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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

At the end of each year, the English Department at the High School publishes “The Light,” an anthology of poetry written by our students. Teachers can nominate particularly good student work, and students can submit work themselves for publication. A small group of teachers reads the submissions and chooses the “best” poetry for inclusion in the anthology. I say “best” in quotations because one of the poems that was included has caused a firestorm on social media. I am no tender flower, but the poem in question made even me uneasy in its quite graphic depiction of a sexual encounter between two students. Now, the Internet is blowing up with parental and community outrage that we would have published this poem in a school anthology.

I talked to the members of the selection committee, and they sheepishly agreed that they wondered whether the poem was appropriate for a school publication. After some debate, however, they agreed that the poem has substantial artistic merit, and they felt that they could not censor this student’s poem because the student has free speech rights.

I know that the United States Supreme Court has provided some guidelines for addressing student speech in its decisions in Hazelwood School District v. Kuhlmeier (1988) and Bethel School District No. 403 v. Fraser (1986). However, I don’t know where we can draw the line in telling a student that her poem won’t be included in the anthology despite, in the eyes of some, its artistic merit. Help!

Thank you,
What’s Art Anyway


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