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“Day of Silence” Cases Remind That Even Arguably Offensive Student Speech May Be Protected Speech

K-12 Education Publications

Two recent cases highlight the limitations school districts face when trying to be proactive in restricting arguably offensive student speech before it has a negative effect at school.

In the first case, Zamecnik v. Indian Prairie Sch. Dist. # 204 Bd. of Educ., a federal district court in the Northern District of Illinois held that students were entitled to nominal damages ($25 each) and a permanent injunction allowing students to wear “Be Happy, Not Gay” t-shirts during a day of silence at school in support of homosexual rights.  The decision is the most recent in a line of decisions in this ongoing litigation, which includes a 2008 decision by the U.S. Court of Appeals for the Seventh Circuit that one of the students was entitled to a preliminary injunction allowing him to wear such a t-shirt to school.  The school district refused to allow the students to wear “Be Happy, Not Gay” t-shirts in years past, in part because when a student had worn such a shirt in 2006 she had been confronted by other students who vehemently disagreed with the language of the t-shirt and because other students had reported being very upset by the t-shirt.  The court held that the school district had failed to meet the well-known Tinkerstandard.  That standard allows school districts to discipline student speech only where the school district can show that the student speech would substantially disrupt the school environment or would at least create a foreseeable risk of substantial disruption.  Here, the court noted that there was no violence at any time, no students’ schoolwork suffered as a result of viewing the shirt, and there was no other evidence that any other type of “substantial disruption” occurred. Hurt feelings were not enough.

Similarly, in C.H. v. Bridgeton Board of Education , a New Jersey federal district court ruled that  a school district could not prevent a student from participating in a national anti-abortion protest by wearing a black and red tape armband with the word “Life” written on it and distributing anti-abortion fliers during non-instructional periods.  The school attempted to support its decision by arguing that the armband would violate the school’s dress code and that the fliers would violate the school’s literature distribution policy, harassment/anti-bullying policy and equal education policy.  The school argued that it needed to enforce its dress code in an unbridled manner to avoid disruptions. Finally, the school district argued that the armband and fliers potentially would upset students who had previously had abortions.  The court disagreed with the school district’s arguments. The court applied the Tinker standard, and found that the school had not adequately shown that the armband or the fliers would create a foreseeable risk of substantially disrupting the educational environment.   The court supported its reasoning based on the fact that the school had allowed other students to participate in silent protests, including the passing out of fliers, in support of a drunk driving awareness group and a group that supports lesbian, gay, bisexual and transgender issues.

These cases warn that reliance on less serious “disruptions”—such as the risk that students’ feelings will be hurt—as a basis for limiting student speech may expose a school district to legal liability. As always, school districts should proceed with caution when restricting student speech.