Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
I am the advisor for our school newspaper and the student editor-in-chief is a pain in the a** . . . oops, I mean an impressive young man. When I tell him to do something, he takes it as an opening proposal in a negotiation and he makes a counterproposal. He never takes no for an answer and I have my hands full just trying to keep him under control.
His latest idea is to drum up interest in the student newspaper by having a contest in which students will vote for teachers in various categories, including toughest grader, easiest grader, most rigorous, most easily distracted, most likely to have been a hippie, and even hottest teacher (with both male and female categories). I see no end of trouble in letting him run this contest (though I can’t argue with his point that it would drum up interest in the student newspaper); and, I have unequivocally told him that the student newspaper will not run such a contest, period. But now he is going all “lawyer” on me and is even quoting Alexander Hamilton and the Federalist Papers on “liberty of the press.” Indeed, in our last conversation, he told me that it would be a shame if he and his fellow editors had to sue the school district to vindicate their free press right to publish the contest and its results.
Please tell me that I don’t have to let this young firebrand torch the faculty with his proposed contest!
Happy News Please
I am sure that you are looking forward to the graduation of this young William Randolph Hearst. In the meantime, I have some happy news indeed.
As you know, students have significant rights of free speech in school, and Legal Mailbag’s favorite case of all time is Tinker v. Des Moines Independent School District (1969), where the United States Supreme Court famously announced that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Under Tinker, school officials must tolerate student speech unless they can reasonably forecast that the speech will cause substantial disruption to or material interference with the educational process or will violate the rights of others. However, over the intervening years, the Court has provided us with three exceptions to the Tinker rule, including that school officials may regulate vulgarity or speech that advocates the illegal use of drugs without having to predict substantial disruption or material interference with the educational process.
In addition to those rulings, which occurred in 1986 and 2007 respectively, the United States Supreme Court ruled in 1988 that student newspapers are subject to a special rule. Given that speech in the school newspaper (or other school-sponsored activities) carries with it the imprimatur (stamp of approval) of the school district, the Court ruled that school officials have significant discretion in regulating such speech. Specifically, school officials need not predict substantial disruption or material interference with the educational process in such cases. Rather, they must simply articulate a legitimate pedagogical justification for the restriction on school-sponsored speech. Decisions based on partisan politics, of course, are not permitted, but any reasonable basis for restricting student speech in a school-sponsored activity should pass muster.
Here, you can easily articulate educational concerns with the proposed contest. A school-sponsored contest that identifies some teachers (accurately or not) as hard graders or easy graders could certainly complicate the process of assigning students to particular teachers. And identifying one or more teachers as “hot” is inconsistent with maintaining appropriate teacher/student boundaries. In short, tell William Randolph to drop the contest. Now.