Schools Trample On First Amendment

by Hans Bader on February 13, 2013

in Legal, Personal Liberty, Politics as Usual, Zeitgeist

Schools like Tarrant County College have banned “empty holster” protests in favor of gun rights, which administrators perceive as somehow threatening. Never mind that such symbolic expression is protected by Supreme Court rulings like Tinker v. Des Moines Independent Community School District (1969), as the civil-liberties group Foundation for Individual Rights in Education notes. Speech cannot be banned simply by labeling it as violence: for example, in Bauer v. Sampson, a federal appeals court ruled that a campus newspaper’s depiction of a college official’s imaginary death was protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.” Yet, a San Francisco high school senior was suspended after she wrote a poem about the Sandy Hook massacre. “I know why he pulled the trigger,” wrote Courtni Webb, 17, in a notebook.  (In arguing that the poem was somehow “threatening,” the school district ignored an earlier California Supreme Court ruling that rejected the prosecution of a minor over a dark poem that had violent imagery. See In re George T. (2004)). Earlier, the Chandler Unified School District suspended a 13-year old boy just for doodling a gun.

In the aftermath of the past school shootings like Columbine, hysteria among school officials resulted in blatant violations of the First Amendment, and “draconian punishments of students under ‘zero tolerance” policies,” as I noted in The New York Times:

An 11-year-old boy was taken out of his Oldsmar, Fla., elementary school in handcuffs on May 9 for making drawings of weapons. A 14-year-old girl in Harrisburg, Pa., was strip-searched and suspended for two weeks for saying, during a classroom discussion of the Columbine High School massacre, that she could understand how ostracized students might turn homicidal. It is hard to know what is worse about these cases, the school officials’ inability to distinguish between fantasy and reality, or prosecutors’ contempt for the First Amendment.

In the progressive bastion of Montgomery County, Maryland, “a 6-year-old Montgomery County student who was suspended last month for pointing his finger and saying ‘pow.’” As the boy’s attorney, Robin Ficker noted, “That just shows a certain hysteria with the school administration,” Ficker said Tuesday. “What is the point? To say that you don’t like guns, you don’t like the Second Amendment?” In nearby Alexandria, Virginia, an elementary school student was arrested for bringing a toy gun to school, even though he “did not point it at anyone.” “School officials said they learned about the incident Monday evening and immediately started investigating. Alexandria police spoke to school administrators Tuesday morning before the boy got to school. When the boy arrived, authorities found the toy in his backpack. He was taken into custody, transported to a juvenile detention center for booking and then released to his parents. . . Superintendent Morton Sherman said further action is being considered, including expulsion.” This seems like an excessive penalty for violating school rules. Not every violation of school rules should lead to an arrest, or even an expulsion.

In addition to trying to restrict speech like empty holster protests and gun drawings, government officials are also equating constitutionally protected speech with violence, through broad, vague bans on “bullying.” Bullying has been defined by some government officials to include anti-abortion advocacy and commentary in a school newspaper opposing gay marriage. New Mexico legislators want to go beyond schools and workplaces to restrict speech in society generally as “bullying,” allowing criminal prosecutions of people who create a “hostile environment” for politicians and others. Law professor Eugene Volokh criticizes that bill as unconstitutional at this link.  (I discuss some of the ways that the “hostile environment” concept has been used by government officials to suppress speech here at this link).

The current panic over bullying is leading to attacks on free speech, political debate, and free association in the schools; political pandering; dishonest stretching of existing federal laws by federal officials; and violations of basic principles of federalism.

Schools and anti-bullying activists have adopted incredibly over-broad definitions of bullying. The anti-bullying website NoBully.com, and schools like Fox Hill and Alvarado Elementary, define even “eye rolling” and other expressions of displeasure or hostility as bullying, even though doing so raises First Amendment problems.

The Obama administration claims bullying is an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, as even studies funded by the Justice Department have shown. The administration’s anti-bullying website defines exercises of free speech and association such as “spreading rumors” or “excluding someone from a group” as being “bullying,” and it says that “examples of cyberbullying include mean text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing pictures, videos, websites, or fake profiles.”

The U.S. Senate passed restrictions on speech aimed at cyberbullying and “harassment” that UCLA law professor Eugene Volokh concluded violate the First Amendment, including an expansion of “stalking” provisions that were used unsuccessfully to prosecute a Twitter user who repeatedly criticized a religious leader. These provisions are contained in the Violence Against Women Reauthorization Act, which just passed the Senate. (I discuss other problems with that bill at this link.)

The Obama administration has sought to define “bullying” and “cyberbullying” to include constitutionally protected speech, defining it broadly enough to include harsh criticism of politicians, as I explained here. It also has sought to redefine various sorts of real or perceived “bullying” (and even protected speech) as a civil rights violation prohibited by the civil-rights statutes administered by the Department of Education, where I used to work.

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