify as pure speech and are protected under the First Amendment. Clothing may also
symbolize ethnic heritage, religious beliefs, and political and social views. Individuals regularly
use their clothing to express ideas and opinions. Just as the students in Tinker chose to wear
armbands in protest of the Vietnam War, student may wear color patterns or styles with the
intent to express a particular message. Finally, students often choose their attire with the intent to
signify the social group to which they belong, their participation in different activities, and their
general attitudes toward society and the school environment. While this sort of expression may
not warrant First Amendment protection in every instance, here, we will assume the First
Amendment applies to students’ choice of clothing.
In schools, educators have an essential role in regulating school affairs and establishing
appropriate standards of conduct. Schools may regulate speech that is inconsistent with their
basic educational mission, even though the government could not censor similar speech outside
of the school. School boards, not courts, have the authority to decide what constitutes appropriate
behavior and dress in public schools.
1 240 F.3d 437 (5th Cir. 2001)
25
In Tinker, where the school tried to suppress a specific student viewpoint, the court held a school
must demonstrate that the expression would “substantially interfere with the work of the school
or impinge upon the rights of other students” in order to regulate the speech.
However, the Supreme Court has ruled that “viewpoint neutral” policies which govern student
speech may be constitutional. Viewpoint neutral policies are policies that are not directed at
suppressing the specific content of any particular message. For example, a dress code policy that
prohibits all tank tops would likely be considered viewpoint neutral, while a policy prohibiting
only tank tops that are a certain color, or display a certain message, would likely not be
considered viewpoint neutral.
Viewpoint neutral policies may be constitutional when a policy: (1) furthers an important
government interest, like maintaining an environment that is conducive to learning, that is
unrelated to the suppression of student expression, and (2) the restrictions on First Amendment
activities are no more than is necessary to facilitate that interest.
Here, BPSB’s mandatory uniform policy is viewpoint neutral, and improving the educational
process is undoubtedly an important interest for BPSB. The policy was enacted to increase test
scores and reduce disciplinary problems throughout the school system. The purpose is in no way
related to the suppression of student speech. Although students are restricted from wearing
clothing of their choice at school, the students remain free to wear what they want after school
hours. Students may still express their views through other mediums during the school day. The
uniform requirement does not bar the important “personal intercommunication among students”
necessary to an effective educational process.
Conclusion:
BPSB did not violate students’ First Amendment rights when it implemented a policy limiting
school uniforms to two colors of polo or oxford shirts and navy or khaki pants, because the
policy did not aim to suppress any student speech or expression. It instead was enacted to
improve educational goals such as increasing test scores and improving student behavior.
26
Stephenson v. Davenport Community School District
1
Facts:
Stephenson tattooed a small cross between her thumb and index finger. She intended her tattoo to be
a form of “self-expression.” She did not consider a tattoo a religious symbol. She also did not intend
the tattoo to communicate gang affiliation. Stephenson had no record of disciplinary problems and
was never involved in gang activity.
While Stephenson was attending West High School, gang activity within the District's schools
increased. Students brought weapons to class and violence resulted from gang members threatening
other students who displayed rival gang signs or symbols. Furthermore, gang members attempted to
intimidate students who were not members into joining their gangs. The District worked closely with
local police to address these problems. The Superintendent sent a letter to parents that included the
District's “Proactive Disciplinary Position K–12.” That regulation stated:
“Gang related activities such as display of ‘colors', symbols, signals, signs, etc., will not be
tolerated on school grounds. Students in violation will be suspended from school and/or
recommended to the Board for expulsion.”
There was no definition of “gang related activities” or “ ‘colors', symbols, signals, signs, etc.,” in the
regulation.
Stephenson visited her school guidance counselor to discuss her class schedule shortly after the letter
was sent out. The guidance counselor noticed Stephenson's tattoo, considered it a gang symbol, and
notified Assistant Principal Foy. Foy consulted Police Officer Holden who, based on a drawing and
description of the tattoo, stated his opinion that it was a gang symbol. Aside from the tattoo, there
was no evidence that Stephenson was involved in gang activity and no other student complained
about the tattoo or considered it a gang symbol.
Foy phoned Stephenson's mother and informed her that Stephenson was suspended for the day
because her tattoo was gang-related. Stephenson's parents met with Foy the following morning and
agreed that Stephenson would continue to attend school on a temporary basis with the tattoo
covered. Officer Holden examined Stephenson's tattoo and confirmed his earlier opinion that it was a
gang symbol. Holden contacted another officer who, without viewing the tattoo, also considered it a
gang symbol. Foy informed Stephenson's parents that she needed to remove or alter the tattoo,
otherwise the school would initiate disciplinary procedures, suspend Stephenson for ten days, and
recommend expulsion. Stephenson chose not to alter the tattoo because she did not want a larger
tattoo and feared school administrators or police would also classify it as a gang symbol. She then
met with a tattoo specialist who advised her that laser treatment was the only effective method to
remove the tattoo. The procedure, which cost about $500, left a scar on Stephenson's hand.
Stephenson claims the policy is too vague and unclear to be enforced because it does not define what
a “gang symbol is and that school violated her due process rights by punishing her.
1
110 F.3d 1303 (1997)
27
Discussion:
A regulation may be considered unconstitutionally vague when it fails to provide people adequate
notice or fair warning of the conduct it seeks to prohibit. This is known as the “void-for-vagueness”
rule. It comes from the due process clause of the Fifth and Fourteenth Amendments. A regulation
may be considered void-for-vagueness if it is so unclearly written that a person of ordinary
intelligence must guess at its meaning. This doctrine is also used to prevent inconsistent or subjective
application of a regulation by authority figures.
Here, based on the wording of the regulation, common religious symbols may be considered gang
symbols. The meaning of Stephenson’s tattoo, a cross, is contested. Stephenson considers it simply a
form of “self-expression” while the school considers it a gang symbol. A significant portion of the
world’s population, however, views it as representation of Christian faith.
School disciplinary rules need not be as detailed as a criminal code, because school officials need to
have flexibly to create and maintain environments that promote student safety and learning. Tinker.
However, when policies regulate expression that is otherwise protected by the First Amendment, the
doctrine demands that we require that the regulation be written in more specific terms than we might
otherwise require if the action was not protected by the First Amendment.
We usually look to prior case law or prior application of the regulation to determine the meaning of a
regulation. Here, there is no prior application of the regulation to guide us, so we are left with only
the undefined meaning of the term ‘gang’ itself. The word ‘gang’ has many meanings in dictionaries
and in historical context. There is no evidence that the word “gang” itself has ever been limited to a
group having the purpose of committing criminal offenses. It has quite frequently been used in
reference to groups of two or more people who are not suspected of criminality or anything that is
unlawful. We have found no case that has upheld a regulation which prohibits “gang” activity
without defining the term. The District regulation does not provide adequate notice of the prohibited
conduct because the term “gang,” without more explanation is fatally unclear.
Additionally, because the term is not defined, school administrators are given too much discretion to
decide what represents a gang symbol. Gang symbols take many forms and are constantly changing.
Because the regulation fails to define the term at all, and consequently, fails to provide meaningful
guidance for those who enforce it. The District must define with some care the gang related activities
it wishes students to avoid. The District regulation, therefore, violates a central purpose of the
vagueness doctrine that “if arbitrary and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them.”
Finally, there is no evidence that District students perceived Stephenson’s tattoo as a gang symbol or
complained about the tattoo during the thirty months she had it on her hand. The regulation contains
no requirement that students consider a symbol gang related before disciplinary action is taken.
Conclusion:
We hold that the regulation violates the central purposes of the vagueness doctrine because it fails to
provide adequate notice informing students of unacceptable conduct and fails to offer clear guidance
for those who apply it. A person of common intelligence must guess at the undefined meaning of
“gang related activities.” The District regulation is unconstitutionally void-for-vagueness.
28
Chalifoux v. New Caney Independent School District
1
Facts:
Petitioners wore white plastic rosaries outside their shirts as a way of displaying their religious
faith. For several weeks, they wore their rosaries at school without comment from school
officials.
The NCISD dress code is outlined in the Student Handbook. The handbook states:
“The following gang-related apparel has been prohibited in school or at any school-related function:
1. Oversized apparel, including baggy pants which are worn low on the waist; overalls with one
strap unfastened; pants that are cut off below the knees and worn with knee socks. (Pants should
fit at the waist and have properly sewn hems).
2. Any attire which identifies students as a group (gang-related) may not be worn to school or
school-related activities.
3. Baseball caps, hair nets, bandanas, sweatbands.
Officer Wootten, the “Gang Liaison Officer” for the local police department, approached
Petitioners on campus one day and told them they couldn’t wear their rosaries outside their
clothing because the school had identified rosaries to be gang-related apparel. Petitioners were
instructed to wear their rosaries inside their shirts. Petitioners were not members of any gang,
when they wore the rosaries they were never approached by gang members, and the display of
rosaries caused no disruption or altercations at the high school.
Officer Wootten investigates gang activity in New Caney Independent School District (NCISD)
and is responsible for determining what is and is not “gang-related apparel.” Once Wootten
determines that a particular item is “gang-related” he tells the high school principal who then
decides whether to prohibit the item. Wootten classified rosaries as gang-related apparel after
receiving information from an admitted member of the “United Homies” gang, which operated
within NCISD, that United Homies members were wearing rosaries as gang symbols. Shortly
after receiving that information,
Wootten stopped a vehicle off campus containing five members of the United Homies gang for
violating traffic laws. Two of the individuals in the car where wearing rosaries. On one occasion,
the principal of the high school saw three students known to be gang members wearing rosaries
on school campus. They were asked to stop wearing the beads outside their clothing. Based upon
these incidents, the principal determined that wearing rosaries as a necklace outside shirts should
be prohibited under the NCISD ban on gang-related apparel.
Petitioners claim that NCISD violated their First Amendment rights to free speech and free
exercise of religion by prohibiting them from wearing rosaries outside their clothing while on
school premises, and their Fourteenth Amendment right to due process because the regulation is
too vague to be followed.
1
976 F. Supp. 659 (S.D. Tex. 1997)
29
Discussion:
First Amendment Claims
It is well settled that the First Amendment protects not only verbal and written expression, but also
symbols and conduct that constitute “symbolic speech.” Here, the wearing of a rosary constitutes
symbolic speech because the uncontested evidence at trial demonstrated that Petitioners wore their
rosaries with the intent to communicate their Catholic faith to others.
According to Tinker v. Des Moines, the Respondents, NCISD, must show that Petitioners’ religious
speech caused a substantial disruption of or material interference with schools activities in order for
the prohibition on wearing the rosaries to be upheld. More than mere speculation about disruption
and interference is required.
Here, although Petitioners wore their rosaries outside their shirts for several months, they were never
misidentified as gang members nor approached by gang members. There was also no evidence that
they attracted the attention of other students because of their rosaries. Respondents have failed to
show any evidence of hostility from students at the high school or any other threat of interference
with school safety. The only evidence presented by Respondents of gang members wearing rosaries
on campus was one incident where three students wore rosaries as a gang identifier. There was
insufficient evidence of actual disruption at the high school and insufficient evidence for the high
school to anticipate a disruption and justify the infringement on Petitioners’ religiously-motivated
speech.
Additionally, here the Petitioners raise claim that the prohibition on wearing their rosaries violates
their free exercise of religion. To establish a free exercise of religion claim under the First
Amendment, Petitioners must first show they have a sincerely held religious belief that is burdened
by the school’s regulation.
Here, Respondents do not dispute that Petitioners wore their rosaries for religious reasons, and it is
well known that the rosary is deeply rooted in Catholic beliefs. This is not a situation where a person
adopts a random object as a religious symbol and now seeks First Amendment protection for it—
Petitioners took an object central to Catholicism and extended its presence to their daily, public lives.
Thus, Petitioners have a sincerely held religious belief that is protected by the First Amendment.
In cases where a person claims that their First Amendment rights to both free speech and free
exercise of religion are violated, we must use a balancing test to determine whether the school’s
regulation places an “undue burden” on the exercise of religion by looking at whether the regulation
has more than a “reasonable relation” to the Respondents’ stated objective of regulating gang activity
on campus.
Here, the prohibition on wearing rosaries violates Petitioners’ First Amendment Rights because there
are number of more effective means available to NCISD, other than a blanket ban on wearing
rosaries, to control gang activity and ensure the safety of its schools. This is particularly true where,
as here, the evidence showed only three instances of alleged gang members wearing rosaries as gang
identifies, with only one of those incidents occurring on campus. We find that the regulation places
an undue burden on Petitioners’ rights to free exercise of religion because Petitioners seek to display
their rosaries as sincere expressions of their religious beliefs and NCISD’s restriction on rosaries
does not have more than a reasonable relation to regulating gang activity in the school district.
30
“Void-for-Vagueness”
Petitioners also argue the school’s ban on “gang-related apparel” is unconstitutionally vague.
Petitioners argue that the ban on gang-related apparel fails to define the conduct it prohibits in a way
that would allow an ordinary person to understand its requirements. Respondents argue that school
administrators need a certain amount of discretion to maintain order on a daily basis, and a more
relaxed standard should be applied in analyzing this regulation.
Violence upon and intimidation of students in public schools is unacceptable. Reasonable measures
may be employed by school districts, administrators and teachers to ensure the safety of children and
to permit them to pursue their learning experience. We do not doubt the need for school officials to
have flexibility in handling daily problems that arise in public school districts. Because of that need
for flexibility, school disciplinary rules do not need to be as detailed as a criminal code which
imposes criminal sanctions. However, in a case like this one, where Petitioners claim their First
Amendment rights to free speech and free exercise of religion have been violated, the regulation
must be written more clearly and with more specificity than we would otherwise require.
Here, the definition in the handbook reveals little about what conduct is actually prohibited. It is a
well-recognized principle of grammar that it is inappropriate to define a word by using the same
word in the definition. Because “gang-related apparel” is defined as attire which is “gang-related,”
the definition is ambiguous. Additionally, the terms “any attire which identifies students as a group”
modify “gang-related apparel” in such a way that it could include many extracurricular groups at
school that use certain attire or symbols for identification. While there are a number of specific items
of clothing that are considered “gang-related,” rosaries are not included on the list.
Therefore, we find that the student handbook lacks a sufficient definition for “gang-related apparel,”
and because rosaries are not included on any list of gang-related apparel, the regulation failed to
provide adequate notice to Petitioners regarding prohibited conduct.
Conclusion:
The Court finds that NCISD’s prohibition on gang-related apparel, and its ban on rosaries in
particular, violates Petitioners’ rights to free speech and free exercise of religion, and is void-forvagueness.
31
Morse v. Frederick
1
Facts:
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska on its way to the
winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of
Juneau-Douglas High School (JDHS) while school was in session. Deborah Morse, the school
principal, decided to permit staff and students to observe the parade of torchbearers pass through
from the either side of the street. Joseph Frederick, a JDHS senior, joined other students and
community members outside to watch the event. As the torchbearers and camera crews passed by
Frederick and his friends unfurled a 14-food banner bearing the phrase “BONG HiTS 4 JESUS.”
Principal Morse immediately crossed the street and demanded that the banner be taken down,
consistent with established school policy prohibiting such messages at school events. Morse
confiscated the banner and told Frederick to report to her office, where she suspended him for 10
days. Principal Morse explained that she took down the banner because it violated school policy that
prohibits any public expression that advocates the use of substances that are illegal to minors.
Frederick sued alleging that the JDHS and Morse had violated his First Amendment rights to free
speech. The school argued that Frederick’s speech occurred during a school-sponsored event and his
speech gave rise to a risk of substantial disruption.
Discussion:
The question is whether or not Frederick’s speech constitutes school speech. We reject Frederick’s
argument that this case does not qualify as a school speech case. The event occurred during normal
school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” and
the school rules expressly provide that pupils in “approved social events and class trips are subject to
rules for student conduct.” Teachers and administrators were interspersed among the students and
charged with supervising them. The high school band and cheerleaders performed. Frederick,
standing among other JDHS students, across the street from the school, directed his banner toward
the school, making it plainly visible to most students. Under these circumstances, we agree with the
school that Frederick cannot “stand in the midst of his fellow students, during school hours, at a
school-sanctioned activity and claim he is not at school.”
The question thus becomes where a principal may, consistent with the First Amendment restrict
student speech at a school event, when that speech is reasonably viewed as promoting illegal drug
use. We hold that she may. School principals have a difficult job, and a vitally important one. When
Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—
on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in
violation of established school policy—and that failing to act would send a powerful message to the
students in her charge, including Frederick, about how serious the school was about the dangers of
illegal drug use. The First Amendment does not require schools to tolerate at school events student
expression that contributes to those dangers.
Conclusion:
Principal Morse did not violate Frederick’s right to free speech when she confiscated his banner and
suspended him in violation of school policy.
1
551 U.S. 393 (2007)
32
J.S. ex rel H.S. v. Bethlehem Area School District
1
Facts:
In the spring of 1998, J.S. was an eighth grade student at Nitschmann Middle School (NMS). J.S
created a web site on his home computer that was entitled “Teacher Sux.” It consisted of a number of
web pages that made derogatory, profane, offensive, and threatening comments, primarily about the
student’s algebra teacher, Mrs. Fulmer.
One page was entitled “Why Fulmer Should be Fired.” This page set forth, again in degrading terms,
that because of her physique and her disposition, Mrs. Fulmer should be terminated from her
employment. Another animated web page contained a picture of Mrs. Fulmer with images from the
cartoon “South Park” with the statement “That’s Right Kyle. She’s a bigger B**** than your mom.”
Yet another web page morphed a picture of Mrs. Fulmer’s face into that of Adolph Hitler and stated
“The new Fulmer Hitler Movie. The Similarities Astound me.” The most striking part of the website
was captioned “Why Should She Die?”
Ultimately, students, faculty and administrators from the school viewed the web site. J.S. told other
students about the website and showed it to another student at school. A middle school teacher
learned of the website and told the principal. The principal, believing the threats on the website to be
serious, convened a faculty meeting. The members of the faculty were informed there was a problem
at the school. However, the teachers were not told of the specific nature of the situation.
Mrs. Fulmer suffered from stress, anxiety, loss of appetite, loss of sleep, loss of weight, and a general
sense of loss of well being as a result of viewing the website. Mrs. Fulmer was unable to finish the
school year and was granted medical leave. NMS ultimately expelled J.S.
J.S. sued NMS. He claims that by disciplining him, NMS violated his First Amendment free speech
rights. He alleges NMS was not justified in regulating his speech because it was protected out-ofschool speech since it did not occur during a school-sponsored activity.
NMS argues that school officials may regulate off-campus behavior when the off-campus behavior
creates a foreseeable risk of reaching the student population and causing both individual harm in the
form of bullying, and a substantial disruption to the work and discipline of the school. NMS contends
that J.S. created a web-page which singled out Mrs. Fulmer for harassment and it was foreseeable
that the off-campus conduct would reach the school and create a substantial disruption in the school.
Discussion:
J.S. argues that his conduct was protected by some higher level of First Amendment protection
because it took place at home after school. The school argues that J.S.’s speech occurred on campus
and should be analyzed using the rule set forth in Tinker governing speech in schools. These
argument raise the question of where the speech occurred. This is a threshold issue that must be
resolved to determine if the unique concerns regarding the school environment are even implicated,
i.e., is it on campus speech or purely off-campus speech?
1
807 A.2d 847 (2002)
33
Had J.S. created the “Teacher Sux” website during school hours, using a school-provided computer
and Internet connection, this case would be more clear-cut, as the question of where speech that was
transmitted by the Internet occurred would not come into play.
Regardless of where his speech originated, if it can be reasonably inferred that J.S. intended the
speech to reach school grounds, and the speech did reach school grounds, we may find there is a
sufficient nexus between the website and the school campus to consider the speech as occurring oncampus.
When J.S. pushed his computer’s keys in his home, he knew that the electronic effects would be
published beyond his home and could reasonably be expected to reach the school or impact the
school environment. He also knew that his website would be accessed by NMS students and the
fallout from his conduct and speech would be felt in the school itself.
The record clearly reflects that the off-campus website was accessed by J.S. at school and was shown
to a fellow student. While it is less certain exactly what portions of the website the student viewed,
J.S., nevertheless, facilitated the on-campus nature of the speech by accessing the web site on a
school computer in a classroom, showing the website to another student, and by informing other
students at school of the existence of the website. Also, faculty members and the school
administration accessed the website at school. Importantly, the website was aimed not at a random
audience, but at the specific audience of students and others connected with this particular School
District. Thus, it was inevitable that the contents of the website would pass from students to teachers,
inspiring circulation of the web page on school property.
Conclusion:
The school did not violate J.S. First Amendment rights by disciplining him. A student may be
disciplined for speech, even speech occurring off school grounds, when it is foreseeable that the offcampus speech might (1) reach the campus and (2) create a risk of harm to an individual or
substantial disruption within the school environment.
34
APPENDIX B: EVIDENCE
EXHIBIT A: Metro City Public Schools Student Parent Handbook
35
Introduction
The regulations, policies, and procedures contained herein are promulgated
pursuant to the authority granted to the Metro City Board of Education and the Jefferson
High School administration by State of New Columbia Code §2625 in order to promote
student safety and a productive learning environment.
The Metro City Public Schools Handbook includes information about policies,
regulations and practices parents and families will find critical to navigate the school
system. It is not intended to include a comprehensive set of all MCPS policies and practices,
and is subject to change. The content provided in this document is current as of the 20142015 School Year.
Freedom of Speech/Expression
The Metro City Board of Education believes that free inquiry and exchange of ideas are
essential parts of a democratic education. The Board respects students’ rights to express
ideas and opinions, take stands on issues, and support causes, even when such speech is
controversial or unpopular.
Students shall have the right to exercise freedom of speech and of the press including, but
not limited to, the use of bulletin boards; the distribution of printed materials or petitions;
the wearing of buttons, badges, and other insignia; and the right of expression in official
publications.
Students are prohibited from making any expressions or distributing or posting any
materials that are obscene, libelous, or slanderous. Students also are prohibited from
making any expressions that so incites students as to create 1) a clear and present danger of
the commission of unlawful acts on school premises, 2) the violation of school rules, or 3)
substantial disruption of the school’s orderly operation.
The Board or School Administrator shall not discipline any high school student solely on the
basis of speech or other communication that would be constitutionally protected when
engaged in outside of school, but may impose discipline for harassment, threats, or
intimidation unless constitutionally protected.
A student shall be subject to discipline for off-campus expression when such expression
poses a threat to the safety of other students, staff, or school property, or substantially
disrupts the educational program. The Board or School Administrator shall document the
impact the expression had or could be expected to have on the school program.
Vandalism and Graffiti
The Board desires to enhance student learning by striving to provide an environment where
students and staff can feel safe and secure and can take pride in their school. To that end,
the School Administrator shall develop strategies for preventing graffiti and vandalism on
school grounds, including collaborating with local law enforcement and city and county
officials, as appropriate, to help develop a coordinated response to graffiti and vandalism in
the community.
36
As appropriate, the School Administrator may contact local law enforcement in instances
when the graffiti is repetitive, identifies particular targets or groups, identifies the
perpetrator, and/or contains incitements to violence, threats, or intimidation.
A student who commits an act of vandalism or graffiti on school grounds shall be subject to
disciplinary action, including, but not limited to, suspension or expulsion in accordance
with Board policy and administrative regulation.
Dress and Grooming
The Board believes that appropriate dress and grooming contribute to a productive learning
environment. The Board expects students to give proper attention to personal cleanliness
and to wear clothes that are suitable for the school activities in which they
participate. Students’ clothing must not present a health or safety hazard or a distraction
which would interfere with the educational process.
A student who violates dress and grooming standards shall be subject to appropriate
disciplinary action.
Gang-Related Apparel
The School Administrator, staff, and parent/guardians at a school may establish a
reasonable dress code that prohibits students from wearing gang-related apparel when there
is evidence of gang presence that disrupts or threatens to disrupt the school’s activities.
Gang-related apparel, bandannas, jewelry, hats, chains are not permitted. Clothing that by
color, arrangement, trademark or symbol reasonably denotes membership in a gang, clique,
or group known for illegal or violent conduct, and/or grooming that reasonably denotes
gang activity is not permitted. Apparel or jewelry promoting drugs, alcohol, or obscene
vulgar or questionable messages is not allowed.
Any violation of dress requirements, which the school official suspects is symbolic of gang
affiliation or behavior, will be reported to the police. Students who violate the dress code
will be subject to disciplinary action.
Destruction of School Property
Destruction of school property as a result of gross carelessness, a violation of school rules,
or intentional damaging is prohibited. Students and parents will be held responsible and
damages will be assessed against the student or parents.
A student destroys school property may be subject to disciplinary action.
Disciplinary Procedures
The Board desires to provide a safe, supportive, and positive school environment conducive
to student learning and to prepare students for responsible citizenship by fostering selfdiscipline and personal responsibility. The Board believes that high expectations for
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student behavior, use of effective school and classroom management strategies, and parent
involvement can minimize the need for discipline.
The School Administrator shall approve a complement of effective, age-appropriate
strategies for correcting student behavior. Such strategies may include, but are not limited
to, conferences with students and their parents/guardians; use of study, guidance, or other
intervention-related teams; or participation in a restorative justice program. Staff shall use
preventative measures and positive conflict resolution techniques whenever
possible. Disciplinary measures that may result in loss of instructional time or cause
students to be disengaged from school, such as suspension and expulsion, shall be imposed
only when other means of correction have failed.
Staff shall enforce disciplinary rules fairly, consistently, and in accordance with the district’s
nondiscrimination policies.
Grounds for Suspension or Expulsion
Any student shall be subject to suspension when it is determined that he/she:
1. caused or attempted to cause damage to school property or private property;
2. disrupted school activities or otherwise willfully defied the valid authority of
supervisors, teachers, administrators, other school officials, or other school
personnel engaged in the performance of their duties;
3. violated the dress and grooming code or the gang-related apparel code; or
4. knowingly received stolen school property.
Any student shall be subject to expulsion only when it is determined that he/she:
1. caused, attempted to cause, or threatened to cause physical injury to another person
or willfully used force or violence upon another person;
2. incited or participated in or carried out a riot or committed any act of violence in
furtherance of a riot;
3. possessed, sold, or otherwise furnished any firearm, knife, explosive, or other
dangerous object;
4. committed or attempted to commit a sexual assault; or
5. engaged in harassment, threats, or intimidation against district personnel or
students that is sufficiently severe or pervasive to have the actual and reasonably
expected effect of materially disrupting classwork, creating substantial disorder, and
invading rights of school personnel or students by creating an intimidating or hostile
educational environment.
When the Board or School Administrator initiates a an expulsion of a student, the Board or
School Administrator shall provide the student and his/her parent/guardian with written
notice of a hearing by registered or certified mail.
At said hearing the Board will make a decision whether to expel. Should the Board decide to
expel, the Board will issue an order of expulsion stating the reasons for and terms of the
expulsion.
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EXHIBIT B: Instagram Post
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EXHIBIT C: Video posted by J.L. on social media
Link to video: http://youtu.be/7WmARMV3mXU
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EXHIBIT D: Rosaries
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EXHIBIT E: Metro City Paper Article
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SPECIAL THANKS
The Marshall-Brennan Constitutional Literacy Project
would like to thank the following people for dedicating their time and
efforts to help with the writing of this year’s moot court problem.
Melinda Cooperman, Gharrett Favinger, Rebecca Kelly
Golfman, and James Toliver
This year’s moot court problem was written as part of a mock trial/moot
court collaboration project between the Marshall-Brennan
Constitutional Literacy Project and the Street Law Clinic at
Georgetown University Law Center. We would like to thank the
Georgetown University Street Law Clinic for partnering with us for this
unique mock trial/moot court collaboration. Thank you to the following
people for all the work they dedicated to writing the mock trial and
creating all of the evidence.
Jessica Gallagher, John Trevor Gladych, Efrain Marimon,
and
Richard L. Roe
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