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#FirstAmendment #YouSaidWhat? Free Speech and Matters of Public Concern

by Dean Micknal

I don’t know about you, but lately it feels like some new hot button issue is hitting the airwaves on a daily, if not hourly, basis.  It also appears that many people, including those who have previously abided by the “never discuss religion or politics in public” rule, are feeling compelled to express their opinions on these issues.  The varying degrees of civility being employed, potential depletion of our nation’s hashtag supply, and the fact that some (myself included) find this heightened level of public discourse emotionally draining does not diminish the fundamental importance the right to free speech plays in our society.  Understanding how and when to respond to incidents in which a district employee or student is exercising this right is essential to avoiding a claim that the District has infringed upon the individual’s First Amendment rights.

As an initial matter, it is important to recognize that the U.S. Supreme Court has long held that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, these rights are not absolute.  Some categories of speech are simply not protected by the First Amendment.  For example, speech defined by a court as obscene, defamatory, “fighting words”, or “true threats” of violence is not protected and may be prohibited without violating the First Amendment.  That said, defining these categories is not always straightforward.  If you have any doubt as to whether an incident really involves an unprotected category of speech, please be sure to review it with legal counsel before taking action.  This is also a great way to make your school attorney feel uncomfortable at having to recite George Carlin’s “Seven Dirty Words” routine.

What about speech that doesn’t fit into one of the identified categories of non-protected speech? The short answer is “it depends.”  A summary of the longer answer is as follows…

If the speaker is a district employee, the speech would need to be subjected to a legal analysis known as the Garcetti-Pickering Balancing Test.  Entire law review articles have been written on the nuances of this analysis, but the basic structure involves three questions.

1.  In what role is the employee speaking?

a.  If the employee is speaking pursuant to his or her official duties, the speech is not protected and may be restricted.

b.  If the employee is speaking as a private citizen, the speech might be protected.

2.  Is the employee speaking on a matter of public concern?

a.  If “no”, the speech is not protected and may be restricted.

b.  If “yes”, the speech might be protected.

3.  Does the district’s interest “in promoting the efficiency of the public services it performs through its employees” outweigh the employee’s interests in commenting, as a citizen, upon the matter of public concern?

a.  If “no”, the speech is protected.

b.  If “yes”, the speech may be restricted.

If the speaker is a student, the analysis typically follows the jurisprudence developed in one or more of the following lines of cases:

  1. Tinker v. Des Moines ISD—allowing restrictions to speech when school officials can reasonably forecast that the speech would materially and substantially interfere with the work of the school or infringe the rights of others;
  2. Bethel School District v. Fraser—allowing schools to regulate offensively lewd and indecent speech in the school setting;
  3. Hazelwood School District v. Kuhlmeier—allowing restriction of speech that is attributable to a school-sponsored expressive activity that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school; and
  4. Morse v. Frederick—allowing restrictions to speech advocating illegal drug use or otherwise poses grave and unique threats to the physical safety of students.

The polarizing and emotionally charged nature of current events means that there is an increased likelihood that an employee or student may express an opinion that is unpopular or even offensive to some members of the community.  When this occurs, it is essential to avoid knee-jerk reactions based on disapproval with the speaker’s viewpoint.   Any First Amendment claim is likely to be highly fact-dependent and determining the speaker’s status under the law requires careful consideration to identify and then apply the appropriate analysis.  If you have any concerns as to whether an incident involves protected speech, the attorneys at Leasor Crass are ready, willing and able to help.

Title IX Protects Transgender Students

by Melissa Mozingo

by Melissa Mozingo

According to federal guidance released Friday in a “Dear Colleague Letter,” all school districts must allow students to use restrooms and locker rooms “consistent with their gender identities.”  The joint letter from the Departments of Education and Justice sets out guidelines to “ensure that transgender students enjoy a supportive and nondiscriminatory school environment.”

The Departments maintain that requiring transgender students to use facilities that are inconsistent with their gender identities violates Title IX, the 1972 law that prohibits discrimination based on sex. Opponents of this sharply contested interpretation argue that Title IX’s protections are limited to discrimination that is based on biological sex, and do not extend to issues related to gender identity or transgender status.

Violations may have serious implications for districts that fail to ensure nondiscrimination on the basis of sex, including equal access to educational programs and activities, even in circumstances in which other students, parents, or community members raise an objection.

This includes claims of sexual harassment or violence about which a school knew or reasonably should have known.  U.S. Dep’t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, (Apr. 29, 2014), available here.   Additionally, private court actions for individual damages may be brought under Title IX for known acts of harassment to which a school district is found to be deliberately indifferent.  Davis v. Monroe Cnty. Bd. Of Educ., 526 U.S. 629 (1999).

A separate best-practices document suggests ways to accommodate transgender students, such as allowing them to use alternate facilities, installing curtains for added privacy, or adjusting schedules to allow them to change when no one else is using the locker room.

While the guidance does not have the force of law, it does put public schools on notice as to how the Department of Education intends to enforce Title IX.  Districts should be aware that they are subject to an investigation and possible sanctions by the OCR for complaints related to gender-based discrimination.  Further, because Title IX is directly tied to federal education funding, the guidance carries an implied threat of loss of funds for non-compliance.

If you have any additional questions about the implications of this guidance, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

Straight Outta NOLA! The Fifth Circuit Rules on the Constitutionality of a Student’s Rap Song

by Joe Tanguma

by Joe Tanguma

The entire Fifth Circuit recently reversed an earlier panel decision and issued a 13-3 ruling on whether disciplining a student for off-campus conduct that occurred away from school, outside of any school functions and did not involve any school resources would violate his First Amendment free speech rights.

The case

The student, Taylor Bell, posted a rap recording against two high school teachers/coaches that contained threatening language against them, both on his public Facebook account and YouTube. Bell identified the two individuals by name, alleged misconduct by the coaches against female students and described the violent acts that they would suffer as a result. The rap lyrics directed to the coaches included, “betta watch ya back,” “I’m gonna hit you with my rueger,” “going to get a pistol down your mouth,” and “middle fingers up if you want to cap that n****.” When questioned by school officials, Bell admitted posting it publicly on Facebook and YouTube because he knew that people would listen to it and that it would be heard by many students. Following a disciplinary hearing, in which Bell was represented by an attorney, the school placed Bell in an alternative educational program until the end of the grading period, which was about six weeks. Bell sued under the First Amendment, and here we are today.

The Court began by stating that students do not forfeit their First Amendment rights, but they are not absolute and must be tempered in the school context. The Fifth Circuit ruled that the substantial disruption test it employs in determining the regulation of student free speech also applies for off-campus conduct. The substantial disruption test does not require proof of an actual disruption at school, but instead looks at whether a substantial disruption at school could reasonably be forecast as a result of the speech. If so, the speech could be regulated through discipline. The Court did not delve into whether the two teachers were guilty of the alleged misconduct that Bell claimed motivated him to get the matter into the public for other students to see. Instead, the Court ruled against Bell, holding that a school official reasonably could find Bell’s rap recording threatened, harassed, and intimidated the two teachers. In arriving at this ruling, the Fifth Circuit stated: “Our holding concerns the paramount need for school officials to be able to react quickly and efficiently to protect students and faculty from threats, intimidation, and harassment intentionally directed at the school community.”

What does this mean as a practical matter?

Schools have been struggling with students’ misuse of social media against other students and employees outside of the school setting for many years now. The Fifth Circuit recognized the reality that social media has no boundaries—what a student does outside of the school electronically through social media inevitably will make its way through the school doors, in some form or fashion. This case is a victory for school districts and confirms that substantial disruptions that can be reasonably forecasted by a student’s off-campus speech can be addressed by the school.

However, this is not a blank check for blanket disciplining any off-campus speech by a student. The Fifth Circuit’s lengthy and nuanced analysis and ruling is tied to the facts of this specific case, but it still provides excellent guidance as we move forward on this issue.

What steps should we take when dealing with a student’s off-campus use of social media?

The Bell case illustrates the importance of an investigation into these kind of matters including documentation not only any actual or anticipated disruption caused at the school, but also interviews with the student involved and others to flesh out whether there was any intent to direct the speech towards the school environment.

In interviewing students involved in off-campus speech, discuss with them their motives for the speech, and obtain signed handwritten statements having them commit to their explanation and response.

As part of your review process, find out: Where was the speech posted? Did the speech involve school events? Was it in a public or private setting? How was it disseminated? Who received it and what did they do with it? Were students or parents bringing this to the attention of the school? Was the speech discussed in classes or cause interruptions of instruction? Did students or other individuals show negative responses to the speech (for example, not coming to school/reporting to work)? What was the level of awareness amongst the school of the speech and what was the overall impact?

Look into and document the responses and reactions from the intended targets: Did they know about the speech directed towards them? Did it create an adverse reaction on their part? Were they able to continue to come to school and function normally?

Ask yourself whether a reasonable person would find the off-campus speech harassing, intimidating or threatening to another?

Document and retain your investigation notes as well as any calls to the school, media publicity, or other outside interferences with normal school operations that may occur.

Understand that the First Amendment does not prohibit you from taking non-disciplinary steps outside of discipline in these kind of cases. To name just a few, you can also consider: conferences with the parents, daily or periodic sit-downs with the student, counseling if necessary, changes in the student’s class schedule and campus assignment, assigning additional monitors before and after school and during transition time to both the student perpetrator and victims, revoking the student’s ability to use computers at school, etc.

The Fifth Circuit decision here is 102 pages long and is rich with detail and nuance. The next time you are confronted with an off-campus conduct issue that you believe merits investigation and possible discipline, you should consider a legal consultation to assist with your roadmap of the investigation and response and to get an opinion on whether discipline will likely pass muster under the Fifth Circuit’s standards as announced in this case.

Finally, stay tuned! This is a significant decision in favor of school districts and will likely be appealed to the United States Supreme Court for review. Several other federal courts across the nation have issued rulings on these matters, some in favor of the student, some in favor of the school. The uncertainty created by different rulings from various courts may prove to make this case attractive for Supreme Court review and final guidance.