Aren’t you a lawyer? Do you really think we’re approaching a slippery slope that starts with leaving the words, “under God,” out of the pledge and ends with, “Principal Dickhead.” A high school debate team competitor would be embarrassed to advance such an argument. How does an honest to goodness law talking dude think that this is OK?
For what it’s worth, there have been many cases on the limits of free speech for students. Black armbands and not participating in the pledge are OK. The following is not.
I understand that, but I am attempting to find where that line is in some sort of principled fashion. You cannot simply say that X is clearly okay while Y is clearly not.
The Barnette case dealt with religious objections of the Jehovah’s Witnesses in standing for the pledge. That adds an additional element not present in a political protest of the national anthem.
So we are left with a simple free speech analysis which the cases don’t render any sort of clear principle. If a student has a right to wear a black armband, then why does that same principle not permit him to call his teacher a bad name? In your view, could we punish students for using profanity in class? In the hallways? Grade school kids versus high school?
The caselaw contemplates expressive activity that is not otherwise disruptive. Given the core purpose of education in schools, I think that makes sense. If the expressive activity is disruptive then it could be subject to greater restriction. Ultimately I think it’s a balancing test.
Because one is not just disruptive, it is highly disruptive. This is a super easy call.
Of course. Was that a real question?
Duh. Yes. Are you serious?
Both obviously.
The, “Bong hits for Jesus,” guy held up a sign off school grounds, was suspended, and that suspension was held up by SCOTUS.
Maybe the line between free speech and punishable behavior for students is not as clear as it could be, but using profanity in class is so far beyond that line that I am having trouble taking your questions seriously.
Hah! I quoted both those passages to my seniors yesterday when we discussed Barnette. Some of my more rednecky football players had a problem with it, but after class discussion agreed that just because they didn’t like it wasn’t any reason to force somebody to do something, or refuse to do something like the Pledge or standing/kneeling during the anthem.
You still are just making these bald assertions. How is profanity disruptive?
What if he calls his teacher “Dave” instead of Mr. Smith? That is likewise not disruptive.
However, if we say that it shows a lack of respect for the educational process and is disruptive for that reason, you could make the same claim about not standing for the national anthem.
I agree that is what Tinker says, but that principle is not uniformly upheld, with the Court simply creating ad hoc exceptions as it pertains to the facts of each case.
The “Bong Hits for Jesus” case is instructive. The message is clearly a political one: that marijuana use should either be legal or tolerated. The message was done outside of the classroom setting during a parade. This particular speech on a political issue is at the core of the First Amendment. It would seem as if Tinker made this case a no brainer: the school could not punish the kid for his political views in a manner which did not disrupt the classroom setting.
But the Court upheld the suspension on the grounds that the school had an interest in not promoting illegal drug use. That’s fine and good (although questionable), but doesn’t a school have an interest in teaching respect for flag and country? An interest in supporting the troops during the Vietnam War?
It seems that the case law simply involves the nine Justices deciding whether the speech is sufficiently bad and then subjectively determining whether to apply Tinker or make an unsupported declaration that the school’s interest in X outweighs a student’s free speech rights.
Standing for the National Anthem is not part of the educational process. You could say that learning WHY people stand for the National Anthem is part of the educational process, but that’s a different matter.
As for calling a teacher “Mr. Dickhead,” calling a teacher by an obscenity openly flouts the teacher’s authority. If teachers lack authority, they cannot maintain discipline and order, which means they cannot teach effectively, and that IS a disruption of the educational process. That’s basically what was said in the majority opinion in* Lander v. Seaver*.
On another note, determining when something “disrupts the educational process” without interfering with a student’s right to free expression IS a hazy area that can’t be made crystal clear and unambiguous 100% of the time. That’s why SCOTUS has continued to hear cases regarding various aspects of this issue since* Tinker*. But then, determining what’s protected speech outside of schools isn’t always clear, either, judging from the number of such cases SCOTUS has heard.
If a teacher tells a student to stand for the national anthem and the student says “no,” isn’t the student “openly flout[ing] the teacher’s authority”?
These are all mere descriptors. You say that standing for the national anthem is not part of the educational process, but others could say that the mission of the school is to teach children respect for self, classmates, and country. Part of respecting the society we all live in is rising for a 30 second song and putting your hand over your heart.
Therefore, absent a religious objection, a student may be compelled to follow the instructions of the administrators and stand for the national anthem.
Look at the Bong Hits case. The majority found that since part of the school’s mission was opposition to the use of illegal drugs, a student could not speak against that mission. Why can’t the school’s mission be support for the United States or even support for the Vietnam War? Tinker’s standard is simply not applied consistently.
I don’t know that peer pressure is the right word, because that suggests being pressured by one’s peers into doing something one would rather not, or vice versa. But surely there is a desire to be one of the cool kids, not be left out, etc., that comes into play after a certain point, and that is likely operating on some of those kids here.
But if it is, so what? What does that have to do with the issues we’re discussing here?
But why do you make an exception for religious beliefs, but not political speech? Both are equally protected by the First Amendment.
Nor participating in anthems and pledges can just as easily be seen as making a political statement, as a religious one. So why does the First Amendment grant an exception to one but not the other?
Don’t you see any difference between encouraging an illegal activity, and debate on a political issue? As long as marijuana is criminalised, encouraging students to use it at school is bad for school discipline and administration. That’s not the same for issues like whether a country should be at war.
And that’s not to say that the students in the school are barred from debating whether marijuana should be criminalised. That’s a good healthy public policy debate to have in appropriate classroom levels.
But that’s different from encouraging students to break the law.
Because Tinker and Morse say that political statements may not be made which disrupt the mission of the school. If the school’s mission is to promote patriotism and love of country it interferes with that mission, far, far more than the simple unfurling of an ambiguous banner outside of school.
Religious statements are given higher protection per Barnette where disruption of the school environment is not a factor.
The student did not encourage an illegal activity. That’s the most uncharitable interpretation of the banner that could possibly be made. Even so, one is permitted to advocate for illegal conduct so long as it does not cause that conduct to be imminent. See Brandenburg. Saying that the marijuana laws suck the big one and that those are inclined should smoke away in protest is absolutely political speech. MLK did this all of the time.
A more realistic interpretation was just what you state: that he was making a political statement that marijuana should be legalized. And it was done in a setting which did not disrupt the educational environment, because the kids were not in class learning. They were watching a parade, which seems to disrupt the educational mission all by itself.
My point is that Tinker has been tempered with Morse (and the case where a student gave an assembly speech with salty language about his firm and or hard penis) which makes the whole doctrine subject to ad hoc exceptions which could easily be defeated if five Justices believed that promoting patriotism was a core mission of the school.