Wednesday, June 1, 2011

Civil Rights for Public School Students

Before I begin with the thrust of this blog post, which is to demand that student's rights to free speech and free press be protected, and before I expose and go against those who seek to deny those rights seek to punish those who do exercise those rights, please let me state my fundamental and moral principles to avoid confusion and eliminate a lot of potential hate e-mail.

Legally, the most fundamental principles I believe in are the Bill of Rights to the Constitution of the United States. I believe that any law, rule, regulation, or enforcement or application of any law, rule or regulation which is contrary to the express and implies (yes I said that controversial word, "implied") in the Bill of Rights is and should be void. I believe that regulatory bodies, like the FCC, and other institutions, like School Boards and the school systems, are quasi-governmental institutions and the same pro
Morally, I abhor violence, and believe that society would be far better off if physical violence were forever eliminated and banned. (Why am I talking about violence in an article about free speech? Because usually free speech is exercised at the fringes to encourage "hate speech" which either advocates indirectly violence, oppression, and discrimination, or has as its intended effect to promote violent reaction in others. This kind of speech is at the "fringe" of permissible speech, is the most morally repugnant, yet it also has to be protected. Why, because it is the border beyond which lesser objectionable speech stands firm. I remember as a law student at the University of Pennsylvania, doing some research on Freedom of Speech, it was the Hare Krishnas (an organization I do not like and distrust as a cult), who was the vanguard in establishing and protecting our right to free speech in many contexts, including, for example, the right to freedom of speech in public places such as airports. While I dislike and disavow their goals, their methods benefited us all tremendously.
These two principles may seem in conflict, but they are not. Individual violence is not endorsed or even expressly allowed in the constitution. Limited violence as punishment or in self-defense by the government is explicitly authorized in the Constitution itself, and the right to bear arms contained in the Bill of Rights is not a license to use those arms. Only limited police action on the part of the government, in self-defense of our country and people, is authorized, with serious and substantial safeguards (occasionally ignored.)
Back to the topic. Schools are public or quasi-public institutions. Unfortunately, in a recent series of cases in the news, the speech which was punished was far from "hate speech," and was clearly within the boundaries of which is most definitely protected and most certainly should be protected free speech. In the post-9/11 and post Columbine world, our schools have totally quashed Freedom of Speech. What the school administrations ignore is that only congress and the states can amend the Bill of Rights, not a principal or school board.
School administrators ignore the effect of the speech with the manner of delivery of the speech in the name of providing and administering an educational institution. It is clear that one cannot set up a loudspeaker during school time which drowns out the teacher's voice while the teacher is trying to educate her class. This is clear, regardless of whether the speech is morally repugnant hate speech or a mere unauthorized "pep rally" supporting the football team. Note the point here, it is the method of delivery of the speech, not the content of the speech.
Another type of appropriately limited or controlled speech is illustrated by the often used example of yelling "Fire" in a crowded movie theater. This is not content neutral, but is properly restricted because the effect of the speech so clearly causes imminent threat to human safety (when the crowd stampedes out of the theater for no reason). What is sought to be controlled is not the content of the speech, but the effect of the "words in the speech." In the same way that broadcasting a pep-rally has the effect of disrupting teaching, so does falsely yelling "fire."
This is also an example of the dangerous "grey" border where administrators can err by making content oriented decisions based upon the effect of the speech. Hate speech is an example. What if a racist group (assume the Neo-Nazis since I am Jewish and don't want to offend anyone who can claim I am indifferent to their plight) politely hands out anti-Semitic papers in a public area immediately after school in an area appropriate for handing out materials, at an appropriate time, but since the school has a Jewish population, the effect of the speech will cause stress, anger, hostility, and possibly violence by the recipients.
Why is this different from yelling fire in a movie theater since both can cause real problems. To draw an analogy, one Supreme Court Justice, when asked to define what "obscenity" was, responded with words to the effect that he would know it when he sees it. While it is true that many times, justice, and the rule of law, involves neither simply the facts or the law, but the application of the law to the facts, it is essential that we do so in a manner which is content neutral as Freedom of Speech is a paramount principle upon which our entire society, justice system, and way of life is based. Look towards every repressive regime, whether secular or religious, and you will find the absence of freedom of speech.
So how do we draw the distinction. First, I am not really trying to address this borderline issue in this article. Without legal research, I would assume and suggest that the administrators take reasonable measures to allow the students seeking to espouse repugnant speech against the harm that will result. Police presence is one manner often used to balance the rights of hate groups to speak against the harmful effects of that speech. Remember, what passes for repugnant speech has, in many occasions, with the passage of years, become accepted mainstream thought.
What concerns me is not the grey, borderline issues, but the efforts of public schools to strictly clamp down on even the mildest exercise of Freedom of Speech in school, and the exercise of Freedom of Speech outside of school.
Two cases come to mind. One involves a local case involving girls who wanted to raise awareness about breast cancer by wearing a bracelet which said something like, "I love boobies" except that the word love was omitted and a heart was used. The administrators thought that boys would be aroused by this and the administration of education would be interfered with. As a personal comment, I would suggest those administrators be more concerned with the use of illegal drugs in that school, especially by the administrators who sought to ban those bracelets as they must have been on drugs to take such a step. Here is the most benign speech conveyed in a non-disruptive method. The argument about the effect on boys is irrelevant, and in this case ridiculous, as middle school boys are well aware of girls and their anatomy. In fact, statistics show that the most abuse of dangerous and illegally obtained prescription medicine occurs/begins by children at the ages of 13 and 14. These kids are involved in, aware of, and threatened by far more serious issues than an interest in the opposite sex. This is an example of public schools just trampling and totally ignoring the fundamental rights of students to exercise free speech.
Another case involves a girl who made a statement about a teacher in her Facebook page. Aside from the fact that the person who was mentioned was a teacher, all the activity occurred outside of school through a non-school means of communication. She said something like, I wish Osama Bin Laden would have killed my teacher instead of those 3,000 people. First, there are a lot of ways of interpreting this. I wish Bin Laden would have killed me instead of those 3,000 people, not because I want to die, but because it would be a worthy sacrifice. But the student probably meant it metaphorically, as so many of us say things we neither really mean or intend as expressions of passion. Once again, the school totally overstepped its authority and trampled her rights (I believe she was suspended.) Absent a real plot or conspiracy to do harm in school to a teacher or student, students have the absolute right to say [or do] anything they want outside of school.

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Civil Rights for public students Civil Rights for public students Civil Rights Bill of Rights First Amendment Lower Merion School district lmsd Lower Merion School district lmsd Lower Merion School district lmsd Lower Merion School district lmsd defend protect


  1. This seems like a good post. When will you finish it?

  2. The problem is, this Country is getting good at ignoring everyone's rights. It is no surprise that students should have there rights denied.