SUMMER INSTITUTE
June 24-26, 2014
Wynar v. Douglas County School District
No. 11-17127 (9th Cir. August 29, 2013)
Cases Relied Upon
Q: Under what circumstances, if any, are school officials permitted to discipline
students for off-campus speech?
Counsel for both sides relied on the following cases (excerpted below):
Tinker v. Des Moines, 393 U.S. 503 (1969)
First Amendment rights, applied in light of the special characteristics of the school
environment, are available to teachers and students. It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50
years. In Meyer v. Nebraska (1923), and Bartels v. Iowa (1923), this Court, in opinions by Mr.
Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment
prevents States from forbidding the teaching of a foreign language to young students.
Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of
teacher, student, and parent. See also Pierce v. Society of Sisters (1925); West Virginia v.
Barnette; McCollum v. Board of Education (1948); Wieman v. Updegraff (1952) (concurring
opinion); Sweezy v. New Hampshire (1957); Shelton v. Tucker (1960); Engel v. Vitale (1962);
Keyishian v. Board of Regents (1967); Epperson v. Arkansas (1968).
In West Virginia v. Barnette, this Court held that, under the First Amendment, the student in
public school may not be compelled to salute the flag. Speaking through Mr. Justice
Jackson, the Court said:
The Fourteenth Amendment, as now applied to the States, protects the citizen against the State
itself and all of its creatures -- Boards of Education not excepted. These have, of course, important,
delicate, and highly discretionary functions, but none that they may not perform within the limits
of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its
source and teach youth to discount important principles of our government as mere platitudes.
On the other hand, the Court has repeatedly emphasized the need for affirming the
comprehensive authority of the States and of school officials, consistent with fundamental
constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v.
Arkansas; Meyer v. Nebraska. Our problem lies in the area where students in the exercise of
First Amendment rights collide with the rules of the school authorities.
.....
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In order for the State in the person of school officials to justify prohibition of a particular
expression of opinion, it must be able to show that its action was caused by something
more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint. Certainly where there is no finding and no showing
that engaging in the forbidden conduct would "materially and substantially interfere with
the requirements of appropriate discipline in the operation of the school," the prohibition
cannot be sustained. Burnside v. Byars.
In the present case, the District Court made no such finding, and our independent
examination of the record fails to yield evidence that the school authorities had reason to
anticipate that the wearing of the armbands would substantially interfere with the work of
the school or impinge upon the rights of other students. Even an official memorandum
prepared after the suspension that listed the reasons for the ban on wearing the armbands
made no reference to the anticipation of such disruption.
On the contrary, the action of the school authorities appears to have been based upon an
urgent wish to avoid the controversy which might result from the expression, even by the
silent symbol of armbands, of opposition to this Nation's part in the conflagration in
Vietnam. It is revealing, in this respect, that the meeting at which the school principals
decided to issue the contested regulation was called in response to a student's statement to
the journalism teacher in one of the schools that he wanted to write an article on Vietnam
and have it published in the school paper.
It is also relevant that the school authorities did not purport to prohibit the wearing of all
symbols of political or controversial significance. The record shows that students in some
of the schools wore buttons relating to national political campaigns, and some even wore
the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of
armbands did not extend to these. Instead, a particular symbol -- black armbands worn to
exhibit opposition to this Nation's involvement in Vietnam -- was singled out for
prohibition. Clearly, the prohibition of expression of one particular opinion, at least
without evidence that it is necessary to avoid material and substantial interference with
schoolwork or discipline, is not constitutionally permissible.
In our system, state-operated schools may not be enclaves of totalitarianism. School
officials do not possess absolute authority over their students. Students in school, as well as
out of school, are "persons" under our Constitution. They are possessed of fundamental
rights which the State must respect, just as they themselves must respect their obligations
to the State. In our system, students may not be regarded as closed-circuit recipients of only
that which the State chooses to communicate. They may not be confined to the expression
of those sentiments that are officially approved. In the absence of a specific showing of
constitutionally valid reasons to regulate their speech, students are entitled to freedom of
expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school
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officials cannot suppress "expressions of feelings with which they do not wish to contend."
Burnside v. Byars.
In Meyer v. Nebraska, Mr. Justice McReynolds expressed this Nation's repudiation of the
principle that a State might so conduct its schools as to "foster a homogeneous people." He
said:
In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven
into barracks and intrusted their subsequent education and training to official guardians.
Although such measures have been deliberately approved by men of great genius, their ideas
touching the relation between individual and State were wholly different from those upon which
our institutions rest; and it hardly will be affirmed that any legislature could impose such
restrictions upon the people of a State without doing violence to both letter and spirit of the
Constitution.
This principle has been repeated by this Court on numerous occasions during the
intervening years. In Keyishian v. Board of Regents, MR. JUSTICE BRENNAN, speaking for
the Court, said:
The vigilant protection of constitutional freedoms is nowhere more vital than in the community of
American schools." Shelton v. Tucker. The classroom is peculiarly the "marketplace of ideas." The
Nation's future depends upon leaders trained through wide exposure to that robust exchange of
ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of
authoritative selection.
The principle of these cases is not confined to the supervised and ordained discussion
which takes place in the classroom. The principal use to which the schools are dedicated is
to accommodate students during prescribed hours for the purpose of certain types of
activities. Among those activities is personal intercommunication among the students. This
is not only an inevitable part of the process of attending school; it is also an important part
of the educational process. A student's rights, therefore, do not embrace merely the
classroom hours. When he is in the cafeteria, or on the playing field, or on the campus
during the authorized hours, he may express his opinions, even on controversial subjects
like the conflict in Vietnam, if he does so without "materially and substantially interfer[ing]
with the requirements of appropriate discipline in the operation of the school" and without
colliding with the rights of others. Burnside v. Byars. But conduct by the student, in class or
out of it, which for any reason -- whether it stems from time, place, or type of behavior -materially disrupts classwork or involves substantial disorder or invasion of the rights of
others is, of course, not immunized by the constitutional guarantee of freedom of speech.
Cf. Blackwell v. Issaquena County Board of Education., 363 F.2d 740 (C.A. 5th Cir.1966).
Under our Constitution, free speech is not a right that is given only to be so circumscribed
that it exists in principle, but not in fact. Freedom of expression would not truly exist if the
right could be exercised only in an area that a benevolent government has provided as a
safe haven for crackpots. The Constitution says that Congress (and the States) may not
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abridge the right to free speech. This provision means what it says. We properly read it to
permit reasonable regulation of speech-connected activities in carefully restricted
circumstances. But we do not confine the permissible exercise of First Amendment rights to
a telephone booth or the four corners of a pamphlet, or to supervised and ordained
discussion in a school classroom.
If a regulation were adopted by school officials forbidding discussion of the Vietnam
conflict, or the expression by any student of opposition to it anywhere on school property
except as part of a prescribed classroom exercise, it would be obvious that the regulation
would violate the constitutional rights of students, at least if it could not be justified by a
showing that the students' activities would materially and substantially disrupt the work
and discipline of the school. Cf. Hammond [p514] v. South Carolina State College, 272 F.Supp.
947 (D.C.S.C.1967) (orderly protest meeting on state college campus); Dickey v. Alabama
State Board of Education, 273 F.Supp. 613 (D.C.M.D. Ala. 967) (expulsion of student editor of
college newspaper). In the circumstances of the present case, the prohibition of the silent,
passive "witness of the armbands," as one of the children called it, is no less offensive to the
Constitution's guarantees.
As we have discussed, the record does not demonstrate any facts which might reasonably
have led school authorities to forecast substantial disruption of or material interference
with school activities, and no disturbances or disorders on the school premises in fact
occurred. These petitioners merely went about their ordained rounds in school. Their
deviation consisted only in wearing on their sleeve a band of black cloth, not more than
two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and
their advocacy of a truce, to make their views known, and, by their example, to influence
others to adopt them. They neither interrupted school activities nor sought to intrude in the
school affairs or the lives of others. They caused discussion outside of the classrooms, but
no interference with work and no disorder. In the circumstances, our Constitution does not
permit officials of the State to deny their form of expression.
T.V. ex rel B.V. v. Smith-Green Community School Corporation, 807 F. Supp 2d 767 (N.D.
Ind. 2011)
. . . Here’s what the record reveals: during the summer of 2009, T.V. and M.K. were both
entering the 10th grade at Churubusco High School, a public high school of approximately
400 students. Both T.V. and M.K. were members of the high school’s volleyball team, an
extracurricular activity, and M.K. was also a member of the cheerleading squad, also an
extracurricular activity, as well as the show choir, which is a cocurricular activity.
Cocurricular activities provide for academic credit but also involve activities that take place
outside the normal school day. . . .
A couple of weeks prior to the tryouts, T.V., M.K. and a number of their friends had
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sleepovers at M.K.’s house. Prior to the first sleepover, the girls bought phallic-shaped
rainbow colored lollipops. During the first sleepover, the girls took a number of
photographs of themselves sucking on the lollipops. In one, three girls are pictured and
M.K. added the caption “Wanna suck on my cock.” In another photograph, a fully-clothed
M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a
fully-clothed T.V. is pretending to suck on it.
During another sleepover, T.V. took a picture of M.K. and another girl pretending to kiss
each other. At a final slumber party, more pictures were taken with M.K. wearing lingerie
and the other girls in pajamas. One of these pictures shows M.K. standing talking on the
phone while another girl holds one of her legs up in the air, with T.V. holding a toy trident
as if protruding from her crotch and pointing between M.K.’s legs. In another, T.V. is
shown bent over with M.K. poking the trident between her buttocks. A third picture shows
T.V. positioned behind another kneeling girl as if engaging in anal sex. In another picture,
M.K. poses with money stuck into her lingerie – stripper-style.
T.V. posted most of the pictures on her MySpace or Facebook accounts, where they were
accessible to persons she had granted “Friend” status. Some of the photos involving the
lollipops were also posted on Photo Bucket, where a password is necessary for viewing.
None of the images identify the girls as students at Churubusco High School. Neither T.V.
nor M.K. ever brought the images to school either in digital or any other format. In their
depositions, both T.V. and M.K. characterized what they did as “just joking around” and
disclaimed that the images conveyed any scientific, literary or artistic value or message, but
testified that the photos were taken and were shared on the internet because the girls
thought what they had done was funny and “wanted to share with [their] friends how
funny it was.” . . .
[Both girls subsequently were suspended from participating in extra-curricular and cocurricular activities for the behavior and postings.]
With all respect to the important and valuable function of public school authorities, and the
considerable deference to their judgment that is so often due, “[i]t would be an unseemly
and dangerous precedent to allow the state, in the guise of school authorities, to reach into
a child’s home and control his/her actions there to the same extent that it can control that
child when he/she participates in school sponsored activities.” Layshock v. Hermitage School
District, F.3d , 2011 WL 2305970, *9 (3rd Cir. June 13, 2011).
J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011) (M.D. Pa. 2011)
This case arose when the School District suspended J.S. for creating, on a weekend and on
her home computer, a MySpace profile (the “profile”) making fun of her middle school
principal, James McGonigle. The profile contained adult language and sexually explicit
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content. J.S. and her parents sued the School District under 42 U.S.C. § 1983 and state law,
alleging that the suspension violated J.S.’s First Amendment free speech rights. . .
The profile did not identify McGonigle by name, school, or location, though it did contain
his official photograph from the School District’s website. The profile was presented as a
self- portrayal of a bisexual Alabama middle school principal named “M-Hoe.” The profile
contained crude content and vulgar language, ranging from nonsense and juvenile humor
to profanity and shameful personal attacks aimed at the principal and his family. For
instance, the profile lists M-Hoe’s general interests as:
“detention, being a tight ass, riding the fraintrain, spending time with my child (who looks
like a gorilla), baseball, my golden pen, fucking in my office, hitting on students and their
parents.”
In addition, the profile stated in the “About me” section:
HELLO CHILDREN[.] yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass,
put on this world with a small dick PRINCIPAL[.] I have come to myspace so i can pervert the
minds of other principal’s [sic] to be just like me. I know, I know, you’re all thrilled[.] Another
reason I came to myspace is because - I am keeping an eye on you students (who[m] I care for so
much)[.] For those who want to be my friend, and aren’t in my school[,] I love children, sex (any
kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife
who looks like a man (who satisfies my needs ) MY FRAINTRAIN. . . .
Though disturbing, the record indicates that the profile was so outrageous that no one took
its content seriously. J.S. testified that she intended the profile to be a joke between herself
and her friends. At her deposition, she testified that she created the profile because she
thought it was “comical” insofar as it was so “outrageous.” . . .
The School District asserted that the profile disrupted school in the following ways. There
were general “rumblings” in the school regarding the profile. More specifically, on
Tuesday, March 20, McGonigle was approached by two teachers who informed him that
students were discussing the profile in class. Randy Nunemacher, a Middle School math
teacher, experienced a disruption in his class when six or seven students were talking and
discussing the profile; Nunemacher had to tell the students to stop talking three times, and
raised his voice on the third occasion. The exchange lasted about five or six minutes.
Nunemacher also testified that he heard two students talking about the profile in his class
on another day, but they stopped when he told them to get back to work. Nunemacher
admitted that the talking in class was not a unique incident and that he had to tell his
students to stop talking about various topics about once a week. Another teacher, Angela
Werner, testified that she was approached by a group of eighth grade girls at the end of her
Skills for Adolescents course to report the profile. Werner said this did not disrupt her class
because the girls spoke with her during the portion of the class when students were
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permitted to work independently.
The School District also alleged disruption to Counselor Frain’s job activities. Frain
canceled a small number of student counseling appointments to supervise student testing
on the morning that McGonigle met with J.S., K.L., and their parents. Counselor Guers was
originally scheduled to supervise the student testing, but was asked by McGonigle to sit in
on the meetings, so Frain filled in for Guers. This substitution lasted about twenty-five to
thirty minutes. There is no evidence that Frain was unable to reschedule the canceled
student appointments, and the students who were to meet with her remained in their
regular classes. . . .
The Supreme Court established a basic framework for assessing student free speech claims
in Tinker, and we will assume, without deciding, that Tinker applies to J.S.’s speech in this
case. The Court in Tinker held that “to justify prohibition of a particular expression of
opinion,” school officials must demonstrate that “the forbidden conduct would materially
and substantially interfere with the requirements of appropriate discipline in the operation
of the school.” Tinker. This burden cannot be met if school officials are driven by “a mere
desire to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint.”
Moreover, “Tinker requires a specific and significant fear of disruption, not just some
remote apprehension of disturbance.” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211
(3d Cir. 2001). Although Tinker dealt with political speech, the opinion has never been
confined to such speech. . . .
As this Court has emphasized, with then-Judge Alito writing for the majority, Tinker sets
the general rule for regulating school speech, and that rule is subject to several narrow
exceptions. Saxe (“Since Tinker, the Supreme Court has carved out a number of narrow
categories of speech that a school may restrict even without the threat of substantial
disruption.”).
The first exception is set out in Fraser, which we interpreted to permit school officials to
regulate “‘lewd,’ ‘vulgar,’ ‘indecent,’ and ‘plainly offensive’ speech in school.” (quoting
Fraser.) The second exception to Tinker is articulated in Hazelwood School District v.
Kuhlmeier, which allows school officials to “regulate school-sponsored speech (that is,
speech that a reasonable observer would view as the school’s own speech) on the basis of
any legitimate pedagogical concern.” Saxe.
The Supreme Court recently articulated a third exception to Tinker’s general rule in Morse.
Although, prior to this case, we have not had an opportunity to analyze the scope of the
Morse exception, the Supreme Court itself emphasized the narrow reach of its decision. In
Morse, a school punished a student for unfurling, at a school-sponsored event, a large
banner containing a message that could reasonably be interpreted as promoting illegal
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drug use. The Court emphasized that Morse was a school speech case, because “[t]he event
occurred during normal school hours,” was sanctioned by the school “as an approved
social event or class trip,” was supervised by teachers and administrators from the school,
and involved performances by the school band and cheerleaders. The Court then held that
“[t]he ‘special characteristics of the school environment,’ and the governmental interest in
stopping student drug abuse . . . allow schools to restrict student expression that they
reasonably regard as promoting illegal drug use.” Notably, Justice Alito’s concurrence in
Morse further emphasizes the narrowness of the Court’s holding, stressing that Morse
“stand[s] at the far reaches of what the First Amendment permits.” In fact, Justice Alito
only joined the Court’s opinion “on the understanding that the opinion does not hold that
the special characteristics of the public schools necessarily justify any other speech
restrictions” than those recognized by the Court in Tinker, Fraser, Kuhlmeier, and Morse.
Justice Alito also noted that the Morse decision “does not endorse the broad argument . . .
that the First Amendment permits public school officials to censor any student speech that
interferes with a school’s ‘educational mission.’ This argument can easily be manipulated
in dangerous ways, and I would reject it before such abuse occurs.” Moreover, Justice Alito
engaged in a detailed discussion distinguishing the role of school authorities from the role
of parents, and the school context from the “[o]utside of school” context.
There is no dispute that J.S.’s speech did not cause a substantial disruption in the school.
The School District’s counsel conceded this point at oral argument and the District Court
explicitly found that “a substantial disruption so as to fall under Tinker did not occur.”
Nonetheless, the School District now argues that it was justified in punishing J.S. under
Tinker because of “facts which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school activities . . . .” Tinker.
Although the burden is on school authorities to meet Tinker’s requirements to abridge
student First Amendment rights, the School District need not prove with absolute certainty
that substantial disruption will occur. Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008)
(holding that Tinker does not require “actual disruption to justify a restraint on student
speech”); Lowery v. Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) (“Tinker does not require
school officials to wait until the horse has left the barn before closing the door. . . . [It] does
not require certainty, only that the forecast of substantial disruption be reasonable.”);
LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require
school officials to wait until disruption actually occurs before they may act.”).
The facts in this case do not support the conclusion that a forecast of substantial disruption
was reasonable.
~These materials were prepared by Hon. Sue Leeson for Classroom Law Project’s use.~
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