Student Free Speech
Tinker v Des Moines (1969)
Several students and parents in Des Moines
organized a protest of the Vietnam war. Students were to wear black
arm bands to school in protest. When the school found out they warned
all the students and parents that anyone wearing the armbands would
be would be suspended. The Tinker children wore their armbands to
school (they were the only ones of the group to do so) and were
suspended. Mr and Mrs. Tinker filed suit claiming that the school
violated the children's right to freedom of speech and expression.
The school claimed that the armbands were disruptive.
The court ruled against the school district saying
that "students do not shed their constitutional rights at the school
house gates. In doing so the court protected what has come to be
known as "symbolic speech."
Island Trees School District v.
Pico (1982) - Censorship Case
The Board of Education of the Island Trees School
District in New York directed the removal of nine books from the
libraries of the Island Trees senior and junior high schools because
in the Board's opinion the books were "antiAmerican,
antiChristian, antiSemitic, and just plain filthy." Some
books included were: The Fixer, Soulon Ice, Slaughterhouse Five, Go
AskAlice, The Best Stories by Negro Writers, and others. Four
students from the high school and one from the junior high school
sued the school district, claiming that the removal of the books was
a violation of the First Amendment's guarantee of freedom of speech.
The Supreme Court of the United States ruled in
favor of the students, saying that the books were not required
reading. According to Justice Brennan, who cited West Virginia Board
of Education v. Bamette, 319 U.S.624 (1943), "Local school boards may
not remove books from school library shelves simply because they
dislike the ideas contained in these books and seek by their removal
to prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion." He also cited Tinker v. Des
Moines School District, 393 U.S.503 (1969), saying that high school
students have First Amendment rights in the classroom. Although the
schools have a right to determine the content of their libraries,
they may not interfere with a student's right to learn. Therefore,
the schools may not control their libraries in a manner that results
in a narrow, partisan view of certain matters of opinion. The Court
stood against the removal or suppression of ideas in schools.
Bethel School District v
Fraser (1986)
Matthew Fraser, a high school student in Bethel,
Washington, delivered a speech nominating a fellow student for a
student elective office. The speech was made during school hours as a
part of a school-sponsored educational program in self-government.
The voluntary assembly was attended by about 600 students, many of
whom were 14-year-olds. Throughout the speech, the student
deliberately referred to his candidate in terms of an elaborate and
explicit sexual metaphor. The reactions of the students varied from
enthusiastic hooting and yelling to embarrassment and bewilderment.
Before the speech, the student had discussed it with several
teachers, and two teachers told him they thought it was not
appropriate. The student was suspended for three days for having
violated the school's "disruptive conduct" rule, which prohibited
conduct that substantially interfered with the educational process,
including the use of obscene, profane language or gestures.
The U.S. Supreme Court held that the school board
acted entirely within its permissible authority in punishing Fraser
for "his offensively lewd and indecent speech." This was not a
situation where Fraser was sanctioned for expressing a political
viewpoint as in the Tinker "armband" case; the sexual innuendo was
incidental to the merits of the candidate who was being nominated.
"It is a highly appropriate function of public school education to
prohibit the use of vulgar and offensive terms in public discourse .
. . Schools must teach by example the shared values of a civilized
social order."
The Court repeated its recognition of an interest
in protecting minors from exposure to vulgar and offensive spoken
language. Even in a heated political discourse among adults, the
Court emphasized the need for consideration for the personal
sensibilities of the audience. "A high school assembly or classroom
is no place for a sexually explicit monologue directed towards an
unsuspecting audience of teenage students." The Court also stated
that the school regulation and the negative reactions of two teachers
gave Fraser sufficient notice that his speech might result in his
suspension. (Hardin)
Fujishima v. Board of Education (7th
Cir. 1972)
In 1970, Burt Fujishima and Richard Peluso were
suspended from Lane Technical High School in Chicago for four and
seven days, respectively, for distributing about 350 free copies of
an "underground" newspaper they published entitled "The Cosmic Frog".
Robert Balanoff was also suspended for two days for giving another
student an unsigned copy of a petition calling for "teach-ins"
concerning the war in Vietnam. Robert was also suspended for five
days for distributing leaflets about the war to 15 or 20 students
during a fire drill. The board of education required prior approval
of publications to be distributed at school.
At issue was whether or not a board of education
rule which prohibits any person from distributing publications on
school premises unless they have been approved by the superintendent
was constitutional? The courts decision was no, a rule requiring
prior approval of publications is an unconstitutional restraint in
violation of the First Amendment.
The U.S. Court of Appeals interpreted the Tinker
v. Des Moines decision to mean that school officials would have to be
able to predict that existing conduct, such as wearing armbands,
would probably interfere with school discipline in order to justify
punishment of students for the exercise of their First Amendment
rights. Such "predictability" is not "a basis for establishing a
system of censorship and licensing designed to prevent the exercise
of First Amendment rights." (emphasis added) School officials may
establish rules setting forth the time, manner, and place in which
the distribution of written materials may occur. Then, the board may
punish students who violate those rules. (PATCH - See Below)
Eisner v. Stamford Board of Education
(2d Cir. 1971)
Students in a Connecticut High School produced and
distributed a mimeographed newspaper entitled the Stamford Free
Press. The first three issues were distributed off school grounds,
and the students requested permission to distribute it on school
grounds. The board of education issued a regulation prohibiting the
distribution of written material on school grounds without prior
approval of the school administration. The only guidelines were that
material should not be distributed if it will interfere with school
operation or discipline, will cause violence or disorder, or will
invade others' rights. The students filed suit for a declaratory
judgment regarding their rights.
The following questions were raised:
- (1) Is it constitutional for school boards to
prevent the distribution of material on school grounds?
- (2) Was this board's regulation
constitutional?
The 2nd Circuit Court decided the follwong:
(1) Yes, prior restraints are permissible under
the Tinker decision if school officials can reasonably predict
"substantial disruption of or material interference with school."
(2) No, this particular board regulation is
unconstitutional because it did not establish specific procedural
safeguards for the review of the materials to be distributed. In
effect, this decision requires school officials to balance their
interest in maintaining discipline with students' rights. The
procedural safeguards must prescribe: (a) a definite, brief period of
time for completing a review of the material; (b) to whom and how
material may be submitted for clearance. Prompt review or "appeal"
procedures must be provided for situations in which permission is
denied. (Hardin)
Quarterman v. Byrd (5th Cir. 1971)
Charles Quarterman, a tenth-grade student at Pine
Forest High School in North Carolina, was suspended for ten days for
distributing an "underground" newspaper at the school in November,
1970. A school rule prohibited the distribution of publications by
students without the express permission of the principal. Two months
later, he distributed another newspaper with an article which
concluded this statement in large capital letters:
". . . WE HAVE TO BE PREPARED TO FIGHT IN THE
HALLS AND IN THE CLASSROOMS, OUT IN THE STREETS BECAUSE THE SCHOOLS
BELONG TO THE PEOPLE. IF WE HAVE TO - WE'LL BURN THE BUILDINGS OF OUR
SCHOOLS DOWN TO SHOW THESE PIGS THAT WE WANT AN EDUCATION THAT WON'T
BRAINWASH US INTO BEING RACIST. AND THAT WE WANT AN EDUCATION THAT
WILL TEACH US TO KNOW THE REAL TRUTH ABOUT THINGS WE NEED TO KNOW, SO
WE CAN BETTER SERVE THE PEOPLE!!!"
He was again suspended for ten days.
At issue was whether or not a school regulation
prohibiting students from distributing publications without the
express permission of the principal was an unconstitutional prior
restraint on students' First Amendment rights? The 5th Circuit ruled
that this regulation is invalid because it lacks criteria to be
followed by school officials in deciding whether to grant or to deny
permission, as well as procedural safeguards for the review of the
decision of school officials. The decsion was based upon the fact
that Quarterman was not disciplined because of the potentially
inflammatory and disruptive speech, but because he had violated the
regulation prohibiting the distribution of printed material without
permission. Therefore, his First Amendment rights to freedom of the
press and expression were violated. Because the extent of free speech
and expression is not absolute, and may be affected by the age or
maturity of the audience to whom it is addressed, a rule with
procedural safeguards and specific guidelines for determining what
may be published or distributed in schools may be constitutional.
(PATCH - See Below)
Student Discipline
Goss v. Lopez (1975)
Due Process
Several public high school students (including D.
Lopez) were suspended from school for misconduct but were not given a
hearing immediately before or after their suspension. School
authorities in Columbus, Ohio, claimed that a state law allowed them
to suspend students for up to ten days without a hearing. The
students brought a legal action, claiming that the statute was
unconstitutional because it allowed school authorities to deprive
students of their right to a hearing, violating the due process
clause of the Fourteenth Amendment. The issue was whether the
suspension of a student for a period of up to ten days without a
hearing constitutes a violation of the due process clause of the
Fourteenth Amendment.
The Supreme Court of the United States said that
education is a property interest protected by the Fourteenth
Amendment's due process clause and any suspension requires prior
notice and a hearing. Permitting suspension without a hearing is,
therefore, unconstitutional. The Court said that oral or written
notice of the charges brought against a student must be given to the
student who is being suspended for more than a trivial period. If he
denies the charges, the student must be given a hearing. The hearing
may be an informal one where the student is simply given an
explanation of the evidence against him and an opportunity to tell
his side of the story. (PATCH - See Below)
Ingraham v. Wright (1977)
Corporal Punishment
Florida law permitted corporal punishment if not
"degrading or unduly severe." On one occasion in Dade County, a
student named Ingraham was given more than 20 licks on the buttocks
from a 2' X 4' X 1/2" paddle. (Witnesses disagree about the exact
number.) The student had been accused of being slow to respond to the
teacher's orders to leave the stage of the auditorium. The injury was
so severe that the boy required medical attention for the bruises on
has body and remained out of school for eleven days. A second
student, Andrews, had been paddled several times for such offenses as
being late to class, making noise, "fooling around," and not having
his tennis shoes for gym class. Andrews was struck on the arms on two
occasions, losing the use of has arm for a week.
Issues:
(1) Is the administration of corporal punishment
in the schools "cruel and unusual punishment" as prohibited by the
Eighth Amendment to the U.S. Constitution?
(2) If corporal punishment is constitutional, are
parlor notice and an opportunity to be heard required under the due
process clause of the Fourteenth Amendment?
No. The Eighth Amendment does NOT apply to
paddling in the schools, and no, a notice and a hearing are not
required in order to satisfy the due process clause of the Fourteenth
Amendment.
This was as close a decision as there can be, with
the nine justices splitting their votes five to four.
The U.S. Supreme Court stated that the Eighth
Amendment is intended to protect the rights of people convicted of
crimes against the state, not school children with disciplinary
problems. Schools are open institutions, where children can leave at
the end of the day, and schools are supervised by the community.
Also, ordinary paddling neither violates any substantive rights nor
causes a student to suffer any grievous loss.
To require notice and a hearing for every corporal
punishment case would "significantly burden the use of corporal
punishment as a disciplinary measure", according to Justice Powell.
In extraordinary cases where the teacher or school official inflicts
too hush a punishment, the parents can sue for civil damages and the
state can charge the teacher or the school official with assault and
battery. In these extraordinary cases of excessive punishment, the
student's Fourteenth Amendment liberty interests are protected by the
other available remedies, such as civil suits against the teacher or
criminal charges. The Court noted that procedural safeguards are
desirable but not required.
One of the four dissenting justices, Justice
White, expressed concern about the severity of the beatings in this
case: "the record reveals beatings so severe that if they were
inflicted on a hardened criminal for the commission of a serious
crime, they might not pass constitutional muster." He did not suggest
that spanking in the public schools is in every instance prohibited
by the Eighth Amendment, but he did not understand why such severe
punishment, unacceptable in a civilized society, becomes more
acceptable just because it is inflicted on children in the public
schools. Justice White also considered it a denial of due process to
allow the state "to punish first and hear the student's version of
events later," which was in effect the result of the decision in this
case that due process did not require prior notice and a hearing
before the infliction of punishment, but that students could file
civil suits or criminal complaints afterwards. (PATCH - See
Below)
Student Newspapers - Censorship
Hazelwood School District v.
Kuhlmeier (1988) - Students Rights
Kathy Kuhimeier and two other journalism students
wrote articles on pregnancy and divorce for their school newspaper.
Their teacher submitted page proofs to the principal for approval.
The principal objected to the articles because he felt that the
students described in the article on pregnancy, although not named,
could be identified, and the father discussed in the article on
divorce was not allowed to respond to the derogatory article. The
principal also said that the language used was not appropriate for
younger students. When the newspaper was printed, two pages
containing the articles in question as well as four otherarticles
approved by the principal were deleted.
The Supreme Court of the United States held that
the Hazelwood School District did not violate the First Amendment
right of the students. The Court ruled that School officials need not
tolerate speech which is inconsistent with the school's basic
educational mission. The Court distinguished this case from the
Tinker decision (school officials could not punish students for
wearing armbands in protest of the Vietnam war "students do not shed
their constitutional rights at the schoolhouse gate") because the
Tinker case involved a student's personal expression. This was,
instead, a school newspaper, and as such could reasonably be
perceived to bear the "imprimatur" of the school. They justified this
because the publication of Spectrum was a part of the curriculum,
i.e., it was in the curriculum guide as a part of the Journalism
course, it was taught during school hours by a faculty member, the
students received grades and academic credit, the faculty advisor
exercised control over the publication, and the principal had to
review it. The school's policies did not reflect an intent to expand
the students' rights by converting a curricular newspaper into a
public forum. The court further added that the principal's fears were
reasonable: he was concerned that the students' identities could not
be assured, that the privacy interests of boyfriends and parents were
not adequately protected, and that parents mentioned in the divorce
article were not given an opportunity to defend themselves. (Hardin)
Search and Seizure
New Jersey v T.L.O. (1984)
Two students were found smoking in the girls
bathroom. One student confessed but the other, T.L.O. (her initials),
denied smoking. In fact, T.L.O. claimed she did not smoke at all. The
school Assistant Principal then proceeded to search T.L.O.'s purse.
In the purse he found Marijuana in small bags, rolling paper, a large
amount of cash and a list of names who owed T.L.O. money. The police
were summoned and T.L.O. was arrested. T.L.O. was convicted and
through the appeals process the case eventually went to the Supreme
Court. T.L.O. claimed that the search of her purse violated her
Constitutional rights.
The Court ruled against T.L.O. setting new
standards for school officials. The Court ruled that school officials
may search a student under "reasonable suspicion." The standard is
less than that required of police therefore giving school officials
much broader search powers under the fourth amendment.
Civil Rights
Plessey v Ferguson (1896)
Homer Plessey, a member of a citizens group
protesting the Jim Crow laws that created segregation in the south,
was arrested for violating the law that forced Blacks to ride in
separate train cars. Plessey claimed that the laws violated the
14th
amendment to the Constitution that said that all citizens were to
receive "equal protection under the law." The state argued that
Plessey and other Blacks did receive equal treatment, just
separate.
Plessey's conviction of a violation of Jim Crow
laws has upheld by the Court. The Court ruled that the
14th
amendment did say that Blacks had the right to the same facilities,
just equal facilities. By ruling this way the court created the
doctrine of "separate but equal."
Brown v Board of Ed. Topeka
Kansas (1954)
Linda Brown, a student in the segregated Topeka
Kansas school district had to walk 5 miles to school each day. Across
the train tracks from her house there was a white school she was
unable to attend. Oliver Brown enlisted the help of the NAACP to
ensure that his daughter was able to go to the best school possible.
Thurgood Marshall, then head of the NAACP, challenged the segregation
of the school claiming that the laws violated the 14th amendment to the
Constitution that said that all citizens were to receive "equal
protection under the law." The state argued that Plessey v Ferguson
had set the precedent and that the laws was clear on this
point.
The court affirmed the position of Marshall and
the Brown family and overturned the precedent set by the Plessey
decision. Justice Earl Warren claimed that "in the eyes of the law,
justice was color-blind." In ruling in favor of Brown the court
ordered the integration of America "with all deliberate speed." The
civil rights movement had begun!
Affirmative Action in College Admissions
University of California Regents v
Bakke (1976)
Alan Bakke, an engineer with high grades, applied
to several medical schools in the hopes of one day becoming a doctor.
Bakke was rejected by all of the schools he applied to but the
University of California at Davis encouraged him to apply again. The
next year Bakke again applied and was again rejected. Bakke then
found out that the University's affirmative action program reserved
17 places for minority candidates regardless of qualifications. Bakke
sued the University claiming that he was the victim of "reverse
discrimination." The university argued that the creation of quotas
was needed to ensure minority admission to college under their
affirmative action program.
In a two part ruling the court ordered Bakke to be
admitted to medical school. The court ruled that Bakke had, in fact,
been discriminated against. The court did, however, uphold the
legality of affirmative action programs. The court cited Harvard
Universities affirmative action program that created guidelines for
admission rather than strict quotas.
Freedom of Religion
West Virginia State Board of Education
v. Barnette (1943)
Standing During The Pledge
During World War II, the West Virginia Board of
Education ordered that the flag salute become a regular part of the
program of activities in the public schools. A group of children
belonging to Jehovah's Witnesses refused to obey the flag salute
order on the ground that their religious beliefs forbade them to bow
down or to serve graven images. Their parents offered substitute
pledges which did not make the flag an "image", but the state
refused. The children were expelled. Their parents were prosecuted
and threatened with prosecution for causing their children's
delinquency.
Does requiring students to salute the flag when it
is forbidden by their religion violate the free exercise clause of
the First
Amendment? Yes, compelling the flag salute and
pledge "transcends constitutional limitations on the state's power
and invades the sphere of intellect and spirit which" is reserved
from state control by the First Amendment.
The Court thus reversed a decision made three
years earlier in Minersville School District v. Gobitis, 310 U.S.
586, 60 S. Ct. 1010 (1940), in which they upheld the required flag
salute as a means to achieve national cohesion. In Barnette, Justice
Jackson wrote that the compulsory flag salute is a futile attempt at
coherence. He emphasized that the Bill of Rights denies to those in
power any legal opportunity to coerce the consent of the governed:
"If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters or
opinion or force citizens to confess by word or act their faith
therein." Three justices dissented, arguing that parents have the
option to send their children to nonpubllc schools. Justice
Frankfurter warned that minorities can disrupt civil society and
there is NOTHING in the Constitution which subordinates "the general
civil authority of the state to sectarian scruples." In dealing with
the interpretation of laws, judges must exercise self-restraint, and
the Jehovah's Witnesses should have tried to persuade West Virginia
to exclude them from the required flag salute, he argued. (PATCH -
See Below)
Engle v Vitale (1962)
School Prayer
In the late 1950's the New York State Board of
Regents wrote and adopted a prayer which was supposed to be
nondenominational. The board recommended that the prayer be said by
students in public schools on a voluntary basis every morning. In New
Hyde Park Long Island a parent sued the school claiming that the
prayer violated the first amendment of the constitution. The school
argued that the prayer was nondenominational and did not attempt to
"establish or endorse" a religion and thus that it did not violate
the establishment clause.
The court ruled against the school district and
upheld the establishment clause of the first amendment. Prayer in
schools was to be considered unconstitutional.
Abington v Schempp (1963)
School Prayer
This case involved a Pennsylvania law requiring
that at least ten Bible verses be read in public schools at the
beginning of each day. The Schempps, a family in Abington, sued the
school district for violating the first amendment of the
constitution.
Just as in Engle v Vitale, religious instruction
in school was deemed to violate the 1st amendment of the
constitution.
Epperson v. Arkansas (1968)
Teaching The Theory of Evolution
An Arkansas statute forbade teachers in public
schools from teaching the "theory or doctrine that mankind ascended
or descended from a lower order of animals." A teacher determined
that the law was in valid and lost her job for violating it. The
Supreme Court of the United States was called in to review this
statute which made it unlawful for teachers in state schools to teach
human evolution .
At issue was whether the Arkansas statute that
prohibited the teaching of evolution violated the establishment
clause of the First Amendment and the equal protection clause of the
Fourteenth Amendment of the Constitution because of its religious
purpose.
The Court held that the Arkansas statute
forbidding the teaching of evolution in public learning institutions
was contrary to the freedom of religion mandate of the First
Amendment, and was also in violation of the Fourteenth Amendment. The
Court ruled that a state may not eliminate ideas from a school's
curricula solely because the ideas come in conflict with the beliefs
of certain religious groups. In this case, the law that compelled the
evolution doctrine to be removed from the course of study was passed
to agree with the religious pointofview of certain
fundamentalists. Thus, the reason for removing the doctrine was to
aid a religious pointofview and, therefore, was violative
of the First Amendment. The Court said that the law must require
religious neutrality.
(PATCH - See Below)
Wallace v. Jaffree (1985)
Moment of Silence
The parents of three children attending public
school in Alabama challenged the constitutionality of an Alabama law
which authorized a one minute period of silence in all public schools
for meditation or voluntary prayer. At issue was whether the Alabama
law requiring a one minute silence period encouraged a religious
activity in violation of the First Amendment establishment
clause.
The Supreme Court of the United States held that
the Alabama law was a law respecting the establishment of religion
and thus violated the First Amendment. The Court said that the First
Amendment was adopted to limit the power of Congress to interfere
with a person's freedom to believe, worship, and express himself as
his conscience tells him. The Amendment gives an individual the right
to choose a religion without having to accept a religion established
by the majority or by government.
The Court said that government must be completely
neutral toward religion and not endorse any religion. Therefore,
statutes like the Alabama law requiring one minute for silence in the
schools must have a secular or nonreligious purpose to be
within the Constitution. Since Senator Holmes, who was the primary
sponsor of the bill, testified "that the bill was an effort to return
voluntary prayer to our public schools," the Court decided that the
purpose of the Alabama law was to endorse religion and was solely an
effort to return voluntary prayer to the public schools. It was,
therefore, struck down as being inconsistent with the Constitution.
(PATCH - See Below)
Lee v. Weisman (1992)
Graduation Excercises
Principals of public middle and high schools in
Providence, Rhode Island, are permitted to invite members of the
clergy to give invocations and benedictions at their schools'
graduation ceremonies. Petitioner Lee, a middle school principal,
invited a rabbi to offer such prayers at the graduation ceremony for
Deborah Weisman's class, gave the Rabbi a pamphlet containing
guidelines for the composition of public prayers at civic ceremonies,
and advised him that the prayers should be nonsectarian. Shortly
before the ceremony, the District Court denied the motion of
respondent Weisman, Deborah's father, for a temporary restraining
order to prohibit school officials from including the prayers in the
ceremony. Deborah and her family attended the ceremony, and the
prayers were recited.
Subsequently, Weisman sought a permanent
injunction barring Lee and other petitioners, various Providence
public school officials, from inviting clergy to deliver invocations
and benedictions at future graduations. It appears likely that such
prayers will be conducted at Deborah's high school graduation.
At issue is the whether or not prayers led
by clergy at public school graduation ceremonies violate the
Establishment Clause of the First Amendment? In this case the court
ruled, yes. Including clergy who offer prayers as part of an official
public school graduation ceremony is forbidden by the Establishment
Clause. The principle that government may accommodate the free
exercise of religion does not supersede the fundamental limitations
imposed by the Establishment Clause, which guarantees at a minimum
that a government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which establishes
a religion or religious faith, or tends to do so.
State officials here direct the performance of a
formal religious exercise at secondary schools' promotional and
graduation ceremonies. Lee's decision that prayers should be given
and his selection of the religious participant are choices
attributable to the State. Moreover, through the pamphlet and his
advice that the prayers be nonsectarian, he directed and controlled
the prayers' content. That the directions may have been given in a
good faith attempt to make the prayers acceptable to most persons
does not resolve the dilemma caused by the school's involvement,
since the government may not establish an official or civic religion
as a means of avoiding the establishment of a religion with more
specific creeds.
From the decision:
The Establishment Clause was inspired by the
lesson that in the hands of government what might begin as a tolerant
expression of religious views may end in a policy to indoctrinate and
coerce. Prayer exercises in elementary and secondary schools carry a
particular risk of indirect coercion. The school district's
supervision and control of a high school graduation ceremony places
subtle and indirect public and peer pressure on attending students to
stand as a group or maintain respectful silence during the invocation
and benediction. A reasonable dissenter of high school age could
believe that standing or remaining silent signified her own
participation in, or approval of, the group exercise, rather than her
respect for it.
The State may not place the student dissenter in
the dilemma of participating or protesting. Since adolescents are
often susceptible to peer pressure, especially in matters of social
convention, the State may no more use social pressure to enforce
orthodoxy than it may use direct means. The embarrassment and
intrusion of the religious exercise cannot be refuted by arguing that
the prayers are of a de minimis character, since that is an affront
to the Rabbi and those for whom the prayers have meaning, and since
any intrusion was both real and a violation of the objectors' rights.
Petitioners' argument that the option of not
attending the ceremony excuses any inducement or coercion in the
ceremony itself is rejected. In this society, high school graduation
is one of life's most significant occasions, and a student is not
free to absent herself from the exercise in any real sense of the
term voluntary. It also gives insufficient recognition to the real
conflict of conscience faced by a student who would have to choose
whether to miss graduation or conform to the state-sponsored
practice, in an environment where the risk of compulsion is
especially high. (Hardin)
Wisconsin v. Yoder (1972)
Mandatory Attendance
The Wisconsin compulsory attendance law requires
that children attend public or private schools until the age of 16.
Jonas Yoder, a member of the Old Order Amish religion, refused to
send his daughter Frieda to school following her graduation from
eighth grade. He was fined $5. There were two other parents and
children who were also fined.
A basic tenet of the Amish faith is that religion
pervades all life and that salvation requires living in a church
community apart from worldly Influence. They object to public
secondary schools because the high school tends to emphasize
intellectual and scientific accomplishments, self- distinction,
competitiveness, worldly success, and social life with other
students. Amish society emphasizes a life of "goodness" rather than
intellect, "wisdom" rather than technical knowledge, and community
welfare rather than competition. The conflict between worldly and
nonworldly values, they argued, would do psychological harm to the
Amish children.
Do compulsory school attendance laws, effective
beyond eighth grade, violate the rights of the Amish to free exercise
of their religion? The Court ruled that to force the Amish to comply
with the compulsory attendance law means that they must either leave
the state or risk the loss of their children to a secular society.
The Court reasoned that, "A way of life that is odd or even erratic
but interferes with no rights or interests of others is not to be
condemned because it is different." The Amish offer their children an
"ideal" vocational education, instilling in them the social and
political responsibilities of citizenship. There was nothing to
indicate that the health, safety, or welfare of the children have
been endangered by the actions of their parents. Justice Douglas
dissented with regard to two of the three children because they did
not testify as to their own views: "These children are 'persons'
within the meaning of the Bill of Rights.... It is the future of the
student, not the future of the parents, that is imperiled by today's
decision. The child, therefore, should be given an opportunity to be
heard before the State gives the exemption which we honor today."
(Hardin)
Lemon v. Kurtzman (1971)
Seperation of Church and State - The
Establishment Clause
The State of Pennsylvania reimbursed non-public
schools for their expenditures for teachers' salaries, textbooks, and
instructional materials. The conditions were that the courses taught
must be secular, similar to those presented in the public school
curriculum, and the instructional materials were required to be
approved by the State.
At issue was whether or not the payment of salary
supplements or reimbursements to non-public, often parochial schools
violated the clause in the First Amendment to the U.S. Constitution
which prohibited governments from making laws establishing religion.
These laws were unconstitutional. The effect of
these laws was "excessive entanglement" between government and
religion.
Writing for the majority of the Court, Chief
Justice Burger outlined a three-prong test for "es tablishment of
religion" cases, termed "The Neutrality Doctrine":
(1) Purpose: The statute must have a secular
(non--religious) purpose;
(2) Effect: The principle or primary effect of the
statute must be one that neither advances nor inhibits religion; and
(3) Entanglement: The statute must not foster an
excessive government entanglement with religion.
This case passed the first test, i.e., the purpose
of the statute was secular and not religious; its legislative intent
was to improve the quality of education. However, its cumulative
effect amounted to excessive entanglement with religion. Justice
White dissented, arguing that the fact that religion may benefit
indirectly from govern ment assistance does not breach the wall of
separation between church and state. (PATCH - See Below)
Teacher Speech and Association
Adler v. Board of Education (1952)
The Feinberg Law was enacted in New York "to
protect the children" from the Communist influence. Membership in
specified "Communist" organizations which advocate the overthrow of
the government by force, violence, or unlawful means disqualified
public teachers from employment.
Does a law that authorizes the dismissal of
teachers who are members of certain subversive organizations violate
their freedoms of speech and assembly? No, according to the U.S.
Supreme Court, the state may properly inquire into teacher's
associations to determine their fitness and loyalty. The Court
reasoned that a teacher shapes the attitudes of young minds towards
the society in which they live, and "in this, the state has a vital
concern." If a person is disqualified from employment because of his
or her membership in a subversive organization, that person is not
denied the right of free speech and assembly. The person's freedom of
choice between membership in the organization and employment in the
school system might be limited, but not his or her freedom of speech
or assembly. The member by his or her membership, supports what the
organization stands for, namely, the overthrow of the government by
unlawful means, so there is no denial of due process. The dissenting
justices frowned upon a law which "effectively penalizes school
teachers for their thoughts and their associates." (Hardin)
Keyishian v. Board of Regents (1967)
Keyishian and other faculty members of the State
University of New York refused to sign certificates which stated they
were not Communists and that if they had ever been Communists, they
had informed the school's president of that fact. Keyishian's
teaching contract was not renewed, and the others' jobs were in
danger.
Is it constitutional to bar employment to teachers
because of their membership in subversive organizations? No, mere
membership without a specific intent to further the unlawful aims of
an organization is not a constitutionally adequate basis for
excluding people from teaching positions. The Court argued that the
law presumes that a teacher is not qualified if he or she is a member
of subversive organization, and that presumption may be rebutted only
by:
(a) a denial of membership;
(b) a denial that the organization advocates the
overthrow of the government; and
(c) a denial that the teacher has knowledge of
such advocacy.
As a result, proof of inactive membership or a
lack of intent to further the organization's unlawful aims will not
rebut the presumption. dismissing a teacher who lacks the subversive
intent would violate that person's rights to free association and due
process. Four justices also dissented from this decision. They would
have given a ruling consistent with the Adler decision, in which this
law was declared constitutional. (Hardin)
Pickering v. Board of Education (1968)
High school teacher Marvin Pickering was dismissed
from his job for sending a letter to a local newspaper. In the
letter, he criticized the way in which the school board and the
superintendent of schools had handled proposals to raise money for
the schools and their allocation of school funds between educational
and athletic programs. Some of the assertions in the letter were
proven to be wrong. The Illinois Supreme Court upheld the board's
action.
Does the dismissal of a teacher for publicly
expressing his opinion about the school administration violate his
First Amendment right to freedom of speech? Yes. The U.S. Supreme
Court overturned the decision of the Illinois Supreme Court and held
that, absent proof that the teacher knowingly or recklessly made
false statements, he may not be dismissed for exercising his right to
free speech. The Court reasoned that this teacher was due the same
privilege as any taxpayer, especially since Pickering was speaking
about matters of public record (and of which he had no special
knowledge) in a public forum, the newspaper. (Hardin)
Mt. Healthy v. Doyle (1977)
An untenured teacher named Doyle informed the disc
jockey at a Cincinnati radio station about a memorandum on teacher
dress and appearance, and the disc jockey announced it as a news
item. Doyle had also been involved in several "disruptive" incidents,
including arguments with other school employees and questionable
conduct towards students. The school board decided not to renew his
contract for the next year.
Is a teacher's communication about school policy
to a radio station protected by the First Amendment? Yes, but the
teacher can show that his conduct was constitutionally protected and
that this conduct was a substantial and motivating factor in the
school board's decision not to rehire the teacher. If the teacher can
show that his conduct was constitutionally protected and that this
conduct was a substantial and motivating factor in the school board's
decision not to rehire the teacher, the board must then show by a
preponderance of the evidence that it would have reached the same
decision regarding the teacher's re-employment even in the absence of
the protected conduct. Without such a showing, the board's action in
dismissing the teacher would violate his right to free speech under
the First Amendment. (Hardin)
Anderson v. Evans (6th Cir. 1981)
Evelyn Anderson, a white tenured school teacher in
Haywood County, Tennessee, was terminated for "conduct unbecoming a
teacher" and "inefficiency". She had taught in the predominantly
black school system for several years and was assigned to teach in an
elementary school whose student body was all black. Following the
robbery and assault of her daughter by black youths, she was accused
of making remarks to the school's principal and assistant principal
to the effect that she "hated" all black people and cared nothing
about them. She forced the termination of a black aide assigned to
her. Her evaluations indicated a deterioration in her teaching
ability through the year, and she was eventually dismissed.
Does the firing of a teacher for alleged racial
remarks and poor job performance, under these circumstances, violate
her rights to expression and due process? No. Disposing of the due
process argument with a finding that the charges against Mrs.
Anderson were clear and that she was given a hearing, the court
upheld the school's action, even though it effectively limited her
speech. Acknowledging the Pickering and Mt. Healthy decisions, the
U.S. Court of Appeals discerned a two-step analysis when a public
employee alleges retaliation for the exercise of her freedom of
speech: if the employer's action effectively limits the employee's
speech, then "a balance must be struck between the interest of the
employee as an individual and the public interest served by the
employer". (Unlike Pickering, this case is one where the employee's
actions and remarks cast serious doubt about her judgment and
competence as a teacher. "The circumstances of this case gave the
school board an interest in limiting Mrs. Anderson's freedom of
expression which it could not have claimed with respect to the
general public." In a strong dissent, one judge argued that the
balancing test had not been applied properly in the trial court.
(Hardin)
Special Thanks to:
Julia P. Hardin, ideasandimages@fleurdelis.com
Project PATCH, Northport HS - http://northport.k12.ny.us/~patch/
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