NJPSA Education Law Primer - Public Schools and the First

New Jersey Principals and Supervisors Association

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NJPSA Education Law Primer

Public Schools and the First Amendment

NEW JERSEY PRINCIPALS

AND SUPERVISORS ASSOCIATION

Introduction

The First Amendment - U.S. Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there-

of; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

N.J.S.A. Const. Article 1, Paragraph 6 — New Jersey Constitution

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the

abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press…

Both of the above provisions establish the freedom of individual expression. The First Amendment pro-

vides the protection of the federal government, and Article 1 Paragraph 6 sets forth the corresponding

state protection. The language found in the First Amendment and in Article 1 Paragraph 6 is straightfor-

ward and simple. The government is prohibited from adopting laws that interfere with religious exercise,

the right of expression, the right to assemble and the right to bring to any government entity issues of

concern. Yet, the language of the First Amendment and the corresponding provision found in New Jersey’s

Constitution and the principles they embody have inevitably found controversy and have often proved dif-

cult to implement. At their core they both speak to the interest of individual expression. The challenge

has always been to balance that interest with the need for the government to maintain order, whether in

the case of a member of the general public shouting obscenities at a public ofcial, or students having a

“sit-in” protest outside the principal’s ofce. In terms of the general public, the latitude given has always

been greater than in the case of the student in the classroom. Still, however mindful the courts have been

of the need for schools to maintain discipline to achieve their educational mission, thecourts also have

found – at least in the last 50 years – that students too have rights; that they do not “shed their constitu-

tional rights at the schoolhouse gate.”

This “primer” focuses on how the courts have sought to preserve school authority while protecting stu-

dent expression; on how courts have sought to protect students’ free exercise of religion with the need to

maintain government neutrality. If there is a rule established by the cases, it is that student speech that

does not disturb or undermine a school’s mission, and does not interfere with someone else’s right, is tobe

protected, whereas language or acts that prevent schools from achieving their mission, or which inter-

feres with the rights of others may be regulated or banned altogether.

NJPSA Education Law Primer

Public Schools and the First Amendment

February 2016

by Robert M. Schwartz, Esq.

Table of Contents

Individual Personal Speech ..............................................4

Individual School-Sponsored Speech ........................................5

School Newspapers - School Sponsored Speech .................................6

Threatening Speech - Zero Tolerance ........................................ 9

Flag Salute .........................................................10

Regulation of School Dress ............................................... 11

Dress .............................................................11

Length of Hair .......................................................14

Transgender Students ..................................................14

Internet - Home Use ...................................................16

Disclosure of Student Information ..........................................18

Religious Speech .....................................................20

Moment of Silence ....................................................21

Religious Speech - Graduation Exercises ......................................21

Religious Speech – Prayer at Public School events ...............................22

Equal Access - School Clubs & The Equal Access Act 20 U.S.C. Sec. 4071 .................23

1st Amendment Rights of Elementary School Students ............................25

Student Speech

Essentially, courts analyze student speech cases in

two contexts: rst in the context of “political” speech

and whether such speech is disruptive, and second

in the context of speech found to be lewd and/or

offensive. Political speech is accorded constitutional

protection, whereas speech determined to be lewd or

offensive is not. For political speech to be constrained

or regulated a school district must show “substantial”

disruption of the school environment justifying the

regulation or constraints made. No such justication is

necessary for speech found to be lewd, vulgar and/or

offensive.

With regard to political speech, because it is accorded

constitutional protection, an administrator’s ability

to regulate it is dependent on whether it is disruptive

of the school environment. The disruption has to be

real and discernable. It can’t simply be anticipated

because the speech offends the sensibilities of staff or

administration. That was made clear by the Supreme

Court in 1969 in the landmark case of Tinker v. Des

Moines where the court said that “undifferentiated

fear or apprehension of disturbance is not enough to

overcome the right of freedom of expression.”

Individual Speech

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969).

The constitutional right to ‘political expression’

asserted was a right to wear black armbands during

school hours and at classes in order to demonstrate

opposition to the Vietnam War. School administration

became aware of the students’ plan of protest.

As a result, the district adopted a policy that any

student wearing an armband to school would be

asked to remove it, and if he refused he would be

suspended until he returned without the armband.

Of the school system’s 18,000 pupils, apparently

only a handful refused to obey the school policy.

One defying pupil was Paul Tinker, 8 years old, who

was in the second grade; another, Hope Tinker, was

11 years old and in the fth grade; a third member

of the Tinker family was 13, in the eighth grade;

and a fourth member of the same family was John

Tinker, 15 years old, an 11th grade high school pupil.

Another student who deed the school policy and

insisted on wearing an armband inschool was also

an 11th grade pupil. They were all sent home and

suspended from school until they came back without

their armbands. They led a lawsuit claiming, among

other things, a violation of their right of free speech

under the First Amendment.

Issues presented to the U.S. Supreme Court:

• Were the black armbands worn by the students

an expression of speech?

• Were the black armbands disruptive of the

school setting?

• Did the school district have the right to

prevent the students from wearing black

armbands?

The Court concluded that:

(1) wearing black armbands was an expression of

speech, (2) there was no evidence to demonstrate

that it was sufciently disruptive to the school

setting, and (3) the school district did not have the

authority to prevent the students from wearing the

armbands.

The Court upheld the “students’ right to [wear

black armbands]” because there was no evidence

whatsoever of plaintiffs’ interference, “actual or

nascent, with the schools’ work or collision with

the rights of other students to be secure and to be

left alone.” Id. at 508.

The Court concluded that neither students nor

teachers “shed their constitutional rights to freedom

of speech or expression at the schoolhouse gate.”

Do students in school have the same right of free

speech as the general public?

The Court said that the shape of the rights of

students and teachers - the extent of their rights

- in the public school setting do not always mirror

the contours of constitutional protections afforded

in other contexts.

“That [schools] are educating the young for

citizenship is reason for scrupulous protection of

constitutional freedoms of the individual, if we

are not to strangle the free mind at its source and

teach youth to discount important principles of

our government as mere platitudes.’ On the other

hand, the Court has repeatedly emphasized the

need for afrming the comprehensive authority

of the States and of school ofcials, consistent

with fundamental constitutional safeguards, to

prescribe and control conduct in the schools. Our

problem lies in the area where students in the

exercise of First Amendment rights collide with the

rules of the school authorities.” Id. at 507

When can student speech in school be regulated?

In the context of the facts in Tinker - “the wearing

of black armbands” - the Court said that “conduct

by the student, in class or out of it, which for any

reason - whether it stems from time, place or type of

behavior - materially disrupts class work or involves

substantial disorder or invasion of the rights of others

is… not immunized by the constitutional guarantee of

freedom of speech.” Id. at 513.

In order for the State “in the person of school

ofcials to justify prohibition of a particular

expression of opinion, it must be able to show

that its action was caused by something more

than a mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular

viewpoint. Certainly where there is no nding and

no showing that engaging in the forbidden conduct

would ‘materially and substantially interfere with

the requirements of appropriate discipline in the

operation of the school, the prohibition cannot be

sustained.” Id. at 509.

The standard created in Tinker is that speech which

does not disrupt the school environment and which

does not negatively interfere with the rights of

others can’t be silenced.

However, the Court’s decision was not unanimous.

Justice Black wrote a vigorous dissent criticizing

the majority opinion stating that he believed it

ushered in “an entirely new era in which the power

to control pupils by the elected ‘ofcials of state

supported public schools” was being effectively

“transferred to the Supreme Court.” Justice Black

said that the Court had arrogated “to itself, rather

than to the State’s elected ofcials charged with

running the schools, the decision as to which school

disciplinary regulations are ‘reasonable.” As he saw

it, the “crucial remaining questions are whether

students and teachers may use the schools at their

whim as a platform for the exercise of free speech—

‘symbolic’ or ‘pure’— and whether the courts will

allocate to themselves the function of deciding how

the pupils’ school day will be spent… This case,

wholly without constitutional reasons subjects all

public schools to the whims and caprices of their

loudest- mouthed, but maybe not their brightest,

students. I, for one, am not fully persuaded that

school pupils are wise enough, even with this

Court’s expert help from Washington, to run the

23,390 public school systems in our 50 States. I

wish, therefore, wholly to disclaim any purpose

on my part to hold that the Federal Constitution

compels the teachers, parents, and elected school

ofcials to surrender control of the American public

school system to public school students. I dissent.”

Tinker at 517- 526

Individual School Sponsored Speech

Bethel School District No. 403 v. Fraser, 478 U.S.

675 (1986).

A public high school student delivered a speech

nominating a fellow student for a student elective

ofce at a voluntary assembly that was held

during school hours as part of a school sponsored

educational program in self-government. It was

attended by approximately 600 students, many of

whom were 14-year olds. During the speech the

student referred to his candidate in terms of an

“elaborate, graphic and explicit sexual metaphor.”

Some students “hooted” and “yelled” during the

speech, some “mimicked the sexual activities

alluded to” in the speech, and others appeared to

be “bewildered and embarrassed.”

Prior to delivering the speech, the student had

discussed it with several teachers, two of whom

advised him against giving it.

The morning after the assembly, the assistant

principal called the student into her ofce and

notied him that the school considered the speech

a violation of the school’s “disruptive conduct rule.”

This rule prohibited conduct that “substantially”

interfered with the educational process, including

the use of obscene, profane language or gestures.

The student was told that he would be suspended

for three days and that his name would be removed

from the list of names for graduation speaker at the

school’s commencement exercise.

The District Court’s decision held in favor of the

student. It found the school’s disruptive conduct

rule unconstitutionally vague and overbroad

and the student’s removal from the graduation

speaker’s list a violation of his rights of due process

because the disciplinary rule made no mention of

such removal as a possible sanction. The student

was awarded $278.00 in damages, $12,750 in

litigation costs, attorney’s fees, and the school

district was enjoined from preventing the student

from speaking at the commencement ceremonies.

The Court of Appeals afrmed the District Court

decision. It rejected the school district’s argument

that it had an interest in protecting the student

audience made up of minors from lewd and

indecent language concluding that the school

district’s “unbridled discretion” to determine what

constitutes “decent” discourse would “increase the

risk of cementing white, middle class standards for

determining what is acceptable and proper speech

and behavior in our public schools.”

The Supreme Court reversed.

Was there a distinction between the “speech”

given by Fraser and the “form of speech” exercised

by wearing the black armbands in Tinker?

The Court described the form of speech exhibited

by the students in Tinker — wearing the black

armbands — as “non-disruptive, passive expression

of a political viewpoint” that did not “intrude upon

the work of the schools or rights of other students.”

Tinker at 508. In contrast, the Court viewed the

speech given by Fraser as “non- political, vulgar

and lewd, which undermined the schools basic

educational mission.” Fraser at 675.

What did the Court say about the authority to

regulate student speech?

“The First Amendment does not prevent school

ofcials from determining that to permit a vulgar

and lewd speech such as the speech given by Fraser

would undermine the school’s basic educational

mission. A high school assembly or classroom is no

place for a sexually explicit monologue directed

towards an unsuspecting audience of teenage

students.” Id. at 685.

What gives a school the right to regulate student

speech?

To fulll their educational mission. The role and

purpose of the public school system is to (1)

prepare pupils for citizenship and (2) inculcate the

habits and manors of civility indispensable to the

practice of self-government in the community and

nation. Id. at 681.

Bong Hits 4 Jesus

School authorities do not violate the First Amendment

when they stop students from expressing views that

may be interpreted as promoting illegal drug use.

In Morse v. Frederick, 551 U.S. 393 (2007), the

United States Supreme Court was asked to consider

a student 1st Amendment case. In January 2002, an

18 year old high school student unveiled a 14 foot

paper banner on a public sidewalk outside his high

school in Juneau, Alaska. The unveiling took place

while the Olympic torch relay was moving through

the Alaska capital on its way to the Salt Lake City,

Utah, Winter Games. The banner read “Bong Hits

4 Jesus.” The principal ordered the student to

take down the banner and when he refused to do

so, the principal suspended him for 10 days. The

student challenged his suspension and the case

was appealed all the way up to the U.S. Supreme

Court. In a 6-3 vote, the Supreme Court ruled that

the student’s free speech rights were not violated

by his suspension. In the majority’s written opinion,

the Court found that “[i]t was reasonable for (the

principal) to conclude that the banner promoted

illegal drug use – and that failing to act would send

a powerful message to the students in her charge.”

School Newspapers -

School-Sponsored Speech

Hazelwood School District v. Kuhlmeier, 484 U.S.

260 (1988)

The school newspaper, the Spectrum, was written and

edited by the journalism ll class at Hazelwood East

High School. It was published about every three weeks

during the 1982-83 school year. More than 4,500

copies of the newspaper were distributed during that

year to students, school personnel and members of

the community. The Board of Education had allocated

funds from its annual budget for the printing of

the Spectrum. These funds were supplemented by

proceeds from the sale of the newspaper. Costs,

such as supplies, textbooks and a portion of the

journalism teacher’s salary were born entirely by

the Board. The practice had been for the journalism

teacher to submit page proofs of each issue to the

principal for his review prior to publication. On May

10,1983 proofs were submitted to the principal. The

principal objected to two articles, one describing

three Hazelwood East students’ experiences with

pregnancy, and the other with the impact of divorce

on students at the school. The principal said he was

concerned that the pregnancy story might lead to the

identication of pregnant students though the story

itself referred to ctitious names. He also believed

that the articles’ references to sexual activity and

birth control were inappropriate for some of the

younger students at the school. As for the divorce

story, his concern was that the parents should have

been rstnotied of the student’s remarks and that

they should have consented to the publications of

the remarks which referred to the student’s concern

that her father was spending too much time away

from home. Believing that there was insufcient time

to make changes in the stories before the scheduled

press run, the principal deleted both stories prior

to the newspapers publication. As it turned out,

the principal later learned that the student’s name

identied in the story had been deleted from the

nal proofs. The staff of the newspaper, teachers

and students included, brought an action against the

school district claiming that their rst amendment

rights had been violated.

When is a public forum created?

School facilities may be deemed to be public

forums only if school authorities have “by policy

or by practice” opened those facilities “for… use

by the general public, or by some segment of the

public, such as student organizations.” Id. at 268.

Was the school newspaper — The Spectrum —

deemed to be a public forum?

The Court concluded that the Spectrum was not

a public forum because it was a school sponsored

publication developed within the adopted curriculum

with educational implications in regular classroom

activities. As a result, school ofcials were within

their authority to impose reasonable restrictions on

what the newspaper could publish.

The Court came to this conclusion because the

school had assigned the journalism teacher to act

as the advisor to the Spectrum. In this capacity

he selected the editors of the paper, scheduled its

publication dates, decided the number of pages for

each issue, assigned story ideas to class members,

advised students on the development of their

stories, reviewed the use of quotations, edited

stories, selected and edited the letters to the editor,

and dealt with the printing company. He was the

nal authority with respect to almost every aspect

of the production and publication of the newspaper,

including its content. In addition, after each issue

had been approved by the advisor, the issue then

went to the principal for his review. Id. at 268-269.

Was the First Amendment issue in Hazelwood

distinct from the one raised in Tinker?

In Tinker, the issue was the student’s personal

expression which happened to occur on school

premises. In Hazelwood, the issue was over

educators’ authority over school sponsored

publications, theatrical productions and other

expressive activities that students, parents and

members of the public might reasonable perceive

to bear the “imprimatur” of the school. These

activities may fairly be characterized as part of

the school curriculum, whether or not they occur

in a traditional classroom setting, so long as they

are supervised by faculty members and designed

to impart particular knowledge or skills to student

participants and audiences. Id. at 271.

Do schools have greater authority to regulate

school sponsored expression as opposed to

students’ personal expression?

“Educators are entitled to exercise greater control

over school sponsored student expression to ensure

that participants learn whatever lessons the activity

is designed to teach, that readers and listeners are

not exposed to material that may be inappropriate

for their level of maturity, and that the views of the

individual speaker are not erroneously attributed to

the school. Hence, a school may in its capacity as

publisher of a school newspaper or a producer of a

school play disassociate itself, not only from speech

that would substantially interfere with its work or

impinge upon the rights of other students, but also

from speech that is, for example, ungrammatical,

poorly written, inadequately researched, biased

or prejudiced, vulgar or profane, or unsuitable for

immature audiences.” Id. at 271.

What is the standard by which schools may

regulate the content of school newspapers?

Educators are permitted to exercise editorial

control over the style and content of student

speech in school sponsored expressive activities

as long as their actions are reasonably related to

legitimate pedagogical concerns. Id. at 272-273.

Was the principal’s action to delete two

pages of the newspaper reasonable under the

circumstances?

The Court concluded that it was not unreasonable

for the principal to conclude that neither the

pregnancy article nor the divorce article was suitable

for publication in the Spectrum. The Court said

that the principal could reasonably have concluded

that the students who had written and edited the

articles had not sufciently mastered those portions

of the journalism ll curriculum that pertained to

the treatment of controversial issues and personal

attacks. The principal also had a legitimate

concern for the need to protect the privacy of the

individuals and whether the students understood the

legal, moral and ethical restrictions imposed upon

journalists within a school community that includes

adolescent subjects and readers. Id. at 276.

Desilets on behalf of Desilets v. Clear view

Regional Board of Education, 137 N.J. 585 (1994)

Plaintiff was a member of the student staff of the

school newspaper, known as the Pioneer Press. Any

student could become a staff member. The paper

covered topics such as sports, entertainment and

news. The staff met after school, and had no set

number of issues, which it published. There were

no grades or course credit given for participation

on the newspaper. Students usually volunteered to

type the articles themselves.

Student editors would select pictures that went

with the articles. The paper was distributed to

all students and staff at the junior high school.

Each issue would be reviewed by a faculty advisor

assigned to the paper. The paper was totally funded

by the School Board. The Board paid the faculty

advisor’s salary and paid for all the materials and

supplies for the newspaper.

In January 1989 plaintiff submitted two movie

reviews for publication in the school newspaper -

for “Mississippi Burning” and “Rain Man,” both of

which were R rated. The faculty advisor voiced no

objection to the articles. A month later, when the

newspaper was distributed, the plaintiff learned

that his movie reviews had not been published. The

faculty advisor told the plaintiff that the principal

had taken the articles out because the movies

were R rated. The principal told the faculty advisor

that the reviews of the two R rated movies would

prompt students under the age of 17 to see them.

The school superintendent testied that he would

not permit the paper to publish reviews of R rated

movies while he was superintendent. Prior to his

becoming superintendent the paper had published

reviews of three R rated movies.

The policy regarding student publications did not

contain a specic category or blanket prohibition on

R-rated movies.

The Policy

According to the school policy, the following

categories of materials were deemed to be

unprotected by the right of free expression because

they violated the rights of others:

a. items grossly prejudicial to an ethnic, religious

or racial group;

b. libelous material;

c. material which sought to establish the

supremacy of a particular religious point of view;

d. material which advocated the use or advertised

the availability of any substance believed to

constitute a danger to student health;

e. obscene material or material “otherwise

deemed to be harmful to impressionable

students who may receive them”;

f. material which advocated violence or force;

g. advertisements for prot-making organizations;

h. material which failed to identify the student

responsible for its publication;

i. material offered for sale to other students;

j. solicitations for other than school organizations,

which are not previously approved by the

Board; and

k. material supporting or opposing a candidate

for election to the school board, or the

adoption of any bond issue.

Was the school newspaper, the Pioneer Press, a

“public forum?”

The Supreme Court concluded, as had the lower

courts, that the student newspaper, the Pioneer

Press, was not a public forum. Concededly, students

participating in the Pioneer Press, unlike those who

participated in the publication of the Spectrum in

Hazelwood, did not receive grades or academic

credit for their participation in the newspaper. In

addition, the publication was not part of the regular

classroom assignments. However, as in Hazelwood the

publication was supervised by a designated faculty

member and it was reasonable for students, parents

and members of the public to perceive the school

sponsored publication to bear the “imprimatur” of

the school, “whether or not [such activities] occur

in the traditional classroom setting, as long as [those

activities] are supervised by faculty members and are

designed to impart knowledge or skills to the student

participants and/or audiences.” Id. at page 590.

Did the R rated movie reviews in the Pioneer Press

raise the same educational concerns that called

for the editorial control exercised in Hazelwood?

The Court said no. In Hazelwood,the censorship was

based on content and journalistic style. In Desilets,

the censorship had only to do with subject matter.

The movie reviews contained brief descriptions

of both movies with terse recommendations. For

“Mississippi Burning” the review read as follows:

Mississippi Burning is about the murder of three

civil rights activists in Philadelphia, Mississippi

in 1964. Two F.B.I. agents, Hackman and DaFoe,

are sent to Mississippi to investigate the

disappearance of three men. When they arrive,

they nd themselves unwanted by the people and

the local police. None of the blacks will talk to

the men, because they were harassed by the KKK

(Ku Klux Klan) for doing so. In the end, the bodies

are found, the police and Klan members are

jailed and the F.B.I. leaves. The movie is worth

the price of the ticket, but if you are looking for

facts they are not here.

For “Rain Man” the review read:

In this lm, Charlie Babbit (Tom Cruise) nds that

he has a brother, Raymond (Dustin Hoffman) that

has inherited three million dollars in their father’s

will. However, Raymond is autistic and does not

understand the concept of money. Charlie then

kidnaps“Rain Man” from a mental institution, and

the two leave for a week long drive across the

country. On this ride the two become great friends

and experience many adventures. Dustin Hoffman

did an excellent job of playing an autistic savant.

The movie is hilariously funny and I think that

everyone should see it.

The decision to censor was based solely on the fact

that the subject matter of the review was R-rated.

“The point of the censorship was not to address the

stylistic deciencies or the words chosen by the

writer to convey his information; it was to suppress

the idea itself.” Id. at 592.

Was the school’s censorship of the two movie

reviews in the Desilets matter a violation the

student’s First Amendment rights?

The Court concluded that the Board had failed to

establish a legitimate educational policy that would

govern the publication of the challenged materials

and as a consequence, the school authorities had

violated the student’s expressional rights under the

First Amendment. Id. at 593.

The superintendent had admitted in his testimony

that there was no specic policy regarding R-rated

movie reviews. Nevertheless, he testied that the

reviews needed to be censored because they posed

a “danger to student health” by advocating or

encouraging having students see R-rated movies.

However, neither the superintendent, nor anyone

else explained how R rated movie reviews posed a

danger to student health. Moreover, the evidence

suggested that the policy was often ignored or

applied inconsistently because R rated movies were

discussed in class and referred to and made available

in the school library and in fact had been previously

reviewed and published by the student newspaper.

Threatening Speech - Zero Tolerance

Even though the United States Supreme Court has

made clear that “true threats” are not protected

speech under the First Amendment and are

punishable, it has not clearly dened what speech

constitutes a “true threat.”

Third Circuit Decision:

S.G. as guardian ad litem of A.G. a minor and

individual v. Sayreville Board of Education 333 F.

3d 417 (2003)

A.G. was a 5-year old kindergarten student at the

Wilson Elementary School in Sayreville. There were

three incidents in early March of 2000. On March 4,

2000 a student told other children that he intended

to shoot a teacher. In an unrelated incident the

same day, another student told a classmate that he

would put a gun in the classmate’s mouth and kill

him. On March 10, 2000 a student told another that

his mother allowed him to bring guns to school.

The students making these statements were each

suspended for three days.

After these incidents the principal visited each class

and discussed the seriousness of making statements

threatening harm with a weapon. On the same day —

March 10 — she sent a letter home with each student

asking parents to discuss the issue with their children

and stating that immediate disciplinary action would

be taken when students make statements referring

to violence or weapons. A.G. was absent on March

10th and his parents did not receive the letter.

On March 15, 2000 A.G. and three other students were

playing a game of cops and robbers and said “I’m

going to shoot you.” Another student told the teacher

what A.G. and his friends were doing. The teacher

reported some of the students were upset. When A.G.

and his friends were taken to the principal’s ofce,

they told her that they were “playing guns.”

There was some dispute as to what affect, if any, the

game and the statement made by A.G. had on other

students. The principal testied that the students she

spoke to were frightened and upset. A.G. testied

that the only student who had heard him and his

friends was the student who reported on them. A.G.

and his friends were suspended for three days. A.G.’s

suspension was not part of his permanent scholastic

record, but the principal had a record of it in her

personal le which she said she “would be free to

share with the principal in other schools…” A.G.’s

father led suit against the Board, the principal and

the superintendent claiming that A.G. was denied his

constitutional rights of free speech.

Is a school’s authority in an elementary setting

different from the authority that may exist in a

high school setting?

The Court said that a school’s authority to control

student speech in an elementary school setting is

undoubtedly greater than in a high school setting.

“There can be little doubt that speech appropriate

for 18-year old high school students is not necessarily

acceptable for 7-year old grammar school students.”

Did the school’s action against A.G. violate his

freedom of speech?

Sayreville’s action against A.G. did not violate

his First Amendment rights because a school’s

prohibition of speech threatening violence and the

use of rearms is a legitimate decision related to

the reasonable pedagogical concerns.

Was the principal acting within her authority?

Like the language found to be vulgar in Bethel v.

Fraser, it was not unreasonable in this matter for

the principal to have concluded that she had the

authority to take action against students for the

use of threatening language at school on the basis

that it undermined the school’s basic educational

mission, particularly because this incident occurred

only two weeks after a widely reported fatal

shooting of a 6-year old by another 6-year old child

at an elementary school in Flint, Michigan. Though

the students through their parents contended that

they were only playing a game, the Court said that

the determination of what manner of speech is

inappropriate properly rests with school ofcials.

Flag Salute

18A:36-3. Display of and salute to ag; pledge of

allegiance

Every board of education shall:

a. Procure a United States ag, agstaff and

necessary appliances therefore for each school

in the district and display such ag upon or near

the public school building during school hours;

b. Procure a United States ag, agstaff and

necessary appliances or standard therefore

for each assembly room and each classroom

in each school, and display such ag in the

assembly room and each classroom during

school hours and at such other time as the

board of education may deem proper; and

c. Require the pupils in each school in the district

on every school day to salute the United

States ag and repeat the following pledge

of allegiance to the ag: “I pledge allegiance

to the ag of the United States of America

and to the republic for which it stands, one

nation, under God, indivisible, with liberty

and justice for all,” which salute and pledge

of allegiance shall be rendered with the right

hand over the heart, except that pupils who

have conscientious scruples against such

pledge or salute, or are children of accredited

representatives of foreign governments to

whom the United States government extends

diplomatic immunity, shall not be required

to render such salute and pledge but shall be

required to show full respect to the ag while

the pledge is being given merely by standing at

attention, the boys removing the headdress.

Lipp v. Morris 579 F.2d 834 (3d Cir.,1978)

Plaintiff, Deborah Lipp, a 16-year-old student at

Mountain Lakes High School, alleged that because

the statute directed that she stand during the

recitation of the pledge of allegiance to the

ag, compelling her to make what she termed a

“symbolic gesture,” it violated her rights under

the First and Fourteenth Amendments. Plaintiff

emphasized that in her belief, the words of the

pledge were not true and she stood only because

she had been threatened if she did not do so.

Can a school district enforce the ag salute statute’s

section requiring those who choose not to participate

to stand while the allegiance is being recited?

The mandatory requirement that Ms. Lipp stand was

an unconstitutional requirement that the student

engage in a form of speech and may not be enforced.

Note: Despite the fact that the Third Circuit

Court of Appeals struck down a portion of N.J.S.A.

18A:36-3 as being unconstitutional, the statute has

never been amended to reect the Court’s decision.

Regulation of School Dress

N.J.S.A. 18A:11-8 Adoption of dress code policy

for school permitted.

a. A board of education may adopt a dress code

policy to require that students wear a student

uniform if the policy is requested by the

principal, staff and parents of an individual

school and if the board determines the policy

will enhance the school learning environment.

Any policy adopted which requires the wearing

of a uniform shall include a provision to assist

economically disadvantaged students. The

board shall hold a public hearing prior to the

adoption of the policy and shall not implement

the policy with less than three months notice

to the parents or guardian of the students. The

specic uniform selected shall be determined

by the principal, staff and parents of the

individual school.

b. The board of education may provide a method

whereby parents may choose not to comply

with an adopted school uniform policy. If the

board provides such a method, a student shall

not be penalized academically or otherwise

discriminated against nor denied admittance

to school if the student’s parents choose not to

comply with the school uniform policy.

c. (c) A dress code policy adopted pursuant to

this section shall not preclude students who

participate in a national recognized youth

organization which is approved by the board of

education from wearing organization uniforms

to school on days that the organization has

scheduled a meeting.

Points established by the statute:

a. There must be no less than 3-months advance

notice to the parents or guardians of the

students and provisions must be made to assist

economically disadvantaged students.

b. Parents may be provided with a method to

choose non-compliance with the adopted

school uniform policy. If such a method is

provided students may not be penalized for

non-compliance.

c. If a dress code policy is adopted, it cannot

preclude students who participate in a nationally

recognized youth organization from wearing the

organization uniform to school on days where

the organization has scheduled a meeting.

Note: The NJ statute that allows boards of

education to require students to wear uniforms to

school does not violate students’ First Amendment

rights, and is constitutional. Dempsey v. Allston

(App. Div. 2009)(Pleasantville BOE)

N.J.S.A. 18A:11-9 Prohibition of gang-related

apparel

A board of education may adopt a dress code policy

to prohibit students from wearing, while on school

property, any type of clothing, apparel or accessory,

which indicates that the student has membership in,

or afliation with, any gang associated with criminal

activities. The local law enforcement agencies shall

advise the board, upon its request, of gangs which

are associated with criminal activities.

Dress

Broussard v. School Board of Norfolk, 801 F. Supp.

1526 (Eastern Dist. Va. 1992)

The courts in many jurisdictions have found that

disruptive or vulgar dress, or dress signifying gang

membership may be prohibited, and pupils wearing

such dress may be disciplined. In one instance,

even a ban on a T-shirt with an anti-drug message

was condoned by a court.

In Broussard, a school district’s discipline of a

middle school pupil forwearing a T-shirt with the

words “drugs suck” was upheld. The court ruled

in favor of the school board, noting that although

the shirt displayed an anti-drug message, the

word “sucks” was a vulgar word with a sexual

connotation and therefore not allowed in school.

Chalifoux v. New Caney Indep. Sch. Dist. 976, F.

Supp. 659 (S.D. Tex. 1997)

School authorities prohibited a devout Catholic

student from wearing rosary beads on the basis

that some gangs had adopted rosary beads as

their symbol. The court struck down the ban on

First Amendment grounds on the basis that the

New Caney School District had failed to show that

wearing the rosary beads had caused any disruption

in the school.

Third Circuit Decision:

Sypniewski v. Warren Hills Regional Board of

Education, 307 F.3d 243 (2002).

The District’s history of racial disturbances

“Warren Hills public schools – particularly the

high school, were aficted with pervasive racial

disturbances throughout the 2000-2001 school

year.” 307 F.3d 243, 248. During the 2000-2001

school year some students formed a “gang-like”

group known as the “Hicks” which held “White

Power Wednesdays” by wearing Confederate

ag clothing. In one incident a student waived

a large Confederate ag while walking down a

main hallway of the high school. The ag was

subsequently conscated, but the student was

not disciplined. In another incident, a white

student, who had recently enrolled at the high

school, was harassed at home apparently in

response to his association with several African

American students. Numerous instances of racial

grafti were found on school walls, some of

which inspired hostile grafti responses. Near the

end of the school year, a ght occurred between

a black student and a white student that resulted

in one student sustaining a concussion and

requiring stitches.

The Warren Hills Regional Board of Education, in

response to “signicant disruption in the school”,

adopted a racial harassment policy which provided

as follows:

District employees and student(s) shall not

racially harass or intimidate other student(s)

or employee(s) by name calling, using racial

or derogatory slurs, wearing or possessing

items depicting or implying racial hatred or

prejudice. District employees and students shall

not at school, on school property or at school

activities wear or have in their possession any

written material, either printed or in their own

handwriting that is racially divisive or creates

ill will or hatred. (Examples: clothing, articles,

material publications or any items that denotes

Ku Klux Klan, Arayan [sic] nationwide supremacy,

black power, confederate ags or articles,

neo-Nazi or any other “hate” group. This list

is not intended to be all inclusive.) As part of

the instructional process, professional staff

may display and discuss divisive materials and/

or symbols when selected and used to enhance

knowledge, provided these topics are included

in the approved Warren Hills Regional Schools

curriculum.

The policy was implemented on March 13, 2001.

The District’s dress code policy provided as follows:

Students have the responsibility to dress

appropriately and to keep themselves, their

clothes and their hair clean. School ofcials may

impose limitations on student participation and

the regular instructional program where there

is evidence that inappropriate dress causes

disruption in the classroom and the lack of

cleanliness constitutes a health or safety hazard

or disruption of the educational program.

The following is considered inappropriate for

school:

a. Clothing displaying or imprinted with nudity,

vulgarity, obscenity, profanity, double-entendre

pictures or slogans, including those related

to alcohol, drugs and tobacco, or portraying

racial, ethnic or religious stereotyping.

b. Flip-ops, tongs and other hazardous

footwear.

c. Clothing which has been intentionally torn,

cut or ripped in a fashion, which displays the

anatomy.

d. Spandex garments without additional outer

clothing.

e. Clothing deemed gang related, including the

way the clothing is worn.

f. Gym type appeal, clothing intended as

undergarments worn as outer garments or see

through garments without appropriate under

garments.

g. Street coats, windbreakers, and head

coverings worn in the building. These items

should be placed in lockers immediately upon

arrival. Exceptions for medical or religious

reasons must be referred to the principal.

h. Bare mid-drift clothing.

Thomas Sypniewski, a senior at the high school, had

previously worn a “Foxworthy” t-shirt to school.

The shirt had the following text imprinted:

Top ten reasons you might be redneck sports fan…

10. You’ve ever been shirtless at a freezing

football game.

9. Your carpet used to be a part of football eld.

8. Your basketball hoop used to be a shing net.

7. There is a roll of duct tape in your golf bag.

6. You know that Hooter’s [sic] mean by heart.

5. Your mama is banned from the front row at

wrestling matches.

4. Your bowling team has its [sic]-own ght song.

3. You think the “bud bowl” is real.

2. You wear a baseball cap to bed.

1. You ever told your bookie “I was just kidding.”

On March 22, 2001, Thomas wore the T-shirt

to school forthe rst time since the school had

implemented its harassment policy. He wore

the shirt without incident until the last period

of the day when he was directed to go to the

vice principal’s ofce by a security guard at the

high school. The vice principal told him that the

shirt violated the school dress code because of

its references to the Bud Bowl and to Hooters

restaurant. The vice principal said that it was

in violation of the prohibitions on mentioning

alcohol and sexual innuendo. He also testied

that among his primary concerns was the shirt’s

reference to the word “redneck” “because of the

troubling history of racial tension at [the] school

and the possibility that the term ‘redneck’ would

incite some form of violence and at a minimum be

offensive and harassing to our minority population.”

The vice principal gave Sypniewski the option of

turning the shirt inside out. When he refused, the

vice principal suspended him for three days.

Apparently wishing to refrain from imposing

the stiffer penalties associated with the racial

harassment policy, Vice Principal Grifth did not

mention the harassment policy as a basis for his

action, even though he thought the shirt was also

prohibited by that policy.

The following day, Brian Sypniewski, Thomas’ younger

brother, wore his Foxworthy shirt to the middle

school. The vice principal of the middle school told

Brian he had spoken with the superintendent and that

they had determined the shirt was neither offensive

nor in violation of the dress code.

Thomas Sypniewski appealed his suspension to the

board of education. The board denied the appeal

and upheld the suspension. The board based its

decision on the dress code and insubordination—

not on the racial harassment policy. Referring to

Thomas’ brother, Brian, wearing the shirt without

penalty, the board stated “in hindsight action

should have been taken with respect to this

incident as well.”

Shortly after Thomas Sypniewski graduated from

the high school, he and his brothers led a lawsuit.

Under the dress code, could the Foxworthy t- shirt

be banned?

Yes, but only if it was found to substantially disrupt

school operations or interfere with the rights of

others.

The Board sought to ban the shirt on the basis that

its content was offensive - that because of racial

troubles at the Warren Hill Schools, the word “red

neck” had come to connote racial intolerance.

Based on the evidence there was little if any history

that the word itself caused disruption.

The Court said that where a school seeks to

suppress a term merely related to an expression

that has proven to be disruptive, it must do more

than simply point to a general association. It

must point to a particular and concrete basis for

concluding that the association is strong enough to

give rise to well-founded fear of genuine disruption

in the form of substantially interfering with school

operations or with the rights of others. It is not

enough that speech is generally similar to speech

involved in past incidents or disruptions. It must be

similar in the right way.

Did the school district have the authority to tell

Sypniewski not to wear the T-shirt based on the

racial harassment policy?

The vice principal claimed that it did because of

the word “redneck” on the shirt, the troubling

history of racial tension in the school and the

possibility that the term “redneck” would incite

some form of violence and at a minimum be

offensive and harassing to the minority population.

However, the Court concluded that there was not

enough in evidence to demonstrate the district’s

authority to ban the Foxworthy shirt based on the

racial harassment policy.

Can the district take preemptive action?

Yes. If there is a basis for a well-founded expectation

of disruption a school district has the power to act to

prevent problems before they occur.

Additional Student Dress Cases:

In DePinto v. Bayonne Board of Ed., 514 F.Supp.2d

633 (D.N.J., Sept. 17, 2007), students wore buttons

protesting a required school uniform policy.

The writing on the buttons overlaid a historical

photograph that appeared to portray Hitler youth.

The picture depicted dozens of young boys dressed in

the same uniforms and all facing the same direction.

But there were no visible Swastikas or any other

denitive indication that the boys were members

of the Hitler youth. However, no one denied that

the picture portrayed was an assemblage of the

Hitler youth. Believing that the button and what

it portrayed would be offensive to many Bayonne

residents, the Bayonne Board sent letters to each

of the students parents stating that the background

images on the buttons were objectionable and

threatened the students with suspension in the

event they wore the buttons again. Though the court

did not rule on the merits of the case, it granted a

preliminary injunction against Bayonne prohibiting

the district from carrying out any disciplinary

measures against the students.

C.H. v. Bridgeton Bd. of Ed. (D.NJ. 2010):

A high school student wore an armband saying

“Life” and distributed anti-abortion yers during

non-instructional time for Pro-Life Day of Silent

Solidarity; school prohibited armband as a dress

code violation, and yers as violating distribution

policy. Applying Tinker, the court held that the high

school could not show disruption to school from

armbands or literature; thus, court ordered school

district to allow these activities unless there was a

well-founded expectation of disruption.

I  Boobies! Bracelets:

B.H. v. Easton Area School District, 725 F.3d 293

(3d. Circuit 2013)

The Easton Area School District suspended two

female middle school students for refusing to remove

cancer awareness bracelets bearing the message

“Save the Tata’s. I love Boobies.” The students

were asked to remove the bracelets on the middle

school’s “Breast Cancer Awareness Day.” When the

students’ appeal reached the Federal District Court,

the Court ruled in their favor, concluding that: (1)

the bracelets worn by the students were not lewd

in any way and (2) wearing the bracelets caused no

disruption, much less the “substantial disruption”

that a school district typically must show in order to

ban this type of expression.

Length of Hair

Pelletreau v. New Milford Bd of Ed., 1967 S.L.D. 35

The Commissioner stated that a board may not

promulgate a dress code which is designed simply

to produce conformity among students, or which

attempts to impose its own standards of good taste.

As to the school regulation forbidding long hair,

the State Board of Education found it to be invalid

on the basis that it did not have a substantial

relationship to a legitimate purpose.

Note: In addition, students cannot be barred from

participating in school activities, such as band or

athletics, because of their hairstyle or because they

have a mustache or beard.

Transgender Students

The NJ Law Against Discrimination was enacted to

prevent and eliminate practices of discrimination

against persons based on race, creed, color, national

origin, ancestry, age, marital status, civil union

status, domestic partnership status, affectional

orientation, genetic information, pregnancy, sex,

gender identity or expression, and disability.

Today, alleged transgender discrimination has been

increasingly placed in the spotlight.

In the summer of 2014, it was reported that a

13-year-old transgender student was prevented

from returning to school dressed as and identifying

as a girl, even though the student said that coming

out as transgender earlier in the year had helped

relieve her depression. Further, according to the

report, the school did not provide accomodations

for the student’s gender identity, including use of

the school bathroom.

As school districts across the state and country are

beginning to encounter issues related to transgender

students, some districts have proactively enacted

policies. For example, in 2014, the Hazlet School

District introduced a policy giving transgender

students the right to assert their preferred gender

identity, as long as the students are consistent and

sincere with their choices and they provide notice

in writing. The superintendent of schools in the

Hazlet School District reportedly said, “we want

to make sure all of [the students] feel comfortable

and are able to access all [that] public education

has to offer.” The intent of the Hazlet policy is to

set a framework for school ofcials, students, and

parents to discuss issues like bathroom use, locker

room selection, physical education classes and other

school issues tied to gender.

More recently, we received a question from an

administrator regarding what the roommate

situation should be for an 18-year-old transgender

student on an overnight eld trip.

Predictably, the policy debate concerning

transgender issues is playing “catch-up” with the

rapidly evolving changes in social norms. At the

moment, there is little guidance being given by

the State. In fact, the only New Jersey source

of guidance on this issue has come from the

New Jersey Interscholastic Athletic Association

(“NJSIAA”), which provides that transgender

students identifying with a gender different from

the students’ birth gender “shall” be eligible

to participate in school athletics in a manner

consistent with the students’ “identied” gender if:

1. The student provides an ofcial record – new

birth certicate, driver’s license or passport

– demonstrating the legal recognition of the

student’s reassigned sex; or

2. A physician certies that the student has had

appropriate clinical treatment for transition to

the reassigned sex; or

3. A physician certies that the student is in the

process of transition to the reassigned sex.

The NJSIAA policy only offers guidance and is by no

means legally binding on a school district. However,

it does recognize that the student’s “identied”

gender should be the student’s recognized gender.

(Note – for purposes of issuing a high school

diploma, the diploma should be issued in the

student’s legal name regardless of the gender

with which the student presently identies. If the

student’s legal name is ofcially changed, the

diploma should be issued in the student’s new

ofcial legal name.)

In contrast with New Jersey’s lack of guidance on

transgender issues, the New York City Department

of Education recently adopted broad transgender

guidelines which state, among other things, that:

As a general rule, in any circumstances where

students are separated by gender in school activities

(i.e., overnight eld trips), students should be

permitted to participate in accordance with their

gender identity consistently asserted at school.

Thus, under such a guideline, in order for the

transgender student to be assigned a roommate of

the genetically opposite sex, it must be generally

known within the school population (students and

administrators alike) that the student identies

with his/her genetically opposite sex. For example,

for a female student identifying as a male to have

a male roommate on an overnight eld trip, it must

be generally known that the female consistently

identies as a male.

The New York City guidelines also address restroom

and locker room accessibility aimed “to support

transgender students while also ensuring the safety

and comfort of all students.” The guidelines provide:

The use of restrooms and locker rooms by

transgender students requires schools to consider

numerous factors, including, but not limited to:

the transgender student’s preference; protecting

student privacy; maximizing social integration of

the transgender student; minimizing stigmatization

of the student; ensuring equal opportunity to

participate; the student’s age; and protecting the

safety of the students involved.

A transgender student who expresses a need or

desire for increased privacy should be provided with

reasonable alternative arrangements. Reasonable

alternative arrangements may include the use of

a private area, or a separate changing schedule,

or use of a single stall restroom. Any alternative

arrangement should be provided in a way that

protects the student’s ability to keep his or her

transgender status condential.

A transgender student should not be required to use

a locker room or restroom that conicts with the

student’s gender identity.

None of these issues has an easy solution, but we can

be certain that school leaders will be on the frontlines

of the ever-changing gender and transgender equality

landscape. As these issues begin to unfold with some

regularity, districts should begin to craft policies

addressing transgender student issues. As with the

New York City Department of Education, New Jersey

districts should bear in mind the need for these issues

to be addressed on a case-by-case basis based on, but

not limited to, the following factors:

• The transgender student’s preference;

• protecting student privacy;

• maximizing social integration of the

transgender student;

• minimizing stigmatization of the student;

• ensuring equal opportunity to participate;

• the student’s age; and

• protecting the safety of the students involved.

Trenton Central High School’s Homecoming Queen

In October 2015, Trenton Central High School

crowned its rst transgender homecoming queen.

Student J.A. was born a male but had been

identifying as a female for about one year. J.A.’s

friends and teachers encouraged her to enter the

balloting for homecoming queen. She ended up

winning and was crowned homecoming queen at

Trenton Central High School’s football game.

After winning, J.A. said “I wanted to make a

difference, to show not only the city and world that

it’s 2015 and things are changing and progressing. I

am so happy that I won, it’s been amazing.”

After J.A.’s win, Principal Hope Grant refuted rumors

on social media and in the Trentonian newspaper

claiming the ballot was manipulated to guarantee

that J.A. win and that the teacher responsible for

overseeing the vote left the ballot box unsecured.

Principal Grant said that “[t]here were loud cheers

when thjs was announced Friday. There was cheering

from the classrooms.” Principal Grant also said that

“[w]e need to be embracing this student. As a public

institution, we have a moral and legal responsibility

to accept, embrace and be non-judgmental.”

Not everyone was accepting of J.A.’s win. The

elected homecoming king refused to “walk with

another male.” Some parents also complained

about J.A.’s win, claiming it would negatively

impact the self esteem of girls in the school. The

school district supported J.A. and Principal Grant

and kept J.A.’s victory intact.

J.A. was not the only transgender homecoming

queen in 2015. Transgender student L.P. from

Oak Park High School in Missouri was elected

homecoming queen in September 2015. In 2013,

transgender teen C.C. was crowned homecoming

queen at a California high school.

Internet - Home Use

The United States Supreme Court has ruled

that internet speech has the same high level of

constitutional protection as what is written in a

newspaper or other written media. See, Reno v. ACLU

(1997). That being said, there is a distinction between

what students may put on the Internet while at home

using their personal computers and what they may put

on the Internet while at school on a school computer.

Beussink vs. Woodland R-IV School District, 30 F.

Supp. 2d 1175 (ED Mo. 1998)

Beussink, while a junior at the Woodland High

School, created a home page, which he posted on

the internet. The information on the home page

could be accessed by other internet users. Beussink

did not use school facilities or school resources

to create the home page. It was created at his

home on his home computer. Beussink’s home

page, highly critical of the school’s administration,

contained vulgar language to convey Beussink’s

opinion regarding teachers and the principal. The

readers of the home page were invited to contact

the school principal and communicate their own

opinions regarding the high school.

Soon after Beussink established his home page,

another student accessed the home page during the

school day and showed it to a computer teacher at

the school. The computer teacher became upset

and told the high school principal what he had

read. The principal then returned to the computer

lab with the computer teacher and viewed the

home page for himself. He too was upset by what

was contained on the home page.

The principal decided to discipline Beussink because

he was upset that the home page message had been

accessed and displayed in the classroom. The decision

to discipline Beussink was made on the same day that

the home page had been accessed, but before the

principal was able to discern whether other students

had seen it.

Initially, Beussink was suspended for 5 days. Later

that same day, the principal reconsidered the 5 day

suspension and increased it to 10 days.

Did the principal’s discipline of Beussink violate

his First Amendment right of free speech?

When may a student’s speech be limited? When

there is a reasonable fear that it may disrupt the

operation of the school. However, for the fear to

be reasonable it must be quantiable, not just a

general feeling. Following the Tinker standard, the

school authorities must be able to demonstrate

that the speech in class or out of it - materially

disrupts class work or involves substantial disorder

or invasion of the rights of others Tinker at 513.

In the Beussink matter the principal acknowledged

that he decided to discipline Beussink immediately

after seeing the home page. He said that he was

upset that the message had found its way into the

school’s classrooms. He didn’t testify that he was

afraid that Beussink’s home page would disrupt or

interfere with school discipline. What motivated

him to discipline Beussink was his disapproval of the

content of the home page.

The court said that while it was sympathetic to the

necessity of instilling and maintaining discipline

and respect for teachers in high school classrooms,

as the home page was not found to have materially

and substantially interfered with school discipline,

and because there was no evidence to support a

particularized reasonable fear of such interference,

the disciplinary action imposed was in violation of

Beussink’s right of free speech.

Could the district refer to Beussink’s prior

disciplinary record to support the decision to

suspend him?

The Board contended that Beussink’s home page

at least had the potential to cause disruption in

the school because of his previous discipline record

which included at least one unrelated incident in

which he had been “violent and disrespectful to

the school librarian.” The court said that it did not

believe that Beussink’s prior unrelated improper

conduct could serve to justify the school-imposed

suspension for the entirely separate home page

incident. Whether Beussink had been a model

student or not, the fact remained that he had

a right to exercise free speech so long as it was

not disruptive of the school in general, or more

specically, disruptive of his classes.

J.S. v. Bethlehem Area School District 757 A. 2nd

412 (Pa. Cmwlth. 2000)

A high school student created a home website that

made derogatory remarks about a teacher and a

principal, saying both should be red. The site

also communicated specic threats against the

teacher, offering to pay a “hit man” to kill her. The

site contained an image of the same teacher with

her head severed. After learning of the web site the

teacher became terried, developed emotional and

physical problems and became unable to teach. The

student was expelled.

Was the student’s home web site protected by

the First Amendment?

No, because of the school disruption it caused by

making the teacher fearful for her safety resulting in

her having both physical and emotional problems.

Recent Third Circuit Cases

In J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,

650 F.3d 915, 932 (3d Cir. 2011), an eighth grader

created a Myspace page at her home, away from

the school. Using her home computer, the student

created a “ctional” Myspace page about her school

principal. The page displayed the principal’s picture

from the district website and depicted him as a sex

addict and pedophile.

The principal, obviously upset about the prole,

investigated the incident and ultimately found and

met with the student responsible for it. After the

student apologized for her actions, the principal

suspended her for 10 days. Id. at 922. The principal

took this disciplinary action because he found that

in creating the prole the student violated the

school’s disciplinary code. Id. at 921.

The student’s parents challenged the suspension.

They sued the school district in federal court,

alleging that the suspension imposed violated

their child’s free speech and due process

rights guaranteed by the First and Fourteenth

Amendments to the U.S. Constitution. Id. at 920.

After an appeal and a rehearing en banc, the

Third Circuit Court of Appeals ultimately ruled

that the school’s suspension was unconstitutional

and violated the child’s First and Fourteenth

Amendment rights. Id. at 932-33. The en banc

panel reasoned that because the Myspace page

could not be accessed in school due to the school’s

web-lter and because the prole was set to

private ensuring that only “friends” of the ctitious

account could access it, the speech “indisputably

caused no substantial disruption in school and…

could not reasonably have led school ofcials to

forecast substantial disruption in school.” Id. at

920. Accordingly, the court ruled that the school’s

disciplinary action was unconstitutional.

In a similar case, the Third Circuit ruled that a

school district lacked the authority to punish its

students for expressive conduct occurring off school

grounds, even if the school district concluded that

the conduct was lewd and offensive. In Layshock

ex rel. Layshock v. Hermitage School District, 650

F.3d 205 (3rd Cir. 2011), the Third Circuit again

dealt with the issue of punishing a public school

student for out of school conduct that portrayed his

principal in a negative light on the Myspace social

networking website.

In Layshock, a high school senior created a “parody

prole” of his principal using the picture from the

school district’s website. Id. at 207-08. Using the

principal’s picture, the student added ctional

and offensive information in this “parody prole.”

Id. at 208. “[W]ord of the prole, ‘spread like

wildre’ and soon reached most, if not all, of…[the]

student body.” Ibid. Moreover, after the student

body discovered the “parody prole”, three other

students created similar proles about the school’s

principal – each of the proles was more vulgar and

offensive than the rst. Ibid.

The school district conducted an investigation and

met with one of the suspected students. During

the meeting, the student admitted to creating the

rst Myspace page and, without any prompting,

apologized to the principal. Id. at 209. Initially, the

school took no disciplinary action. However, soon

after, the school charged the student with violating

certain provisions of the district’s disciplinary

code and scheduled an informal hearing on those

charges. Ultimately, the student was found guilty

of all charges against him and the district took

disciplinary action.

The student received a 10 day, out-of-school

suspension; placement in the school’s Alternate

Education Program for the remainder of the school

year; he was barred from all extracurricular

activities; and prevented from participating in his

graduation ceremony. Id. at 210. The student’s

parents challenged the district’s disciplinary action,

claiming that the disciplinary action violated their

child’s First Amendment rights.

The Third Circuit panel ultimately ruled that despite

the student’s use of the principal’s picture from the

district website, the student’s actions – or speech – in

creating the prole ultimately took place off school

grounds. As a result, the court said that it could not

punish the student for his off-school actions. The

court concluded that “[i]t would be an unseemly and

dangerous precedent to allow the state, in the guise

of school authorities, to reach into a child’s home and

control his/her actions there to the same extent that

it can control that child when he/she participates in

school sponsored activities.” Id. at 216. The court

ruled that because allowing the district to punish

this student for his actions would create such a

precedent, the district’s disciplinary actions violated

the student’s First Amendment rights under the

United States Constitution. Ibid. The court came to

this conclusion despite the fact that the website was

accessed within the school by many of its students.

Id. at 219. Importantly, however, the court noted that

the school district never argued that the student’s

actions caused any substantial disruption within the

school. Ibid. Had this speech substantially disrupted

and interfered with the school’s ability to advance its

educational aims, the result may have been different.

See ibid. (“[W]e have found no authority that would

support punishment for creating such a prole unless

it results in foreseeable and substantial disruption of

school.”)

Disclosure of Student Information

N.J.S.A. 18A:36-35 - Disclosure of certain student

information on Internet prohibited without

parental consent

The board of education of each school district

and the board of trustees of each charter school

that establishes an Internet web site, shall not

disclose on that web site any personally identiable

information about a student without receiving

prior written consent from the student’s parent or

guardian on a form developed by the Department of

Education. The written consent form shall contain

a statement concerning the potential dangers of

personally identiable information about individual

students on the Internet.

As used in this act, “personally identiable

information” means student names, student photos,

student addresses, student e-mail addresses, student

phone numbers, and locations and times of class trips.

Family Educational Rights and Privacy Act (FERPA)

Students’ rights to privacy are dened in the Family

Educational Rights and Privacy Act (FERPA) and the

corresponding federal regulations. FERPA allows

schools to publish or release a student’s education

record to other institutions as “directory information”

or with a parent’s written consent. Student photos are

recognized by FERPA as directory information. Before

student information is disclosed FERPA requires that

the school complete a formal procedure to ensure

parental consent. The First Amendment of the United

States Constitution also protects a student’s privacy.

Discretion should be used when publishing student

information on a district Web page. Student privacy is

violated when a school staff member posts a student’s

name, class work, or photo on a district web site

without parental consent.

Children’s Online Privacy Protection Act of 1998

(COPPA)

Under this Act, commercial websites which are

directed to, or knowingly collect information

from, children under age 13 must take steps to

obtain parental consent before collecting, using or

disclosing personal information from children.

Children’s Internet Protection Act (CIPA)

This Act requires that K-12 schools and libraries in

the United States use Internet lters and implement

other measures to protect children from harmful

online content as a condition for federal funding.

It was signed into law on December 21, 2000, and

was found to be constitutional by the United States

Supreme Court on June 23, 2003.

N.J.S.A. 18A:36-34 —Surveys - parental consent

required prior to acquisition of certain survey

information from students.

(A) Unless a school district receives prior written

informed consent from a student’s parent or legal

guardian and provides for a copy of the document

to be available for viewing at convenient locations

and time periods, the school district shall not

administer to a student any academic or non-

academic survey, assessment, analysis or evaluation

which reveals information concerning:

1. political afliations;

2. mental and psychological problems potentially

embarrassing to the student or the student’s

family;

3. sexual behavior and attitude;

4. illegal, antisocial, self-incriminating and

demeaning behavior;

5. critical appraisals of other individuals with

whom a respondent has a close family

relationship;

6. legally-recognized privileged or analogous

relationships, such as those of lawyers,

physicians, and ministers;

7. income, other than that required by law to

determine eligibility for participation in a

program or for receiving nancial assistance

under a program; or

8. social security number.

a. The school district shall request prior

written informed consent at least two

weeks prior to the administration of the

survey, assessment, analysis or evaluation.

b. A student shall not participate in any survey,

assessment, analysis or evaluation that

concerns the issues listed in subsection A of

this section unless the school district has

obtained prior written informed consent

from that student’s parent or guardian.

c. A school district that violates the provisions

of this act shall be subject to such

monetary penalties as determined by the

commissioner.

Religious Speech

Third Circuit Decision:

Walz v. Egg Harbor Township Board of Education

342 F. 3d 271 (2003)

Daniel Walz was a student in pre-kindergarten in

the spring of 1998. His school held seasonal in- class

parties several times a year. They were organized

by teachers and students’ parents. The parties

generally consisted of a parent- provided snack,

parent-sponsored exchange of small gifts, followed

by games and activities. Prior to Easter, Daniel’s

class had a seasonal party. The children’s parents

were encouraged to donate gifts to the local

parent/teacher organization, which brought the

gifts to the holiday party. This ensured that all the

kids received a gift. At this particular holiday party,

immediately before the Easter break; Daniel Walz

brought his gift directly to the class. It consisted

of pencils with the imprint “Jesus loves the little

children.” Daniel’s teacher noticed the pencils and

conscated them. When told of the incident, the

superintendent determined that the pencils should

not have been distributed to the young children

because their parents might perceive the message

as being endorsed by the school.

Six months later, the Egg Harbor Township Board

of Education adopted a policy which provided

in part that “no religious belief or non- belief

shall be promoted in the regular curriculum or in

district-sponsored courses, programs or activities,

and none shall be disparaged.” The policy stated

that religion may be acknowledged in the course

of school activities if presented “in an objective

manner and as a traditional part of the culture

and religious heritage of the particular holiday.”

The school also maintained an “unwritten policy

on student expression” which, according to the

superintendent, precluded the distribution in

class during school hours of items with political,

commercial or religious references.

After the policy was adopted, Daniel’s class

had another seasonal holiday party, this time

immediately before the Christmas break. Daniel

brought candy canes to the party to which a story

was attached. The story explained that candy

canes, shaped in the letter J, spoke to the “birth,

ministry and death of Jesus Christ.”

Daniel’s mother stated that she had been informed

that the candy canes with the story could be

distributed, but only before school, during recess,

or after school, and not during the classroom party

itself.

A year later, Daniel again brought the candy canes

with the attached religious story to a holiday party.

He was not permitted to distribute the candy canes

in class, but was permitted to distribute them in

the hallway outside of the classroom, at recess, or

after school as students were boarding buses.

Contending that his First Amendment right of

free expression and free exercise of religion were

violated because he was not permitted to distribute

the candy canes during the holiday party, Daniel,

through his mother, led suit.

Was Walz’s freedom of expression violated?

Walz, through his mother, contended that handing

out the pencils which stated “Jesus loves the little

children” was no different than if Walz had turned

to his classmate during snack time and said “Jesus

loves the little children.” The court did not agree.

“Where a student speaks to his classmates during

snack time, he does so as an individual. But absent

disruption, this is fundamentally different from a

student who controverts the rules of a structured

classroom activity with the intention of promoting an

unsolicited message. In short, Daniel Walz was not

attempting to exercise a right to personal religious

observance… His mother’s stated purpose was to

promote a religious message through the channel of

a benign classroom activity. Id. page 280.

Was the school’s restriction on how and when the

pencils and/or candy canes could be distributed

appropriate?

In the context of its classroom holiday parties,

the school’s restrictions on this expression were

designed to prevent proselytizing speech that, if

permitted, would be at cross purposes with its

educational goal and could appear to bear the

school seal of approval. Id. at page 281.

Is the age of the student a factor in the school’s

authority to restrict a student’s freedom of

expression?

In conventional elementary school activities, the

age of the students bears an important inverse

relationship to the degree and kind of control a school

may exercise: As a general matter, the younger the

students, the more control a school may exercise.

Moment of Silence

May v. Cooperman, 780 F.2d 240 (3d. Cir. 1985)

The court declared a state statute allowing

for a moment of silence in public schools to be

unconstitutional. The statute, N.J.S.A. 18A:36-4,

provided as follows:

Principals and teachers in each public elementary

and secondary school of each school district in

this state shall permit students to observe a one-

minute period of silence to be used solely at the

discretion of the individual student, before the

opening exercises of each school day for a quiet

and private contemplation or introspection.

The test used to determine the constitutionality

of this provision was whether the law had a (1)

secular legislative purpose, (2) whether its principal

or primary effect neither advanced nor inhibited

religion, and (3) whether it fostered an excessive

government entanglement with religion.

The court found that the statute did not have a

bona de secular purpose; that in fact it had a

religious purpose. It also found that the law both

advanced and inhibited religion. Lastly, the court

concluded that the law would promote divisiveness

among and between religious groups. A required

moment of silence would put children and parents

who believe in prayer in the public schools against

children and parents who do not. The divisiveness

that the law would in gender would foster excessive

government entanglement.

NOTE: Despite the fact that the Third Circuit

Court of Appeals struck down N.J.S.A. 18A:36-4 as

being unconstitutional, the statute has never been

amended to reect the Court’s decision.

Religious Speech - Graduation

Exercises

Lee v. Weisman, 505 U.S. 577 (1992)

For many years, principals of public middle and

high schools in Providence, Rhode Island, were

permitted to invite clergy to give invocations

and benedictions at their schools’ graduation

ceremonies. A middle school principal invited a

Rabbi to offer the invocation and benediction at

the middle school graduation in June 1989. The

invocation read as follows:

God of the free, home of the brave:

For the legacy of America where diversity is

celebrated and the rights of minorities are

protected we thank you. May these young men

and women grow up to enrich it.

For the liberty of America, we thank you. May

these new graduates grow up to guard it.

For the political process of America in which all its

citizens may participate, for its court system where

all may see justice, we thank you. May those we

honor this morning always turn to it in trust.

For the destiny of America we thank you. May the

graduates of Nathan Bishop Middle School so live

that might help to share it. May our aspirations

for country and for these young people, who are

our hope for the future, be richly fullled. Amen.

The benediction read as follows:

Oh God, we are grateful to you for having

endowed us with the capacity for learning, which

we have celebrated on this joyous commencement.

Happy families give thanks for seeing their children

achieve an important milestone. Send your blessings

upon the teachers and administrators who help

prepare them.

The graduates now need strength and guidance for

the future, help them to understand that we are

not complete with academic knowledge alone. We

must each strive to fulll what you require of us

all: to do justly, to love mercy, to walk humbly.

We give thanks to you, Lord, for keeping us

alive, sustaining us and allowing us to reach this

special, happy occasion. Amen.

Did a member of the clergy delivering a benediction

and invocation at a public school graduation violate

the Establishment Clause of the First Amendment?

The Court concluded that it did because of the

direct role played by the principal in inviting the

clergy member, the invocation and benediction

was given at a public, state sponsored event, and

student attendance while not formally required,

was nonetheless compelled by peer pressure.

The decision focused on the following facts:

1. The principal decided that an invocation and

benediction should be given. The principal

as the representative of a public school,

essentially acted on behalf of the “State” to

decree that the prayers must occur.

2. The principal chose the religious participant,

the rabbi, and that choice also attributable to

the state.

3. The principal also gave the rabbi a copy of the

“guidelines for civic occasions” and advised

him that his prayers should be nonsectarian.

Through these means the principal directed

and controlled the content of the prayers. As

a result, the Court found that the invocation

and benediction given at this middle

school graduation ceremony violated the

Establishment Clause of the First Amendment.

What facts dominated the court’s decision?

1. A state ofcial — the principal — directed the

performance of a formal religious exercise —

the benediction and the invocation.

2. The religious exercise took place at a

graduation ceremony for a pubic secondary

school — a state-sponsored function.

3. With the invocation and benediction coming at

the invitation and direction of the principal,

the public school graduation became a

state- sponsored religious activity to which

attendance and participation, while not a

condition for receipt of a diploma, was, in a

fair and real sense, obligatory.

Religious Speech - Prayer at Public

School Events

United States Supreme Court Decision:

Santa Fe Independent School District v. Doe, 530

U.S. 290 (2000)

Prior to 1995, the Santa Fe high school student who

occupied the school’s elective ofce of student

council chaplain delivered a prayer over the pubic

address system before each varsity football game

for the entire season. This was challenged in the

district court as a violation of the Establishment

Clause of the First Amendment. The school district

then adopted a different policy that permitted, but

did not require, prayer initiated and led by students

at all home games. The decision whether to deliver a

student initiated prayer was made by a majority vote

of the entire student body, followed by a choice,

also by majority vote, of the speaker - student to

give the prayer. Though the words to be used by

the speaker were not determined by the election,

the school policy mandated that the “statement

or invocation” be “consistent with the goals and

purposes of the policy,” which are “to solemnize the

event, to promote good sportsmanship and student

safety, and to establish the appropriate environment

for the competition. Id. at page 306.

Was the invocation student led or school sponsored?

School sponsored, because the school, by its policy,

involved itself in the selection of the speaker. It

promoted the election. By the terms of its policy,

“it invited and encouraged a religious message.”

According to the policy the purpose of the message

was to “solemnize the event…to promote good

sportsmanship” and “establish the appropriate

environment for competition.” The court said that

a religious message is the most obvious method of

solemnizing an event. “The only type of message…

expressly endorsed… is an invocation - a term that

primarily describes an appeal for divine assistance.

In fact, as used in the past at Santa Fe High School,

an invocation has always entailed a focused

religious message. Thus, the express purposes of

the policy encourage the selection of a religious

message, and that is precisely how the students

understand the policy. Id. at 306 -307.

Was attendance at a football game any less

“voluntary” than attendance at a graduation

ceremony?

No, because the same peer pressure that compels

a student to attend graduation exercises affects

student attendance at football games. “High school

football games are traditional gatherings of a school

community; they bring together students and faculty

as well as friends and family from years present and

past to root for a common cause. Undoubtedly, the

games are not as important to some students, and

they voluntarily choose not to attend. For many

others, however, the choice between attending

these games and avoiding personally offensive

religious rituals is in no practical sense an easy one.

The Constitution... demands that the school... not

force this difcult choice upon students for it is a

tenet of the First Amendment that the State cannot

require one of its citizens to forfeit his or her rights

in benets as a price of resisting conformance to

State sponsored religious practice... Even if we regard

every high school student’s decision to attend a home

football game is purely voluntary, we are nevertheless

persuaded that the delivery of a pre- game prayer

has the improper effect of coercing those present to

participate in an act of religious worship.” Id. at 312.

School Clubs - Equal Access

Equal Access Act - 20 U.S.C. Sec. 4071(a)

It shall be unlawful for any public secondary school

which receives federal nancial assistance and

which has a limited open forum to deny equal

access or a fair opportunity to, or discriminate

against, any students who wish to conduct a

meeting within that limited open forum on the

basis of the religious, political, philosophical, or

other content of the speech at such meetings.”

What is a limited open forum?

Section 4071(b)

A limited open forum exists whenever a public

secondary school grants an offering to or

opportunity for one or more non-curriculum related

student groups to meet on school premises during

non-instructional time.

Under the Equal Access Act what is a meeting?

Section 4072(3)

A meeting is dened to include those activities

of student groups, which are permitted under a

school’s limited open forum and are not directly

related to the school curriculum.

What is non-instructional time?

Section 4072(4)

Time set aside by the school before actual class

instruction begins or after actual classroom

instruction ends.

When are the obligations of the Equal Access Act

triggered?

Even if a public secondary school allowed only one

non-curriculum related student group to meet, the

Act’s obligations are triggered and the school may

not deny other clubs, on the basis of the content

of their speech, equal access to meet on school

premises during non-instructional time.

When is a school deemed to have offered a fair

opportunity to students who wish to conduct a

meeting within its limited open forum?

Section 4071(c) (1), (2), (4), and (5).

When the school uniformly provides that the

meetings are voluntary and student initiated; are

not sponsored by the school, the government or

its agents or employees; do not materially and

substantially interfere with the orderly conduct of

educational activities within the school; and are

not directed, controlled, conducted, or regularly

attended by non-school persons.

What does “sponsorship” entail?

Sponsorship is dened to mean the act of promoting,

leading or participating in a meeting. The assignment

of a teacher, administrator or other school employee

to a meeting for custodial purposes does not

constitute sponsorship of the meeting.

When can school employees or agents attend a

club meeting whose content is religious?

Section 4071(c)(3)

Employees or agents of a school or government

entity may attend only in a non-participatory

capacity.

How is a school constrained from assigning one of

its agents or employees to attend a student club

meeting whose content is religious?

Section 4071(d)(1), (2) and (4)

A State may not inuence the form of any religious

activity, require any person to participate in such

activity or compel any school agent or employee to

attend the meeting if the content of the speech of

the meeting is contrary to the person’s beliefs.

What constitutes a “non-curriculum related

student group?”

A non-curriculum related student group does not

directly relate to the body of courses offered by

the school. A student group directly relates to a

school’s curriculum if the subject matter of the

group is actually taught, or will soon be taught, in

a regularly offered course; if the subject matter

of the group concerns the body of courses as a

whole; if participation in the group is required

for a particular course; or if participation in a

group results in academic credit. This would

include a French club, which directly relates to

the curriculum or a school’s student government

that generally relates directly to curriculum, or

a school band or orchestra if required for band

or orchestra classes. On the other hand, unless a

school can show that groups such as a chess club,

a stamp collecting club, a community service club

falls within a description of groups that directly

relate to the curriculum, such groups may be

considered “non-curriculum related school groups”

for purposes of the act.

Are there any exceptions to access under the

Equal Access Act?

Yes. Exceptions to access may be made for groups

that “materially and substantially interfere with

the orderly conduct of educational activities within

the school.” Additionally, a school can technically

“opt out” of the Act by prohibiting all non-

curriculum clubs.

What effect does the existence of non-

curriculum related groups have?

The existence of such groups creates a limited open

forum under the Act and prohibit the school from

denying equal access to any other student group on

the basis of the content of the group’s speech.

Board of Ed. of Westside Community Schools v.

Mergens, 496 U.S. 226 (1990)

Westside High School, a public secondary school

that received federal nancial assistance,

permitted its students to join on a voluntary basis,

a number of recognized groups and clubs, all of

which met after school hours on school premises.

Citing the Establishment Clause of the First

Amendment and school board policy requiring clubs

to have faculty sponsorship, school ofcials denied

the request of Bridget Mergens for permission to

form a Christian club that would have had the

same privileges and met on the same terms and

conditions as other Westside student groups, except

that it would not have had a faculty sponsor. There

was no written school board policy concerning the

formation of student clubs. Rather, students wishing

to form a club presented their request to a school

ofcial who determined whether the proposed clubs

goals and objectives were consistent with school

board policies and with the school district’s mission

and goals that expressed the district’s commitment

to teaching academic, physical, civic and personal

skills and values.

The clubs that existed at Westside Community

Schools

Chess club, sub-surfers club for students interested

in scuba diving, photography club, national honors

society, welcome to Westside club (a club to

introduce new students to the school), future

business leaders of America, student advisory board

(student government).

What effect if all of these clubs were related to

the curriculum?

The school would not have a limited open forum.

What affect if one or more of these clubs were

not curriculum-related?

A limited open forum would exist requiring the

school to give the same opportunity to any other

club, including clubs whose content is religious.

Does this have the effect of advancing religion?

Plaintiffs in the Westside Community Schools

contended that an objective secondary school

student would perceive ofcial school support for

such a religious club because it would be held under

“school aegis, and because the State’s compulsory

attendance laws bring the students together (and

thereby provide a ready-audience for student

evangelists)” Id. at 249.

What was the court’s response?

The Court said that there was a crucial difference

between government speech endorsing religion,

which the Establishment Clause forbids, and private

speech endorsing religion, which the Free Speech

and Free Exercise Clauses protect. The Court said

that it believed that secondary school students

were mature enough and were likely to understand

that if a school does not endorse or support student

speech that it merely permits to take place on the

premises on a non- discriminatory basis. Id. at 250.

What is the role of a school employee or agent

who is assigned to attend such a meeting and

when may such a meeting take place?

The Equal Access Act expressly limits participation

by school ofcials at meetings of student religious

groups. A teacher or agent assigned is not to

actively participate in the meeting. Such meetings

must be held during non-instructional time.

What is a school’s obligation when a limited open

forum exists?

Under the Act, a school with a limited open forum

may not lawfully deny access to religious clubs, as it

may not deny access to a Young Democrat’s Club, or

a philosophy club devoted to the study of Nietzsche.

To the extent that a religious club is merely one of

many different student initiated voluntary clubs,

students should perceive no message of government

endorsement of religion. Id. at 252.

Pope v. East Brunswick Board of Ed., 12 F. 3d

1244 (1993)

The plaintiff and other students met informally in

the cafeteria before the start of Wednesday classes.

The group of students was known within the school

as the bible club. The East Brunswick Board of

Education did not give the bible club any ofcial

recognition. The club was precluded from using the

public address system, bulletin boards and other

club facilities commonly used by other groups. In

1988 the bible club sought ofcial recognition from

the Board. It was denied. Subsequently, the Board

adopted a policy requiring that all clubs and other

extra-curricular activities were to be related to

the curriculum, or to have a faculty advisor who

supervised the meetings and were to be approved

by the board before being permitted to function.

Did East Brunswick create a limited open forum

by allowing at least one non-curriculum related

student group?

Yes. It allowed the Key Club to meet on school

premises which the court said was insufciently

related to the high school curriculum. East

Brunswick had sought to relate the Key Club to

portions of the history course taught at the high

school. Quoting from the Westside Community

Schools matter, the court said that a curriculum

related student group is one that has “more than

just a tangential or attenuated relationship to

courses offered by the school.” Id. at 1253.

Donovan v. Punxsutawney Area Sch. Bd., 341 F.3d

234 (3d Cir. 2003)

This case decided by the Third Circuit Court of

Appeals involved the request of a high school senior

to convene a Bible club during her school’s morning

“activity period.” During the “activity period”,

other non-curriculum related student groups met.

Litigation ensued after the student was denied

the opportunity to convene the Bible club during

the “activity period.” The Third Circuit held that

a limited open forum existed for the purpose of

the Equal Access Act since the school permitted

meetings of other non-curriculum groups during the

“activity period.”

First Amendment Rights of

Elementary School Students

In K.A. v. Pocono Mountain School District (2013),

the Third Circuit was called upon to address the

1st Amendment rights of a fth grade elementary

school student. Student K.A. brought iers to school

and sought to distribute them to students. The

iers advertised her church’s upcoming Christmas

party. Other students had brought iers to school

in the past and distributed them to students. Those

iers advertised non-religious items. K.A. was

told that the Christmas event iers could not be

distributed at school.

A district court found that the policies cited by the

Pocono Mountain School District in silencing K.A.’s

speech were unconstitutional. The school district

appealed that decision to the Court of Appeals

(Third Circuit), which upheld the lower court’s

ruling and held that 1) elementary students do have

rights of free speech, and 2) district ofcials had no

right to silence K.A.’s speech simply because they

disagreed with it.