by R. Chace Ramey. El Paso, Texas: LFB Scholarly Publishing LLC, 2011. 190pp. Hardcover $65.00. ISBN: 978-1-59332-473-5.
Reviewed by Robert J. Safransky, Ph.D., Adjunct Professor of School Law and American Government, Nova Southeastern University.
This book reviews the major Supreme Court cases regarding free speech in schools, and gives specific situations from each case that will help a school administrator or school board lawyer understand and apply the principles enunciated in each of the four Court decisions. The book is written to be read by school administrators who have had a basic course in school law and want to implement the student code of conduct fairly and appropriately for all students. It is important to remember that these decisions beginning with Tinker v. Des Moines (1969) and Morse v. Frederick (2007) are no longer making the front pages of the newspapers or evening television news broadcasts. Thus, students and administrators may forget the issues and how the cases were decided. The book is written in a readable format so that school administrators will read it and use it, and Ramey cites specific parts of the Court’s decisions or explains them in a footnote.
Each chapter discusses specific cases involving student speech at a school, school function or student expression by clothing or use of the internet. The administrator could have this book on his/her desk or in a bookcase to refer to before making a decision on student speech. Rather than S/he would easily find the chapter pertaining to the current student actions, encounter applicable cases, and make an informed decision by applying the appropriate principles.
“Gallia est omnis divisa in partes tres” (All of Gaul is divided into three parts) is the opening line from Julius Caesar’s description of his Gallic War defeats and victories. Why begin a review of a book written in the twenty-first century with a citation of a book written about events that took place in the mid-fifties B.C.? The answer is that Ramey divides his book into three separate parts to describe the defeats and victories of students and school leaders in dealing with the rights of students to exercise their freedom of speech rights. And in reviewing his work, I will also divide my work into three parts: this introduction, including some of the benefits, of the book; a review of the book itself, and recommendations to improve the next edition.
The reviewer became a junior high school principal in 1968 and learned of the Tinker decision in late February, 1969. The implications of how to apply the Tinker principles would take some time to seep down from central administration, to principals, and then into a code of student conduct. In fact, all of the Supreme Court cases reviewed in this book have not had the decisions equitably implemented by school administrators, who, despite having had a course in school law have not yet [*550] learned that students have free speech rights. “PART I. Opening the School House Gates” is the introduction to the first five chapters, in which Ramey reviews the changes in student rights and types of student speech in schools. Ramey very clearly states, “Student expression has expanded from verbal speech in the classroom, hallways, lunchroom, and written flyers to include in-school video communications, web postings, online blogs and chats, social networking profiles, and cell phone text communications” (p.4). Ramey says that, “the focus of this book [is to]wade through the confusion and bring a degree of clarity to the murky realm of what actually constitutes protected student speech in school” (p.5). As Alexis de Tocqueville said, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
The introduction reviews the Supreme Court’s four decisions and the four principles pertaining to student speech in public schools, and then turns to the decisions made by lower courts in dealing with similar situations.
In Chapter 1, “Wearing Tinker’s Armband,” Ramey begins by asking what students can say and do at school, and what administrators can legally do to stop them. The Supreme Court’s decision in Tinker v. Des Moines Independent School District (1969) “established the first principle for evaluating student speech and expression in school: Students may voice private political expression, and school leaders may only limit the expression if it substantially and materially disrupts the educational process or invades the rights of other students” (p.15).
In chapter 2, “Matthew Fraser: Lewd or Just Funny?” Ramey presents Bethel School District v. Fraser (1986) which involved a student making a nominating speech at a school assembly for which he was punished. Two teachers had informed him before the speech that he should not give it. He gave it anyway. He was suspended, and decided to appeal the school's decision, with his case eventually making its way to the Supreme Court. Ramey points out that the “Court established the second principle for constitutionally limiting student speech and expression: School officials may prohibit or suppress student expression that is lewd, uncivil, vulgar, or obscene in the classroom or at school assemblies” (p.27).
The topic of Chapter 3, “Extra Extra!!! The Administration Decides if You Read all about It!,” Hazelwood School District v. Kuhlmeier (1988), involved a principal not permitting a student paper from being printed until two articles were removed from it. This decision “created a third principle for evaluating students’ speech and expression rights and responsibilities.” . . . School leaders may exercise “editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions reasonably related to legitimate pedagogical concerns” (p.44, citing Kuhlmeier, at pp.272-273)
In chapter four, Ramey discusses the influence of Justice Black’s dissent in Tinker being used in Frazer and Kuhlmeier. Justice Black had stated that students were sent to school to learn, and that they were not adults.
Chapter 5 is titled “No Bong HiTS for Students . . . or Jesus,” addressing Morse [*551] v. Frederick. This case originated in Juneau, Alaska, when the Olympic torch was carried down the street in front of the local high school. Frederick, a student, stood across the street and held up a sign that read “Bong HiTS for Jesus”. Morse, the schools' principal, saw the sign and ordered that it be taken down. Frederick refused. He was suspended, and subsequently appealed the school's decision. The Court upheld the principal's decision and established a “fourth principle for determining the constitutionality of certain student speech and expression in school: School officials may restrict student expression they reasonably believe promotes or advocates illegal drug use in school or at school related activities” (p.58).
“PART II. Beyond Armbands, Bong HiTS, and Assemblies” is comprised of nine chapters that address other issues pertaining to student speech that have been adjudicated only by the lower federal courts.
The book's sixth chapter discusses application of Kuhlmeier to cases involving the following issues: “student expression associated with the marching band (McCann), school plays (Bell), school beautification projects (Bannon), school programs (Hansen), and graduation ceremonies (Corder)” (p.81). These cases were heard in a number of circuits around the country, and how and why school administrators prevailed is clearly explained through quoting specific passages from the courts’ opinions.
The seventh chapter begins by reviewing a case decided by the 8th Circuit Court of Appeals on “the issue of distribution of student produced publications on high school campuses shortly after it published its Kuhlmeier opinion in 1987” (p.83). The Eighth Circuit Court upheld the school policy on distribution on constitutional grounds. The Circuit Court ruled that school administrators could review any student produced publication before it was distributed on school grounds. However, the Ninth Circuit in Burch (1988) found that students may distribute their own material on school grounds without approval of school authorities.
Chapter 8 begins by recounting a situation in which a Minnesota student who was a Green Bay Packer fan was given an in-class assignment to draw a picture of a Minnesota Viking. The Packer fan drew his picture in Packer green and gold and wore a Packer Jacket and jersey on the day the class took a photo and held a parade for the Minnesota Vikings. The student redrew his picture but did it in green and gold and was not permitted to march in the parade because he was wearing the Packer jacket and jersey. The court ruled for the school because he was an elementary student. Another interesting case focused on an attempt by a student to sell Christmas tree ornaments at a school-sponsored event. The teacher did not know that the student was going to attach religious message cards to his candy canes. The student claimed that the school was violating his free speech. The school informed the student and his parents because his project was done on classroom time. The Sixth Circuit held that the school did not violate his First Amendment rights when it banned the sale of the religious ornaments. [*552]
Chapter 9 begins with a quick overview of various techniques used in regular political campaigns, and then moves to a case in which a student used negative comments about his principal during a campaign speech in a school assembly. The Sixth Circuit ruled in favor of the school because this was school-sponsored event.
In chapter 10, Ramey recounts several cases of student athletes being punished by their coaches for their words and refusal to follow directions. Students, according to the Sixth Circuit, do not have a right to participate in extra-curricular activities, and as such the court supported the coaches.
In West Virginia State Board of Education v. Barnette (1943), the Supreme Court decided that students did not have to say the Pledge of Allegiance. The Eleventh Circuit decided two cases involving students not wishing to stand and say the Pledge. The parents would have to give permission to their children to not stand and say the Pledge. The Third Circuit in 2004 nullified a Pennsylvania law requiring parental notification of a student’s refusal to stand or say the Pledge.
Chapter 12 takes up dress codes, including the Sixth Circuit's upholding of an Ohio district’s decision to ban the wearing of Marilyn Manson t-shirts to school. There are similar cases from a number of circuits, but the Supreme Court has not heard a First Amendment challenge to student dress codes. It appears that students and school administrators will have to wait for more student apparel protests to be decided by the Supreme Court as to what can or cannot be worn at school, although with the law favoring administrators, it’s not clear this will be soon.
The internet may accessed by cell phones, tablets, and computers and it has a variety of sites that will be used in a variety of ways by students. There are several cases discussed in this book's thirteenth chapter that have to deal with internet usage and free speech, but there are no cases that have reached the Supreme Court yet. Ramey does not speculate what the Court would do, noting that that student speech and expression can depend on what is said and what Supreme Court case or cases might apply to the specific speech.
Chapter 14 discusses a variety of cases ranging from a kindergartener’s threatening to shoot another student during a playground game of cops and robbers. Another student heard this and reported it to the principal who suspended the child. The court supported the principal in this case because it was “related to a legitimate pedagogical concern” (p.144). The chapter reviews other cases involving threats and violence, and states that the lower courts have supported the administrators’ decisions because they are responsible for a safe school.
PART III of the book reviews the major Supreme Court decisions on student speech. It has a table (p.160) that spells out the principles found in the four cases and demonstrate that the dicta of Tinker does not decide cases. These five principles are: 1. special circumstances exist in schools; 2. differences in treatment of elementary and secondary students are warranted due to maturity; [*553] 3. schools must maintain order and discipline which will influence decisions concerning student rights; 4. Schools’ actions should be reasonable or have a legitimate pedagogical interest; 5. Certain deference must be given to school administrator’s decisions as they are responsible for the education of the children (p.167). This former administrator believes that all practicing administrators should read those principles before making a decision to punish a student’s speech or appearance.
Having provided a summary of the text, let me turn to an evaluation and recommendations. This book is limited as a reference for practicing administrators given the lack of basic information a reference would require. First, the Reference Section at the back of the book does not have listed Morse v. Frederick, 551 U.S. 393 (2007) which is the focus of one chapter and the inspiration for part of the book's title. Ramey did cite the case name, date, and page number of a quote in the text, but not the complete citation of the case either in the text or reference section The Reference Section also did not list the major cases covered in two other chapters, Tinker v. Des Moines Independent Community School District (1969), and Hazelwood School District v. Kuhlmeier (1988).
More generally, if the audience is school administrators, rather than law and courts scholars, the reference section could have usefully provided a map of the United States with the federal circuit and district courts. Why? When one refers to a federal circuit court by number, the average school administrator will not be sure if it refers to a case in his/her circuit and its decision must be implemented by the school. Additionally, there are several worthy websites that could have been provided, such as: www.firstamendmentcenter.org/madison/wp.../silencing.intro_ pdf and law.umkc.edu/faculty/projects/ftrials/conlaw/studentspeech.htm, as well as websites such as Findlaw and The Oyez Project, likely unknown to nonspecialists. Finally, there were no doctoral dissertations on student speech listed in the references, only a master's thesis.
It may be that this lack of other research best indicates how needed a book on this topic is. And in that regard, Ramey has made a contribution. The book discusses the four major Supreme Court cases, along with cases from various district and circuit courts, which demonstrate that the school administrator must be prepared to defend his/her decisions with regard to the free speech of students. The school administrator must strive to stay informed of the laws passed by the state legislature and the decisions of the courts that will affect their actions. If s/he does, they will not see their name as a defendant in a court case.
Bannon v. School District of Palm Beach County 387 F.3d 1208 (11th Cir. 2004).
Bell v. U-32 Board of Education 630 F. Supp. 939 (D.VT 1986).
Bethel School District v. Fraser, 478 U.S. 675 (1986).
Burch v. Barker 861 F.2d 1149 (9th Cir. 1988). [*554]
Corder v. Lewis Palmer School District 568 F. Supp. 2d 1237 (D.CO 2008).
Hansen v. Martin (2003) 293 F. Supp. 2d 780 (E.D. Mich 2003).
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
McCann v. Ft. Zumwalt School District 50 F. Supp. 2d 918 (E.D. MO 1999).
Morse v. Frederick, 551 U.S. 393 (2007).
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943),
Copyright 2012 by the author, Robert J. Safransky