CHAPTER SEVEN: INDIVIDUAL RIGHTS AND LIBERTIES
FREEDOM OF SPEECH
Sample Lesson Plan
1. Write on the board:
"Every person may freely speak, write or publish on all subjects, being
responsible for the abuse of that right."55
"Congress shall make no law...abridging the freedom of speech...."56
2. Ask students which one comes from the U. S. Constitution and which one is
from the Washington State Constitution. Ask them how they can tell.
Answer: The first listed is Article 1, Section 5 of the Washington Constitution and
the second the First Amendment to the U.S. Constitution, part of the Bill of
Rights. The second one refers to Congress, and helps to identify it as the U.S.
Constitution. In order for the First Amendment's freedom of speech to apply to
states, the U.S. Supreme Court had to incorporate this right through the 14th
amendment.
The State Constitutional right was modeled on the free speech right of
California's State Constitution of 1879, and later Arizona modeled its state
constitution right of free speech on Washington's.
Several decisions of the Washington Supreme Court have made it clear that
Washington's free speech right gives individuals more protection than the federal
free speech right. For instance, the federal law permits "prior restraint" in limited
instances, while the state right absolutely bans prior restraint of constitutionally
protected speech. Prior restraint means the ability of the government to stop
communication before it occurs, in other words, censorship.
The State free speech right is a "preferred right" which means that when it
conflicts with another right, it will be more important.
Today, the federal and state free speech rights apply when there is "state action,"
and not when there is only private action. This is why students attending private
schools do not have any free speech rights protected by the U.S. Constitution.
However, students in public schools do have these rights.
3. Ask students for examples of freedom of speech issues that arise in school.
Students may suggest expressing an opinion in school; writing an article for
the school newspaper; wearing some symbol in schools, such as gang
clothing, arm band, political button; demonstrating against a school policy;
teachers' expressing a viewpoint about school administration or others;
55
. Article 1, Section 5 of the Washington State Constitution.
U.S. Constitution, First amendment.
56
school board censorship of certain books the wearing of school uniforms.
4. Explain that:
Whenever a public school puts a restriction on a student by a rule or by a
practice that affects the students' speech, a first amendment right and a
Washington constitutional right are involved. Whether or not the particular
restriction will be lawful depends upon how a court resolves the issue.
So, for example, a student wishes to put an anti-abortion (or political) bumper
sticker on the outside of the student's school locker, but the school has a policy
that nothing may be put on the outside of school lockers. The school by its
regulation is restricting the free speech of students. Does the school have the
right to make this restriction?
To resolve this dispute, a court will apply some legal standard or rule. What this
lesson will do is examine the rules that a court would use to decide these
freedom of speech cases concerning students in public school and citizens in
outside society.
5. Ask students what is meant by speech.
Answer: The communication of thoughts and ideas, including the right to
receive information. Explain that speech does not have to be verbal, but
includes conduct that communicates ideas, such as flag burning.
6. Ask students the various ways that speech is communicated.
Writing, talking, electronic transmission (including computer, video, radio, and
television) symbolic acts, art, and music (records, tapes, compact discs, live
performances).
7. Explain to students that because of certain dangers presented by free
speech, not all speech is allowed. Ask students if they can think of examples
where speech should not be protected by the Constitution.
Students may suggest saying such personally insulting words to another
person that the person fights back, saying words that hurt another person
in his or her reputation, being obscene, advertising false information,
urging others to break the law now, demonstrating in a way that traffic is
blocked for a long time. These forms of speech may constitutionally be
limited.
Students may also suggest suppressing unpopular ideas or other constitutionally
protected forms of speech. The following outline of the law will demonstrate how
speech is presently protected by the Constitution as interpreted by the Courts.
The U. S. Supreme Court has given courts a series of tests, to use when they are
asked to decide whether a particular expression of speech should be protected
or not.
8. Lecture and write on the board.
The Supreme Court has ruled that the First Amendment allows the federal and
state government to limit and regulate speech by:
a. Putting reasonable time, place, and manner restrictions on speech. For
example, by restricting large demonstrations near where people live to certain
times of the day. This type of limit cannot be related to the content of the
speech.
For time, place and manner restrictions to be lawful under the state constitution,
they must be
(1)
content neutral (that means that the restriction applies regardless of
what is being spoken about);
(2)
narrowly tailored to serve a compelling State interest; and
(3)
leave open ample alternative channels of communication.
It is a lawful time, place and manner restriction under the federal constitution, for
a city to require any band playing in a city park to use the city's sound mixer as a
means of controlling excessive noise. A band had challenged the regulation as
an unnecessary restriction on their artistic freedom, but the U.S. Supreme Court
ruled that the regulation was a reasonable time, place and manner regulation.
b. Providing extremely little protection to certain types of speech:
a. Obscenity. The Supreme Court has had a difficult time writing a
workable rule to define obscenity. Material is obscene if taken as a whole
by an average person applying contemporary community standards it
appeals to a prurient (lewd) interest in sex; portrays sexual conduct in a
patently offensive way; and lacks serious literary, artistic, political or
scientific value. Access by minors to sexually oriented materials can be
regulated more than it can be for adults.
b. Fighting words. These are expressions that have little social value,
are directed as a personal insult, and are likely to cause an immediate
violent reaction.
c. Defamation. This is false written or spoken words that damage a
person's reputation.
d. Advocacy of illegal action. This speech urges people to act
immediately to break the law and must be likely to produce such illegal
behavior.
c. Providing commercial speech with more protection that the types of
speech described above that get practically no protection, and less
protection than other forms of speech. All forms of advertising are
commercial speech and the states may regulate and sometimes ban it.
This is why false advertising can be regulated.
d. Restricting speech because it occurs in certain public places, like
outside jails, military bases and utility sub-stations, that have not traditionally
been open to the public.
e.
Public Schools get special treatment. Speech by high school students
can be prohibited altogether if it materially and substantially interferes with school
activities or with the rights of other students or teachers, or if the school
administration can demonstrate reasonable cause to believe that the expression
would cause material and substantial interference.
9. Distribute the Handout and ask students to decide whether the speech
described is protected or unprotected.
Protected or Unprotected Speech?
a. At 6 a.m. before people go to work, Van Thu drives a truck with a loudspeaker in
an area where people live, telling how poorly refugees are treated in this country.
Protected ________
Unprotected ________
Reasons:
b. A sixteen-year old daughter mouths off to her mother.
Protected ________
Unprotected ________
Reasons:
c. Joe publishes a magazine called "Young Love." The magazine contains very
clear photos of children aged 8-12 performing various sex acts.
Protected ________
Unprotected ________
Reasons:
d. Tom, Joan's supervisor, fires her for being continually late for work.. To get even,
Joan tells her co-workers that he fired her because she would not date him.
Protected ________
Unprotected ________
Reasons:
e. The Neo Nazi Youth Group planned a parade through the streets of Skokie,
Illinois so they could advocate the extermination of Jewish people. Most of the
people of Skokie are Jewish men and women who were imprisoned in concentration
camps in Germany during World War II by the Nazi government.
Protected ________
Unprotected ________
Reasons:
f. Fat Be Gone Company advertises that its nutrition system will result in a weight
loss of 5 pounds per week and that none of this weight will be gained back. In
reality, persons on this weight loss program lose from 1 to 2 pounds per week and
most regain that weight.
Protected ________
Unprotected ________
Reasons:
g. Public high school students write an underground newspaper on their own time,
with their own resources and distribute the paper at a class picnic. The newspaper
has the results of an opinion poll about each teacher. Some of the articles are very
critical of the teachers.
Protected ________
Unprotected ________
Reasons:
h. Migrant workers want to demonstrate in support of new laws that require safer
farm machinery.
Protected ________
Reasons:
Unprotected ________
i. A company sends out postcards telling people they have won a new television.
To collect their television, they must send the company $50 for postage. When they
send in their money, they do not receive a prize.
Protected ________
Unprotected ________
Reasons:
j. Mary Beth and John Tinker each wear an armband to high school showing their
disagreement with the American War in Vietnam.
Protected ________
Unprotected ________
Reasons:
k. Jack is a practical joker. He shouts "Fire!" during a school assembly, causing
panic among the students as they try to leave the auditorium.
Protected ________
Unprotected ________
Reasons:
l. Rafael and Carlos want to wear "gang" clothing, such as gang-related hats or
coats to school.
Protected ________
Unprotected ________
Reasons:
Answers to Handout:
a.
At 6 a.m. before people go to work, Van Thu drives a truck with a
loudspeaker in an area where people live, telling how poorly refugees are
treated in this country.
Protected -- the speech itself is protected but the government may regulate the time,
place and manner of speech. Van Thu has the right to tell his opinion on refugees.
His speech may be limited to downtown areas or to residential areas at a later time.
The loudness of his speaker system may also be regulated.
b.
A sixteen year old daughter mouths off to her mother.
Unprotected, since this is private action and does not involve the federal or state
government.
c.
Joe publishes a magazine called "Young Love." The magazine contains
very clear photos of children aged 8-12 performing various sex acts.
Unprotected, since this is obscene.
d.
Tom, Joan's supervisor, fires her for being continually late for work. To
get even, Joan tells her co-workers that he fired her because she would not
date him.
Unprotected, because this is defamation. Students may ask whether or not this is
private activity not regulated by the First Amendment. The government is involved
because Tom would have the right to use the courts (part of the government) to sue
Joan for her false statements. Enforcement of defamation through the courts makes
it a government activity.
e.
The Neo Nazi Youth Group planned a parade through the streets of
Skokie, Illinois so they could advocate the extermination of Jewish people.
Most of the people of Skokie are Jewish men and women who were
imprisoned in concentration camps in Germany during World War II by the
Nazi government.
Protected. The government may limit the time, place, and manner of the speech. If
the Nazi group advocated the immediate harm to Jews and people were responding
in a way to harm them, then this would be unprotected speech -- incitement to
unlawful activity.
f.
Fat Be Gone Company advertises that its nutrition system will result in a
weight loss of 5 pounds per week and that none of this weight will be gained
back. In reality, persons on this weight loss program lose from 1 to 2 pounds
per week and most regain that weight.
Unprotected. States may ban false advertising as part of commercial speech.
g.
Public high school students write an underground newspaper on their
own time, with their own resources and distribute the paper at a class picnic.
The newspaper has the results of an opinion poll about each teacher. Some of
the articles are very critical of the teachers.
Protected. Newspapers produced away from school with students' resources and on
student time are given protection of the First Amendment. (However, if any of the
articles contain false information that damage the teacher's reputation, the speech is
unprotected defamation.) Student newspapers that are sponsored by the school
and written with school resources and support may generally be controlled by the
school administration.
h.
Migrant workers want to demonstrate in support of new laws that
require safer farm machinery.
Migrant workers have the right to free speech. They may make a demonstration so
long as it does not block streets or roads and is peaceable.
i.
A company sends out postcards telling people they have won a new
television. To collect their television, they must send the company $50 for
postage. When they send in their money, they do not receive a prize.
This type of speech is known as "commercial speech." The government may legally
regulate this and the company can be penalized for false advertising.
j.
Mary Beth and John Tinker each wear an armband to high school
showing their disagreement with the American War in Vietnam.
Mary Beth and John have the right to state their opinion, even if it is unsettling to
others. Wearing an armband is symbolic speech. This will be permitted unless this
causes a substantial disruption of the educational process. For example, the
students could be banned from wearing the armbands if fights broke out in the hall,
or class after class could not go forward because of students' disagreement over the
armbands' message.
k. Jack is a practical joker. He shouts "Fire!" during a school assembly,
causing panic among the students as they try to leave the auditorium.
Jack's speech is unprotected. This speech is the classic example given for speech
that can be regulated, since it has the potential for causing harm to others, as people
panic trying to leave the auditorium. The school can punish Jack for this speech.
l. Rafael and Carlos want to wear "gang" clothing, such as gang-related hats
or coats to school.
Students should be aware that certain clothing can be speech, if it is conveying a
message. Gang clothing and symbols may be conveying a message. This is a
controversial subject that courts have not ruled on. In California the state legislature
passed a law allowing schools to ban gang clothing. The ACLU argues that this is
censorship and violates the first amendment. School administrations argue that
regulation of gang clothing is necessary to maintain a safe atmosphere within the
school.
Sample Lesson--Hate Speech
Objectives
1. Students will examine a recent decision of the U.S. Supreme Court regarding hate
speech.
2. Students will analyze a court opinion to identify arguments, and prioritize those
arguments.
3. Students will articulate arguments from an appellate opinion.
4. Students will discuss implications of a Supreme Court opinion.
Time Required
1 class period.
Procedures
1. Ask a student to read aloud the facts of the case study, Wisconsin v. Mitchell, 113 S.
Ct. 2194 (1993). Review the facts with the class, listing important facts on the board as
students point them out. Explain that the case is on appeal. A higher court will review
the decision of the lower court.
2. Ask students: What is the issue the higher court must decide? [Whether Todd
Mitchell's first amendment rights were violated by the law that doubled his sentence
because of the racial motivation for his crime. Or, is the law constitutional?]
3. Then ask students to read the two opinions and decide which they agree with. After
students have read them, take a hand count of how many agree with Opinion One, how
many agree with Opinion Two. Then put students into groups of four to five students,
with half assigned to Opinion One and half assigned to Opinion Two. (You may either
assign students to work with the opinion they agree with, or the opposite.)
4. Tell students to work for 10 to 15 minutes to list the arguments in their opinion. Tell
them they may also add other arguments they think of to support their side. Then have
students prioritize the arguments from most persuasive to least persuasive. Tell each
group to appoint a reporter and a recorder.
5. Then allow students to debate whether the law is constitutional or not. Take one
argument from a group that supports Opinion One, then take an argument from a group
that supports Opinion Two. Continue taking all the arguments until they are completely
finished. Make sure that the first groups do not give all the arguments, and that every
group gets to participate. Record arguments on the board, with a summary word for
each argument.
6. After discussing the case, inform students that Opinion One is the opinion of the
Wisconsin Supreme Court, which was reversed by the U.S. Supreme Court. Opinion
Two is the opinion of the U.S. Supreme Court (with some additions from the dissent at
the lower court). Therefore the law was held to be constitutional, and Mitchell must
serve the longer sentence.
7. Ask students whether they think this decision will have an effect on hate speech.
Why or why not?
Wisconsin v. Mitchell--An Unmarked Opinion Case Study
Facts of the Case
It is 1989. A group of black teenagers in Kenosha, Wisconsin are discussing a scene
from the movie "Mississippi Burning" in which a Ku Klux Klansman beat a young black
boy who was praying. Todd Mitchell, 19 years old, one of the older members of the
group, asked his friends: "Do you all feel hyped up to move on some white people? ..
There goes a white boy; go get him."
As Mitchell stood and watched, ten of his friends ran across the street, knocked down,
beat up and robbed Gregory Riddick, a 14-year old white boy. Gregory was severely
injured and was in a coma for four days.
Mitchell was tried and found guilty of aggravated battery. (Battery means to hit another
person with intent to harm them.) The jury found that Mitchell intentionally selected his
victim because of his race. The maximum sentence for aggravated battery was two
years. A Wisconsin "hate crime" law allowed judges to increase the penalty for crimes
motivated by race, religion, color, sexual orientation or national origin. Because the jury
found the crime was motivated by race, the judge then sentenced Mitchell to four years,
twice the usual maximum sentence.
Mitchell has appealed his sentence, and claims that the hate crime law is
unconstitutional, because it violates his right of free speech.
Opinion One
The first amendment states "Congress shall make no law . . . abridging the freedom of
speech." The first amendment protects not only speech but thought as well. At the
heart of the first amendment is the notion that an individual should be free to believe as
he will, and that in a free society one's beliefs should be shaped by his mind and his
conscience rather than coerced by the state. Even more fundamentally, the constitution
protects all speech and thought, regardless of how offensive it may be.
If there is a bedrock principle underlying the first amendment, it is that the government
may not prohibit the expression of an idea simply because society finds the idea itself
offensive or disagreeable. The constitution calls for free thought -- that does not mean
free thought only for those who agree with us, but also freedom for the thought we hate.
Without doubt the hate crimes statute punished bigoted thought. We rule that the "hate
crimes" law is unconstitutional because it restricts free speech and violates the first
amendment. We also note that the first amendment does not protect Mr. Mitchell from
prosecution for his actions, only the additional punishment for the "thought" associated
with his actions. Mr. Mitchell should be required to serve only the two year maximum
sentence for aggravated battery.
Opinion Two
In enacting the "hate crimes" law, the state of Wisconsin sought to remedy the great
harm to individuals and society caused by hate crimes. The Legislature thought that
hate crimes are more likely to provoke violence, community unrest and emotional harm
to victims than other crimes.
The law allows judges to increase punishment for a crime when racial bias inspires the
crime. The law is directed at conduct unprotected by the first amendment, not speech.
To be sure, conduct can be speech when the person engaging in the conduct intends to
express an idea. This does not mean, however, that a physical assault is expressive
conduct protected by the first amendment. The first amendment does not protect
violence.
The Wisconsin law is constitutional. It does not punish bigoted thought. It does punish
acting on those thoughts. The first amendment protects the right to be a racist, to have
bigoted thoughts and to express them, but it does not allow a person to act on them.
Todd Mitchell's first amendment rights were not violated. He must serve the four year
sentence.
Sample Lesson Plan: Freedom of Speech and Dress Codes in Public Schools
Class Periods: 2
Objectives:
1. Students will analyze Supreme Court cases interpreting the First Amendment.
2. Students will synthesize the cases and formulate an applicable rule of law.
3. Students will apply the rule of law to the facts presented.
Activities:
1. Students will study the facts of the Jeglin case.
2. Students will extract and prioritize the arguments in the District Court decision and
from the handout that summarizes Supreme Court cases interpreting the First
Amendment.
3. Students will synthesize the cases and formulate an applicable rule of law.
4. Students will apply the rule of law to the facts presented and develop and write
arguments in support of their position.
5. Students will conduct a moot court simulation, using arguments and questions they
have formulated.
Materials:
Handouts 1-7
Procedures:
1. Pass out Handout 1, the facts of Jeglin1. Either have a student read the facts out
loud, or students may read the handout themselves. Check for understanding of the
facts by listing the most important facts on the board.
2. Ask students what the Court is being asked to decide.
Primary issue: Is a prohibition on clothing depicting professional sports teams or
colleges an infringement on high school students' First Amendment rights?
3. Tell students they will now prepare for and conduct a moot court argument on this
case to the U.S. Supreme Court. Pass out Handouts 2 & 3, the District Court's opinion
in the case and a summary of Supreme Court cases interpreting the First Amendment2,
respectively. Tell the students to pretend that the high school students who were
subject to the dress code limitations appealed to the Court of Appeals and lost at that
level. The students are now appealing to the U.S. Supreme Court.
1
2
Jeglin v. San Jacinto Unified School District, 827 F. Supp 1459 (D. Cal. 1993).
Note, Coed Naked Constitutional Law: The Benefits and Harms of Uniform Dress
Requirements in American Public Schools, 78 B.U.L. Rev. 153 (1998).
Give students time to review both handouts. Ask them to think about whether they
agree with the decision and to prioritize the arguments listed by the District Court, from
strongest to weakest. Ask them to think about the existing case law regarding the First
Amendment and the rights of high school students (Handout 3). After students have
reviewed the handouts and prioritized the arguments individually, ask them: what are
the issues in this case, what rules of law did the Supreme Court advance in its prior
decisions, how has the Supreme Court interpreted the First Amendment in prior
freedom of speech/expression situations?
4. Assign 4-6 students to be attorneys for the Jeglins (the Petitioners), and 4-6 students
to be attorneys for the School District (the Respondents). Divide the rest of the class
into groups of 4-6 students to be the Supreme Court Justices. (Alternatively, the class
can be divided into groups of "P's", "R's" and "J's" -- Petitioners, Respondents, and
Justices -- so that everyone can argue or be a justice in a group of 3.)
5. Give the attorneys the instructions in Handout 4 about appellate arguments. Explain
that attorneys for the Jeglins will be arguing in favor of allowing high school students to
wear clothing depicting sports teams or colleges and use some of the arguments from
the First Amendment Cases handout, and any others they can come up with. Attorneys
for the school district will be arguing against allowing the students to wear sports
teams/college clothing, and will use some of the arguments advanced by the trial court,
plus any additional ones they can think of. Give the Justices copies of Handout 5. Give
attorneys for both sides copies of Handout 7, Additional Arguments Concerning School
Dress Codes.3
6. Allow the groups to meet for the rest of the class period to prepare their arguments
and questions for the next class. Attorneys should brainstorm as a group their best
arguments and put them in order, from strongest to weakest. The Justices should
prepare questions as a group to ask the attorneys during oral arguments.
7. At the end of class, tell attorney groups to select one person to make their argument
to the Court (unless you have divided the class into "P's, R's and J's"). The teacher can
either ask for volunteers or select 9 students to be Justices. Select one student to be
timekeeper, and the Justices should select a Chief Justice to moderate.
8. The next day, tell those class members that do not have a role that they will be
Observers. Give them a copy of Handout 6, which should be completed during the
arguments.
9. Arrange the class so that the Justices are sitting in front of the room, with attorneys
facing them. Allow five minutes for the Petitioner/Jeglin attorney, five minutes for the
3
Note, Coed Naked Constitutional Law: The Benefits and Harms of Uniform Dress
Requirements in American Public Schools, 78 B.U.L. Rev. 153 (1998).
Respondent/School District, and up to two minutes rebuttal time for the Petitioner.
10. Then give the Justices five minutes to confer, in the presence of the rest of the
class. The Chief Justice should then announce their decision, with supporting reasons.
11. After the arguments, debrief by asking the following questions, (from the Observers'
form):
a. What were the strongest arguments presented by the Jeglins? Can you think
of any good arguments they forgot? How could even the best argument be made
stronger?
b. What were the strongest arguments presented by the School District? Can
you think of any good arguments they forgot?
c. What questions from Justices were helpful in understanding each side's
argument? Were there other questions you would have asked?
d. Do you agree with the Justice's decision. Why or why not?
12. Tell the students that the U.S. Supreme Court has not yet ruled on the issue of
"gang clothing" in public high schools. This specific issue would be a case of first
impression for the Court.
13. Ask the students how they feel about school districts imposing dress codes on high
school students or prohibiting students from wearing college and professional sports
team clothing.
FACTS OF THE CASE (Handout 1)
San Jacinto is a community of approximately 20,000 people located in southern
California. On February 23, 1993, the San Jacinto Unified School District amended its
Administrative Regulations to include a student dress code. The dress code denies
students in all grade levels the right to wear clothing with writing, pictures or any other
insignia that identifies a professional sports team or college while on school district
campuses or at school functions. The school district thought that wearing sportsoriented clothing amounted to a showing of gang colors. The school board enacted the
dress code to curtail disruption or interference with school activities caused by gang
presence. The dress code provisions took effect immediately after the regulations were
adopted by the school board.
On March 3, 1993, Alan and Marvin Jeglin were sent to the principal's office at Monte
Vista Middle School for violating the school district's dress code. On March 5, 1993,
Ariel Jeglin and Elisa Jeglin were sent to the principal's office at De Anza Elementary
School for also violating the dress code. Darcee Le Borgne, a San Jacinto High School
student was also disciplined by her high school principal for violating the dress code.
These incidents arose because these students wore clothing depicting professional
sports teams or colleges to school. The students were told that any further violation of
the dress code would lead to their removal from their regularly scheduled classes and
placement in alternative education for the day, and that any subsequent violation would
lead to their suspension from school.
The students and their parents filed a complaint against the school district asking the
District Court (trial court) to force the school district to get rid of the dress code
provisions and to stop the school district from enforcing the dress code. The students
and their parents claimed that the dress code restricted, prevented, and deprived the
students of their right to free speech guaranteed by the First Amendment of the United
States Constitution.
DISTRICT COURT OPINION (Handout 2)
The federal court trial judge made a distinction based on the age of the students
involved. The judge ruled that the school district did not violate high school students'
free speech rights by prohibiting them from wearing college or professional sports team
clothing; however, the school district did violate free speech rights by imposing the
dress code on elementary and middle school students.
During the trial, the judge listened to testimony presented by students and school district
administrators. After hearing all the testimony the judge made his decision. The
decision was based on the following:
1. The wearing of clothing that displays a student's support of a college or university or
a professional sports team is "speech" for purposes of the First Amendment.
2. The school district offered no proof at all of any gang presence at the District's
elementary schools or of any actual or threatened disruption or material interference
with elementary school activities. Accordingly, there is no justification to apply the
restrictive dress code to the elementary school population. Too apply the dress code
would be an abridgment of free speech rights as to this population of students.
3. Although the school district offered some evidence of gang presence in the middle
school population, the evidence shows only a negligible presence and no actual or
threatened disruption of school activities. The school district has not carried its burden
of showing justification to apply the restrictive dress code. Such application of the
dress code would be an abridgment of free speech rights as to this population of
students.
4. While evidence concerning "gang presence" at one of the school district's high
schools is conflicting, the school district proved that there was a gang presence of an
undefined size and composition. Thus, this finding justified restricting students to the
extent found in the District's dress code.
5. The District could not enforce the dress code as to middle and elementary school
students. The District could enforce the dress code as to high school students.
SUPREME COURT CASES INTERPRETING THE FIRST AMENDMENT (Handout 3)
Right to Free Speech:
U.S. v. O'Brien, 391 U.S. 367 (1968). In the O'Brien case, the Supreme Court
established a 4-part test to determine whether a governmental regulation that
incidentally affects free speech is constitutionally permissible: 1) the regulation must be
within the government's constitutional powers; 2) the regulation must further "an
important or substantial government interest"; 3) the government interest must be
"content-neutral", meaning that it must have a purpose other than the restriction of free
speech; and 4) the restriction must be narrowly tailored to inhibit free expression only to
the extent necessary to further its legitimate goals.
Expressive Conduct:
Spence v. Washington, 418 U.S. 405 (1974). In the Spence case, the Court defined
expressive conduct. To constitute expression, the conduct must be such that the actor
"intend[s] to convey a particularized message and there must be a high probability that
the message would be understood by those who viewed it."
Students' First Amendment Rights:
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
Tinker is a landmark case in establishing the bounds of students' First Amendment
rights. In Tinker, two students were suspended for wearing black armbands to school in
protest of the Vietnam War. The Tinker Court determined that the students' conduct
was protected under the First Amendment. The Court also held that it would only allow
a regulation limiting student speech if the speech invaded the rights of other students or
"materially and substantially interfered with the requirements of appropriate discipline in
the operation of the school."
Bethel School District v. Fraser, 478 U.S. 675 (1986). In the Fraser case, the Court
declined to extend First Amendment protection to students who use vulgar and lewd
speech. The Fraser Court upheld a student's suspension for reciting a sexually
suggestive nomination speech at a school assembly. The Court explained that schools
not only impart educational values, but also societal values as well. Therefore, there is
a legitimate interest in banning "vulgar and offensive" speech that would get in the way
of that process.
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). In the Hazelwood case, the Court
further limited Tinker and broadened school officials' authority to regulate student
speech. In Hazelwood, a high school principal deleted two pages from an edition of a
journalism class's newspaper because the principal believed that an article describing
the experiences of pregnant teens was inappropriate for younger students and also
posed too great a risk of exposing the teens' identities. In upholding the principal's
decision, the Court distinguished Tinker, explaining that the journalism publication could
be characterized as "part of the school curriculum," whereas the conduct at issue in
Tinker "addressed educators' ability to silence a student's personal expression that
happens to occur on school premises." Thus, a school may "refuse to sponsor"
expression that it deems inappropriate and contrary to the basic values it seeks to
impart. Furthermore, educators, not the courts, were best equipped to make such
decisions.
Santa Fe Independent School Dist. v. Doe, -- U.S. --, 120 S.Ct. 2266 (2000). The
Supreme Court held that student-led invocations prior to football games were not
protected as private speech. In this case, the Court ruled that the school was integral to
the prayer. The Court was persuaded because the message was delivered on school
property, at school-sponsored events, and pursuant to a school policy that explicitly and
implicitly encouraged public prayer. Because the school was intimately involved in the
process, the Court found this policy of permitting such invocations was “impermissibly
coercive.”
INSTRUCTIONS FOR ATTORNEYS (Handout 4)
Appellate Arguments:
In your small groups, identify what legal arguments to present to the Supreme Court.
Arguments should be no more than seven minutes. If time allows, up to two minutes of
rebuttal argument by the Petitioner may be allowed. The order of argument is Petitioner
(Jeglins) first, Respondent (School District) second. Rebuttal only from Petitioner.
Write a clear, brief statement of your position in this case.
Each group should consider what facts and legal rule it might use to provide support, or
prove, its arguments. Consider how those facts and rule support your position.
Some tips on making a legal argument:
1. Begin your argument by stating what your position is and quickly summarizing
the basis for that position. Remember that this issue has not yet been decided by the
Supreme Court, so you will have to draw from prior Supreme Court case to predict how
the Court may interpret the issue presented.
2. Legal conclusions are generally dependent on facts to support them, so don't
ignore facts in making your arguments.
3. Don't worry about "legalese" in your argument. Lawyers increasingly
recommend using plain English. Figure out what your group wants to "win" in the case,
what facts you feel support your goal, and argue accordingly.
4. Remember the time limitations. If you have many points you want to make,
you may want to prioritize and emphasize in detail only the most important points. Tell
the court your other points (perhaps listing them very quickly) have been covered in
your written brief.
INSTRUCTIONS FOR SUPREME COURT JUSTICES (Handout 5)
When preparing to hear oral arguments from attorneys, Justices review the briefs
(written arguments) submitted by the parties, and prepare questions for the attorneys.
Since you do not have the briefs, review the facts, the lower court decision, and the
Supreme Court cases handout. You should pay attention to the trends in the law to
understand the Supreme Court's position on the subject. This issue has not been
decided by the Court yet. Think about what facts you don't understand, what interests
each party would like to advance, and what questions you want answered before you
decide this very important case.
As a group, think of at least 5 questions to ask the attorneys during their arguments.
Everyone should make a list of the questions, which will be turned in at the end of class.
During the arguments, feel free to interrupt the attorneys to ask questions. That's what
the Supreme Court Justices do. Any interruptions should be civil. After the attorneys
have argued, you will have 5 minutes to confer about your decision. The Chief Justice
will moderate, making sure that each Justice has an opportunity to speak. One way to
assure this is to take a poll, allowing each person to speak in turn. You can then vote.
The Chief Justice should announce the decision of the Court.
QUESTIONS FOR OBSERVERS (Handout 6)
a. What were the strongest arguments presented by the Jeglins? Were the
arguments legally based or policy based? Can you think of any good arguments
they did not make?
b. What were the strongest arguments presented by the School District? Were
the arguments legally based or policy based? Can you think of any good
arguments they did not make?
c. What questions from Justices were helpful in understanding each side's
argument? Were there other questions you would have asked?
d. Do you agree with the Justice's decision. Why or why not?
ADDITIONAL ARGUMENTS CONCERNING SCHOOL DRESS CODES
(Handout 7)
ARGUMENTS FOR SCHOOL UNIFORMS :
1. The crime rate in public schools is startling. A 1995 study showed that over 3
million crimes occur annually in the nation's 85,000 public schools. A substantial
number of these crimes are violent and gang-related. To protect both students
and teachers, school officials must actively take measures to prevent school
violence.
2. Dress codes and school uniforms increase student discipline and respect for
teachers.
3. School uniforms create a sense of "group spirit". A uniform signifies
membership and encourages group, rather than personal achievement. School
uniforms may decrease disciplinary problems by encouraging students' goals to
parallel those of their school. A resurgence of school pride from uniforms can
establish a sense of connection and community among students, helping to
reduce student conflicts and increase student learning.
4. School uniforms are a way of discouraging student preoccupation with brand
names and fashion. Many students face peer pressure to dress "right", but the
"right" clothes are often expensive. Requiring all students to dress alike helps
reduce obvious distinctions between "the 'have' and the 'have nots.'" Uniforms
are a great equalizer, requiring the richest and the poorest to dress alike.
5. School uniforms policies can also save parents money. Fashionable clothes
are expensive, but by designing and implementing a low-cost uniform policy,
school officials can help to ease parents' financial burdens. Many school districts
with uniform policies have also instituted programs to help low-income families
acquire uniforms, such as obtaining financial support from local business
communities and circulating graduates' used uniform.
ARGUMENTS AGAINST SCHOOL UNIFORMS:
1. Most school districts only implement uniforms at the elementary and middle
school levels. School administrators acknowledge that as students get older they
care more about how they dress and how others perceive their appearance.
2. Clothing can be viewed as expressive conduct. In grade school, most
children just want to dress like their peers. Thus, in the lower grades, a uniform
may aid a student's own wish to fit in. In high school, however, clothes take on
more significance. It is in high school that many students begin to question their
identity, and clothing gives them the opportunity to try out different personas.
Adolescents' clothing choices reflect their increasing desire to make independent
decisions, and therefore may actually help them to mature.