Last Thursday, the American Constitution Society for Law and Policy, sponsored a discussion at Quinnipiac University School of Law concerning “The State of Student Free Speech”, particularly as it relates to the Avery Doninger case. I grew up in Williamstown, MA, and frequently would go to events at Williams College, so it was great to see Avery at the discussion, following the topic at least as well as many of the law school students there.

The discussion started off with a welcome from Brad Saxton, Dean of Quinnipiac Law. This was followed by a great exposition of the issues by Professor Emeritus Martin B. Margulies. Prof. Margulies has followed the case closely, having filed an amicus brief in the initial hearing as part of the Connecticut ACLU, and for the hearing before the Second Circuit, as a member of the American Constitution Society.

He started off by saying he would not be speaking about the rights of Quinnipiac students. Quinnipiac is a private school, and as such, isn’t obliged to afford students the same rights that our government is. He went on to say that he would not be speaking about students at public universities, where students, in theory, are treated as adults. The issue of the discussion was for high school students in public schools. He did add, parenthetically that the discussion of elementary was a whole different issue, given that the courts are divided on whether or not freedom of speech should apply in elementary schools.

He started off by framing the question between two theories of education. The first is the self-governance theory of education, that the goal of public schools is to encourage students to think and speak independently. It is the theory that I am a big supporter of. The other theory is of a values inculcation model, which has nothing to do with fostering independence. It is about communicating community values. The advantages and disadvantages of these two models, as it relates to creating good workers, innovators and/or consumers is one that could be explored in several different blog posts, so for the time being, I will set it aside.

Another part of the discussion which needs exploring, but for the sake of the discussion was set aside, was the role of parental rights. Parental rights are still protected and are a very important part of the mix.

With this as a framework, Prof. Margulies went on to explore key decisions concerning students’ freedom of speech. The starting point is Tinker. Tinker v. Des Moines Independent Community School District went to the Supreme Court in 1969 when students were suspended for wearing armbands protesting the Vietnam War. Prof. Margulies described this as a classic exposition of the self-governance theory of education. The courts held that the wearing of armbands in school was protected speech, providing it did not produce material and substantial disruptions of the school’s operations.

He then went on to describe something that law students should understand very well, but was a new idea to me, the difference between what a judge says, and what a judge holds. A ruling says what a ruling says, but its impact on other decisions may vary, depending on what the judge did not rule on. As an example, Tinker arguably leaves open questions about ‘non-political speech’, dress codes, and probably other issues.

With that, he suggested there are three clear exceptions to Tinker.

In Fraser v Bethel School District, the Supreme Courts ruled that students’ freedom of speech did not extend so far as to permit lewd speech on the school property. This is clearly based on the values inculcation model of education. Prof. Margulies did note that this pertained specifically to students, citing the case Cohen v. California, where a man wearing a jacket with the words “Fuck the Draft” on it. He was arrested for disturbing the peace, but the Supreme Court overruled the decision. As Prof. Margulies noted, the First Amendment does not impose civility.

A second exception is that students’ freedom of speech does not apply to school sponsored speech, such as school newspapers or school plays. The final exception mentioned was from Morse v. Fredrick. This is the famous “BONG HiTS 4 JESUS” case. Again, it rested on the values inculcation model of education.

It was interesting to hear some of Prof. Margulies observations here. He suggested that adults may advocate for illegal activity, providing they do not incite people to break a lot. So, simply quoting Bob Dylan saying, “Everybody must get stoned,” is legal, providing it doesn’t actually incite people to light up.

With that, Prof. Margulies offered a few other observations. First, he was differentiating between speech and conduct. Threats, while they use the mechanisms of language are not considered speech, they are considered conduct. Armbands, on the other hand, while they do not use the mechanisms of language are considered speech.

He noted that you don’t win cases by speaking publicly, so he did not go into all the details of the case. He did observe that Kravitz seemed to believe that the Internet changes the issue of locality. That is one of my biggest concerns. I think that to say that a new mode of communications opens up redefinitions of locality is especially dangerous.

Perhaps most significantly, and this was a new idea for me, Kravitz’ ruling takes a bright lined categorical test, and changes it into ad hoc balancing tests, and when it comes to balancing tests, he observed that he doesn't trust anyone to make these sorts of balances, and noted that he was not a judge.

Professor of Education Anne Littlefield, who is a partner at Shipman and Goodwin, dealing with legal issues for public schools presented the other side of the discussion. She noted that the ruling makes it more difficult to advise clients, since the bright line categories are getting blurred by ad hoc balancing.

She also noted the difference between conduct and speech and brought up the issue of how the Connecticut Constitution played in this case. No one seemed know of cases where students rights under the Connecticut Constitution were tested in court.

She did note that she did not consider the revocation privileges ‘discipline’. It seemed as if this were some technical legal parsing of the word ‘discipline’ in Connecticut to mean detention, suspension, or expulsion, and nothing else. One man took her to task on this and she dug in her heals. It would seem as if, based on her parsing of the word, waterboarding would not be considered discipline. It was about this point where Andy Thibault, who was sitting next to me observed, "I'm starting to hate all school board lawyers".

Yet one of the most interesting comments of the evening was about delving into underlying reasons for an action as opposed to the post hoc reasons that administrators present afterwards. The real reason the principal in the Morse case suspended the student was not because it contracted the values inculcation of the school, but because it made the principal look bad. Many have suggested this is the underlying motivation of the administration in Region 10, as well as in the West Morton case in Illinois.

Prof. Margulies expressed a wish that courts would do more in requiring schools to disclose their true rationales.

I will note that I am not a lawyer. I’m not even a law school student. However, I found the whole evening fascinating and it helped me better understand our freedoms that are so important. To return to my underlying theme, I want to congratulate the American Constitution Society for arranging such a wonderful program and finding the teachable moments that the administration of the Region 10 schools have yet to find.