Category: Tinker V Des Moines

Part 1

A. Schenck v. United States was a case that would define the limits of the First Amendment’s right to free speech. Following the United States’ entrance into the first world war, the Espionage Act was passed. The goal of the act was to prohibit interference with recruiting and military operations and also the aiding of the enemy in wartime. Charles Schenck was against the war, so he helped to distribute leaflets to draftees disencouraging them to join the war. Schenck was then indicted for violating the Espionage Act. In the Supreme court, it was argued that his conviction had violated his First Amendment right. However, In a unanimous decision, the Court upheld Schenck’s conviction. The opinion written by Justice Oliver Wendell Holmes said that the Supreme Court determined that Schenck had sabotaged the draft. He also said that “in ordinary times” this act of speech would be protected, a nation at war allowed for greater restrictions on free speech. Justice Holmes then wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (Epstein 342) Justice Holmes’s opinion constituted as the “first and substantial explication of free speech.” This opinion provided the court with the clear and present danger test. Framing these cases and setting a standard in which these future cases would be adjudicated. The question that would be asked in every case involving free speech would be “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (343).

Another case in the evolution of free speech was Whitney v. California. The case was brought before the court because Charlotte Whitney a founder of the Communist Labor Party of California, was prosecuted by the state of California under their Syndicalism Act. She was prosecuted because of her help in organizing a group that sought political and economic change through violence. The question asked to the Justices, in this case, was whether the Syndicalism Act violated the First and Fourteenth Amendments. In a unanimous decision, the court decided sustained Charlotte Whitney’s conviction and held that the Syndicalism Act did not violate the constitution. In his concurring opinion, Justice Brandeis argued that the restrictions of government action through the First and Fourteenth Amendments did not extend to situations in which speech creates a clear and present danger of an evil outcome. (350)

In the case of Brandenburg v. Ohio, Brandenburg, a Ku Klux Klan leader delivered a speech at a klan rally and was then convicted under the state of Ohio’s syndicalism law. The law made the advocation of crime, violence, terrorism, or sabotage as means of accomplishing political reform illegal. In this case the Court was asked the question, did the syndicalism law violate Brandenburg’s First and Fourteenth Amendment rights? The Court’s opinion was that yes, the Ohio law violated Brandenburg’s right to free speech. The court used a test to evaluate speech acts in two parts. One, that speech cannot be prohibited if it is directed at inciting a lawless action, and secondly, it is likely to incite such action. This case effectively overturned the ruling of Whitney v. California and made the Syndicalism Act unconstitutional. (359)

B. How did the Court approach the question of free speech and associational rights in the era of McCarthyism. What specific issues were raised in these cases and what “tests” did the Court use to address them?

The court approached the question of free speech in the era of McCarthyism by trying to reign in the congressional witch hunt of alleged communists and also a return to traditional American values. This can be seen in the case of Watkins v. United States and also Roth v United States. In the case of Watkins v. United States, John Watkins was called to testify by the House Committee on Un-American Activities. Watkins agreed to testify about the alleged connections between him and the Communist Party, and also to identify the parties, current members. However, he refused to give information about people who had left the Communist party. The question asked to the court, in this case, was whether the House Committee on Un-American activities constitute an exercise of congressional power that is unconstitutional. In a 6 to 1 decision the court came to the opinion that the committee’s activities were beyond its congressional powers. The Due Process Clause in the Fifth Amendment invalidated Watkins’ conviction.

Another case in the era of McCarthyism is Roth v. United States. In the case, the Roth was convicted of mailing obscene circulars and was in violation of the federal obscenity statute.

C. An example of cases involving free speech in the Vietnam era are Tinker v. Des Moines and United States v. O’Brien. In the case of Tinker v. Des Moines, a student who was protesting the Vietnam War by wearing and armband was asked to remove it. In this case, the Court was asked if the prohibition of wearing an armband in public school, as a protest, violated the student’s guaranteed First Amendment right to free speech. In a majority ruling, the Court’s opinion was that yes the removal of the armband was a violation of the student’s First Amendment rights. Justice Fortas, who wrote the opinion, said that the action of wearing the armband was closely akin to “pure speech” (423).

Justice Black in his opinion wrote that the wearing of the armbands distracted students from their studies and the teachers from their duties. (426)

Another case in the Vietnam era was United States v. O’Brien. David O’Brien had burned his draft card in opposition to the war in Vietnam. He was convicted of the destruction of his draft card which was a crime. The question the Court was asked in this case was whether the law was an infringement upon O’Briens freedom of speech. In a majority decision the court decided that no, the law did not infringe upon David O’Brien’s right to free speech. The opinion, written by Justice Warren, established a test that determined whether a government regulation involving speech was justified. The test examines whether or not the law is related or unrelated to content narrowly tailored to achieve the government’s interest.

D. When it comes to the balance between punishing hate speech and respecting one’s right to free speech there is a very thin line. The court does respect one’s right to free speech as this can be seen in Brandenburg v. Ohio. Even though Brandenburg’s views are immoral and wrong he also has the right to have them. However, the court also does say in Schenck v. United States that it depends as to “whether the words are used in such circumstances and are of such a nature as to create a clear and present danger,” (342). As long as the speech is not done to incite violence, the speech itself is legal.

E. Yes I agree with the court’s analysis. For example, while I do not agree with Brandenburg, in the case of Brandenburg v. Ohio, I do agree that he has the constitutionally protected right to say his opinion without fear of government reprisal. I also agree with Justice Holmes opinion in Schenck v. United States that in times of war if there is a “clear and present danger,” that Congress has a right to prevent.

Part 2.

A. Free press has been a pillar of American society since its conception. It is a core value of the United States and something that most Americans see as critical. The press is used to help keep the government in check by exposing its wrongdoings. However, throughout this country’s history, there have been arguments for restrictions of free press. Throughout this country’s history, there have been justifications for limiting free press. Supreme court cases that have justified limiting free press were Near v. Minnesota and New York Times v United States.

B. In the case of Near v. Minnesota the question was asked Does the gag law in Minnesota violate the First Amendment? The case was brought to the supreme court by Jay Near, who worked for a newspaper in Minneapolis called the Saturday Press. Near had accused local officials of being involved with gangsters. Because of the article’s scandalous nature officials in Minnesota sought an injunction against the Saturday Press because it violated the public nuisance law otherwise known as the gag law. The Supreme Court justices took a substantial argument against censorship. Chief Justice Hughes, who wrote the opinion said, “The statute not only operates to suppress the offending newspaper… but to put the publisher under an effective censorship” (508). Hughes did however say that these protections are not unlimited and that there are exceptional circumstances in which restraint from the government is necessary. The specifically cited three instances that justify government censorship. This includes, “the protection of national security, the regulation of obscenity, and the prohibition of expression that would incite acts of violence.” (508) Near gave the government the power to legitimately prohibit the publication of materials in times of war that are not regulated during times of peace through Prior Restraint.

The next case was New York Times v United States. This case, otherwise known as ‘Pentagon Papers Case,’is when the Nixon Administration tried to prevent the New York Times from publishing a Defense Department study about the history of the United States activities in Vietnam. Nixon argued that prior restraint was necessary to protect national security. The question asked was whether Nixon’s attempt to prevent the Pentagon Papers from being published violated the first amendment. The opinion was written by Justice Brennan who reasoned that the publication of the Pentagon Papers would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

C. I wholeheartedly agree with the Court’s ruling on Sullivan v. New York Times. When something is written about a public figure it is not enough to label something a libelous just because it presents a falsehood. Rather it has to show “actual malice” towards the target.

In following cases such as Gertz v. Robert Welch, Inc. and Hustler Magazine v. Falwell approached this question in different ways.

In the case of Gertz v. Robert Welch, Inc. the question asked to the justices was if the first amendment allowed a broadcaster or newspaper to claim defamatory falsehoods about someone who is not a public official or figure. Justice Powell wrote the opinion and he argued that the standard application of the Sullivan v. New York Times case was not appropriate because Gertz was not a public official or figure.

However in the case of Hustler Magazine v. Falwell, the court was asked if the First Amendment’s protection of speech extends to plainly offensive statements about public figures or officials, that results in emotional distress. The court decided, in a unanimous opinion, that without showing that the offending publication published an incorrect statement that was made with “actual malice” public figures could not recover.

D. Two of the major Supreme Court cases involving public school student’s right to free speech and press were Hazelwood School District v. Kuhlmeier and Tinker v. Des Moines. In the case of Hazelwood School District v. Kuhlmeier, a student had written an article in the school newspaper about divorce and teenage pregnancy. The school principal was outraged and withheld articles that he deemed as inappropriate from the paper. The question asked to the court was whether the principal’s withholding of certain articles violated the students’ First Amendment rights. In a 5 to 3 decision the court decided in favor of the school district. In the opinion, written by Justice White, said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”(519) However Justice White went on to say that schools had the right to refuse to sponsor speech that they deemed ‘substantially interfere with the work of the school or impinge upon the rights of other students.’ (519). This effectively strips students of their First Amendment rights in any controversial writing they wish to publish through the school. In the dissenting opinion written by Justice Brennan, pointed out the paper itself was supposed to give students the opportunity to express their own views. Also, the student-press publication accepts the First Amendment rights of these students as well. (523)

A Supreme Court case that addresses a student’s right to free speech is Tinker v. Des Moines. A student who was protesting for a truce in the Vietnam War wore an armband in a show of support. The student was asked to remove it and then suspended. In a 7 to 2 majority the case decided that yes the request for removal of the armband was a violation of the student’s First Amendment rights. (423) The court ruled that just because a student stepped into school he or she did not lose their rights to free speech. In the dissenting opinion, Justice Hugo L. Black wrote that the First Amendment does not give one the right to express at any time any. Who wrote that due to the the armbands appearance, it distracted students from their studies, which then detracted from school official’s abilities to do their duties, so the school district was within its rights to discipline the students. (426)

Part 3.

A. The original test that shaped the Supreme Court’s opinion towards public displays of religious artifacts was the Lemon test. This came from the case of Lemon v. Kurtzman, and Justice Burger delivered the opinion to the court. In his opinion, he said that, “Three … tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” (272). Another test, the endorsement test, came from Justice O’connor’s opinion of Lynch v. Donnelly. He proposed that courts should scrutinize whether the challenged government action should constitute an endorsement of a favored religion or disfavor another religion.

In the case of public displays of religious artifacts and symbols, I am more comfortable with the endorsement test. Religion and religious artifacts are an important part of this country’s history and as long as it is done without a political endorsement of one religion over another.

B. A test that has guided the supreme court is the coercion test. Justice Kennedy wrote in his opinion of Lee v. Weisman that at minimum the government cannot compel someone to either support or engage in religious activity. The coercion test is the approach that I feel most comfortable with. It keeps both church and state separate and it makes clear that no government official can force or pressure a person to support a religious activity.

Introduction

In America, School Corporation shave a Constitutional duty to uphold the law and apply it to ever student registered student in the public school system within the Free Appropriate Public Education Statute established by Public law. Statutes that are established based on public law are weighed in higher scrutiny and held to higher expectations to protect the rights of citizens. American Public Education is governing by Federal Constitution and the government is accountable to carry out all acts of the law that protects K12 Educational Statutes. Therefore, when things go bad, in one aspect, most of the court cases govern a statutory establishment. Many laws are on the dockets today and once heard, become the basis of public policy for management of public education. Especially in the 1950s and 1960s, the issue of Secretion, Establishment of what constituted Freedom of Speech in the Amendments of the United States of America in public places, as well as funding concerns of schools with minorities raised several highly volatile cases throughout the United States. The cases went to the Supreme Courts and became known as landmark cases that would impact the creation of public policies, procedures, and management of people within the public school system. These cases set the established standards for decades to come about the lines drawn in the Constitutional Amendment how far the law would go to protect certain freedoms and limit others. The decisions by high ranking Chief Justice Supreme Court Judges created policy applications. In most cases when Serration and Racism were factored in the public, there was no equity and the statues promoted the creation of the definitions and enforced the in doctrinarian of these statues in the public arena. As a result, multiple laws were created to govern Public Education (Alexander, 2012).

Relevant Court Cases

There are several cases that are statutory cases establishing the clearly defined areas of law that promoted direction for what should happen in K12 Public Education Schools. For example, San Antonio Independent School District versus Rodriquez in the US Supermen Court within 1973, that public education is a Fundamental life right in the United States. In other cases, the issues went from racial problems to funding problems. Then, the arguments shifted as to who owns the responsibility to protect schools and fund their existence. However, as presidential as these cases may be, three well mean known cases in history to impact American Education. Tinker v. Des Moines Independent Community School District, 393 US 503 (1969), Case Scenario: Pickering v. Board of Education, 391 US 563 (1968), and Brown v. Board of Education, 347 US 483 (1954). These cases established many of the actions school corporations take today to either avoid serious consequences impede social justice in many cases (Justia, 2019). This case review will evaluate he consequences of the law when there are no laws governing certain actions and within those statutes how they were found to be guidance for the next generation of students, parents, and community.

• Tinker v. DesMoines Independent Community School District, 393 US 503 (1969)

Tinker v. Desmoins (1973) was a case regarding high school students that decided to violate the dress code of a rule made to stop students from wearing war symbols supporting their belief system. While the rule has not been written by the school until after they saw the students wearing the black armbands, the principals created a new school value that was not present nor recorded in any statutes of the school. The student’s complained that their rights were violated. The parents of the students sued the school district after on December 16, 1965, students were sent home stating they violated the policy. The court case was heard in local courts and elevated as a worth issue of constitutionality to the higher courts. The judges in the cases held that the school district had a right to create such a policy without notice and enforce upon the students to abide by the policy or be suspended. When they appealed the decisions, another court’s judges also stated that the school district could determined their worth without rational. As a result, it stood that students could not wear any warlike clothing in school that promoted speech where it influenced the act of war. While the students and their parents argued that this was a Freedom of Speech Issue and a Violation of their Constitutional Rights to wear their speech. The Courts Stated there was no issue of Speech involved. Their Speech if any also was supporting involved in way. There was no educational value nor rational connection to any aspect of school corporation’s policy to educate every student that promoting the wearing of the arm bands. They were encouraged to wear it after school and not during school. This angered the students and instead of abiding by the school policy, they increased their protests of the school policy until they were sent home. From the School’s perspective, these were students acting against the best interest of the school and safely being students. The Court’s ruling was appropriate and there was no connection to their inability to say what they felt. In fact, their protest and telling other students and parents led to the court case. Therefore, their ability to form and inform others was not violated. It is also the perspective of this observation that no such constitutional rights were infringed upon during this period. The students broke school policy and the school acted appropriate to stop the festering of other student’s copy catting very dangerous symbolisms of acts of war (Justia, 2019)

• Case Scenario: Pickering v. Board of Education, 391 US 563 (1968) Pickering v. Board of Education of Township

An Administrator of the local High School in Pickering Township from High School District 205 became upset about the way he felt the School Board of Directors were conduct business of funding the school. Instead of writing the school board, he wrote a letter that was published to a newsletter about the Board of Director’s inside dealings in their financial budgeting for the District. The letter was public ally published while the Principal was still serving the school about his opinion of the matter. When they found out, the Board Terminated his employment. H filed to have his job reinstated and claimed that his Freedom of Speech was violated by denying his ability to First Amendment rights. The School Board sued Pickering and denied all allegations he made about their budget and tax actions. When the local court heard the case, they ruled in favor of the School Board. The High Courts in Illinois tried the case and upheld the decision. However, not satisfied with the decision, The Administrator continued to appeal until the Case reached the United States Supreme Court to be heard. In an 8 to 1 Major ruling written by Chief Thurgood Marshall, the courts found that the Board of Directors did violate his rights. They deemed that the letter written contained information (Justia, 2019).

Within such a case, two major issues came about and impacted the way Administrators with opposing views can serve Board of Directors as they sit actively in Administration. The Principal was under contract and agreed to serve the school district in align as a team member serving the district. The second issue was he opposed the Board openly and took private information shared in their forums of decision and sent it to the news media. These two issues raised symbolize a defiance and deficiency of disagreement that promotes public agenda to destroy the school board’s ability to rule their citizens. At the heart of the matter is the act of rebellion against them while he still received his paycheck from the district. Within another case, the same scenario happened, Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967) (OYEZ, 2019). They fired the person because their statement made did not agree with the type of person they wanted in their district. Their human resources decisions was made based on his speech alone and not because of his work ethics (Justia, 2019).

It is valued that the Supreme Court did not take away the right of someone working in an organization to be mistreated based on a difference of opinion with company. By supporting such policies, there would be inspired discriminatory practices through industries. This would cause a massive problem in the workforce. Daily there are many that write letters and promote their opinion against their company. If they are using their own finances on their own time to use their free speech rights, there is no violation (Justia, 2019).

• ase Scenario: Brown v. Board of Education, 347 US 483 (1954)

The school-aged children of Topeka Kansas were African American Children living in one District and were told by the School District based on their Skin Color, the could not attend nearby school because it was for White Children. The nearby school allowed the children to suffer to get to school whereas, the colored school was further away. This created an unequal deprivation for the children and promoted the abuse of their ability to grow because of racial segregation. The parents reported this information to the NAACP and the NAACP accepted the case from across several areas. What occurred in 1951 was the result of another Statue set called Plessy versus Ferguson where the courts held that Separate was equal. They attempted to apply the same. As a result, all the children were denied access to schools near their community of resident in the school districts. They were not offered bussing instead had to walk to the further school (Justia, 2019).

During the trial the NAACP brought against the school district, the lower courts heled that they recognized the detrimental impact on the children. However, they still did not change and applied the Plessy Standard to the issue. Based on this instead of another appeal denied, The NAACP cast their appeal to the Statue itself, Plessy. The case made it to the Supreme court where the Judges wrote, not a Constitutional Judicial appeal, but created a decision based on Social Conscious. They found other cases under this umbrella in several states and combined the cases to send statutory law over the entire matter. The NAACP argued that this was a gross violation of rights of the Fourteenth Amendment (Justia, 2019).

“This case was the consolidation of cases arising in Kansas, South Carolina, Virginia, Delaware, and Washington D.C. relating to the segregation of public schools based on race. In each of the cases, African American students had been denied admittance to certain public schools based on laws allowing public education to be segregated by race. They argued that such segregation violated the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs were denied relief in the lower courts based on Plessy v. Ferguson, which held that racially segregated public facilities were legal so long as the facilities for blacks and whites were equal. (This was known as the “separate but equal” doctrine.)” (Justia, 2019, Supreme Court Ruling) Retrieved from Case Law Review ).

Separate but equal educational facilities for racial minorities is inherently unequal. violating the Equal Protection Clause of the Fourteenth Amendment. In the Rulings, Chief Justice Warren wrote the report that the children’s rights were violated and created then unequally to say that African American Children were unequal and inferior to being treated well by going to schools with the intent of color. As a result, Plessy versus Ferguson treatment as a Standard of law was defeated and removed from public Education. This case became the Statutory Standard and, it restored the right for students to go to school within their District near their residence (Alexander, 2012).

The Application of the Law and Policy

First, there is a scripture that states, “the law of the Lord is perfect, converting the soul; the testimony of the Lord is sure, making wise the simple. Psalm 19:7 …” This Biblical Application to law when it is intended to not harm another person means its brig peaceful closure and causes the public to become even wiser. In all three cases, the struggle of one person over another to demonstrate that their view of the situation is the correct one. In the History of the modern world, since judges sat the judge between two parties, it has been based on who could present the most evidence against the other person. Second, in several cases beyond the three presented, the rule of law governs by opinion of men and women sought the disciple to make such judgments in high court seats, established precedential rulings that become the way the public governs itself and others in the United States. While on one hand, most of the laws remain and most public agencies recognize such laws, in an example of Plessy v. Ferguson, 163 U.S. 537 (1896), this law was made and used to cover all decisions. This was damaging application of law and nearly destroyed the moral fiber of education for school aged minors (Justia, 2019). Their parents were not asking for much but, an opportunity not to walk for twenty miles to school every morning and afternoon. If the parents had not braved the inquiry an NAACP can learn of all the violations in the many states, children would have continued to be violated and families living in humiliations. Finally, the application of law or the decision to use law can only happen if there are people brave enough to bring their concerns. Every case listed had a party willing to take risks. Thus, the real law makers are not the judges sitting on the bench. The law makers are those who see what the Spirit of God stated in Psalm 19:7 that people going to God to apply his statues of justice are the real power behind the affirmation of court proceeding. The application of a processed and passed law happens if only we have those with moral hearts to carry out the work without violations in themselves of breaking the law (Wrights Law, 2017).

Conclusion

The cases reviewed in the observational writing were each attached to issues in education that deal with the interruption of a process where parties disagree on the results of what they desire to see happen in their lives. While painful to watch, in Brown v. Board of Education, 347 US 483 (1954), the Brown Family out of all those families suffering the same, stood up to fight the injustice and felt, they had enough strength to defeat the problems and processes in places to infringe upon their rights. The Principal in making a Statement was fired by his School Board, and the children decided to promote their ideology despite the school’s policy. However, upon evaluation of the cases, it is noted that these cases were door way cases leading to the bigger issue of how rights of the people are upheld against statues. The real winners were the children that endured the grueling change to just attend a white school district near their home. Even if law is made, someone must still be willing to go through the process of application to make the law viable and established for it then, to reflect true change (Bible, 2018).

Works Cited

1. Alexander, K. (2012). American Public School Law. Belmont: Wadesworth.
2. Bible, H. (2018). Bible. Nashville: Holsman.
3. Justia. (2019, 01 29). Supreme Court Ruling. Retrieved from Case Law Review: https://supreme.justia.com/cases/federal/us/163/537/
4. OYEZ. (2019, 01 29). Body Politics. Retrieved from Supreme Court: https://www.oyez.org/cases/1940-1955/347us483
5. Twenty-One Methods of Biblical Faith-Learning Integration. (2013). The Journal of Biblica Integration in Business, Vol 16 No 3.
6. Wrights Law. (2017, 02 04). Retrieved from Special Education Caselaw: http://www.wrightslaw.com/caselaw.htm

Statement of facts

This is a case of first impression regarding the protection of Jennifer Morgan’s First Amendment rights. Defendant suspended fifteen-year old Jennifer Morgan for posting memes to Instagram with her personal cellphone from the privacy of her bedroom. (Dep. of Jennifer Ann Morgan, 4:15-32.) Typically a high achiever and an “A” student, Ms. Morgan received a “C” in Ms. O’Malley’s class. Morgan Dep. 1:18-20. Bewildered and confused, Ms. Morgan sought advice from fellow classmates and discovered that none of the females she spoke with received an “A” in the class. Morgan Dep. 3:20-28. Conversely, the male athletes received significantly higher grades and preferential treatment that included special tutoring sessions. Morgan Dep. 3:24-4:2. While in her bedroom Friday evening, February 2, 2018, Ms. Morgan took action, hoping to achieve equal treatment and receive fair grades. Morgan Dep. 4:8-14. She created two satirical memes on her iPhone, posting them publicly on Instagram. Morgan Dep. 5:11-31. The overwhelming responses to the memes were humor, “likes,” and an increase in new followers. Morgan Dep. 4:32-5:2. The first meme contained Ms. O’Malley’s picture on a cougar and the male athletes’ pictures on cubs with the caption “Cougars? They make great pets.” Morgan Dep. 5:15-20. The second meme portrayed Ms. O’Malley in a low-cut blouse near a male student with hashtags and the captions “COUGARS – Always on the prowl” and “A teacher with a very hands-on approach.” Morgan Dep. 5:23-29.

Jennifer Morgan is an avid photographer who volunteered her time and talent developing content and taking photos for the school’s Yearbook Club. Morgan Dep. 1:22-23. She maintained a spotless discipline record and was never involved in a fight. Morgan Dep. 1:11-15. Ms. Morgan enjoys developing her photography and editing skills by exploring new programs in her free time and on weekends. Morgan Dep. 2:4-6. Her creative designs were inspired by political and social comedians and she used similes, metaphors, and hyperbole to communicate social issues and current events with satire and humor. Morgan Dep. 2:26-29; Compl. 2. Her Yearbook Club advisor, Mr. Hudson, encouraged her to continue developing her talent until Mrs. Jones suspended her. Morgan Dep. 2:29; Dep. of Carol E. Jones 4:17-5:13.

A football player who viewed the memes over the weekend notified the principal, Mrs. Jones, that Monday. He claimed the coach was angry and other players’ parents might be contacting her. Jones Dep. 1:20-25. Mrs. Jones accessed the memes on her personal cellphone and called Ms. Morgan into her office. Jones Dep. 1:28-2:28. Ms. Morgan genuinely believed everything she said was true but conveyed it satirically and humorously. Morgan Dep. 7:13-14. Later that day, Mrs. Jones spoke with Ms. O’Malley. Although she had not seen the memes yet, she admitted she was not surprised to hear of the favoritism allegations. She stated she would be willing to tutor all her students, not just the males. Jones Dep. 3:10-19.

On February 7, Mrs. Jones suspended Ms. Morgan from school for five days and extracurricular activities for the remainder of the school year. She believed the memes violated school policy, specifically section 7.2, and indicated they were “disrespectful and, if left unaddressed, could undermine the educational environment of the school.” Jones Dep. 4:14-20.

Mr. Hudson confirmed school resources were not used to create the memes. Ms. Morgan used the “Graffix” app and accessed the off-campus photo bank. Jones Dep. 3:33-4:7. The memes were not posted, accessed, or viewed by Ms. Morgan at school, nor were they accessed by students using school resources because Instagram is blocked from the school’s wireless network and computers but is still accessible through cellular networks. Morgan Dep. 6:1-19. Although students came up to Ms. Morgan, she did not mention the memes or tell anyone to view them. Morgan Dep. 6:6-20. Teachers reported that students were slightly more talkative than normal, Ms. O’Malley’s name was overheard a few times, some “meowing” and “growling” noises were overheard in the hallway, and rumors were starting to circulate. Morgan Dep. 6:20-21; Jones Dep. 5:25-29. However, no material and substantial disruption was sustained by Defendant on February 5. Morgan Dep. 6:28-29; Jones Dep. 5:24-6:6.

Plaintiff filed a complaint and demand for a jury trial on May 2, 2018. Defendant filed an answer on May 16, 2018. On November 16, 2018, Defendant filed a motion for summary judgment and on December 14, 2018, Plaintiff filed a response to Defendant’s motion for summary judgment and a cross-motion for summary judgment. On January 15, 2019, Defendant filed a response to Plaintiff’s cross-motion for summary judgment.

Issue

Under the First Amendment, did the Defendant violate Ms. Morgan’s First Amendment rights when the memes were created off-campus from Ms. Morgan’s personal cell phone from her bedroom and no school resources were used to create, view, or access them; the memes did not affect Ms. O’Malley’s work or the way she interacted with students, and some “meowing” and “growling” noises were heard in the hallway, Ms. O’Malley’s name was overheard in classrooms, and students were talkative?

Argument

To prevail on summary judgment at trial level, “A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” Fed. R. Civ. P. 56.

I. The court should grant the plaintiff’s motion for summary judgment based on the first amendment because the defendant violated Ms. Morgan’s right to free speech.

The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The First Amendment guarantees the right to freedom of speech and students remain under the protection of the Constitution whether in school or out of school. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969). Schools do not have the right to exercise authority over them at all times. Id. To ensure freedom of speech is protected, the Supreme Court has recognized that student speech must be strictly guarded by the First Amendment. Additionally, the Supreme Court holds that the Fourteenth Amendment protects citizens against the State, which includes the Board of Education. The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.

The Supreme Court has determined that schools may only restrict student speech in specific instances. A student’s right to freedom of expression is protected by the First Amendment, even in the occurrence of an “undifferentiated fear or apprehension of disturbance.” Tinker, 393 U.S. at 508. The Supreme Court developed a two-part test to determine if a school may restrict the student’s speech. First, the school must be able to show that it would “materially and substantially disrupt the work and discipline of the school” or “impinge upon the rights of other students.” Id. at 509. Second, the school must prove the action taken was caused by something “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint or an urgent wish to avoid the controversy which might result from the expression.” Id. at 510.

Students may exercise freedom of speech in a school-sponsored publication; however, schools retain editorial control over the style and content if other students, parents, and members of the public might reasonably perceive it to bear the imprimatur of the school. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988). Student speech that is offensive, lewd, and indecent and contains elaborate, graphic and explicit sexual metaphors is also protected unless it undermines the school’s basic educational mission with a captive audience. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 678, 685 (1986). In Bethel, the Supreme Court determined a balancing test that weighs the freedom to express controversial or unpopular views against society’s interest in “teaching students the boundaries of socially appropriate behavior.” Id. at 681. Lastly, student speech is protected at school-sponsored events, unless the speech is reasonably viewed as promoting or advocating illegal drug use. Morse v. Frederick, 551 U.S. 393, 403 (2007). The school need not demonstrate the speech will give rise to a “risk of substantial disruption” in this instance. Id. at 399.

This is a case of first impression in this jurisdiction. In this case, the Court should grant Plaintiff’s motion for summary judgment because Defendant cannot meet the burden of proof that Ms. Morgan’s speech created a material and substantial disruption or impinged upon the rights of other students. Additionally, suspending Ms. Morgan was merely a desire to avoid discomfort and unpleasantness surrounding an unpopular viewpoint.

A. Ms. Morgan’s Suspension was Constitutionally Impermissible Because the Defendant did not Sustain a Material and Substantial Disruption Resulting From her Speech.

When student speech occurs off-campus, the Supreme Court applies the two-part Tinker test. The school must prove that a material and substantial interference disrupted the work and discipline of the school or impinged upon the rights of other students. Tinker, 393 U.S. at 508. Prohibition of an opinion lacking evidence of necessity to prevent a material and substantial interference with school work or discipline is not constitutionally permissible. Id. at 511. The Supreme Court holds that the test is not satisfied by an “undifferentiated fear or apprehension of disturbance” Id. at 508. When the speech occurs off-campus, the school must establish a sufficient nexus between the student’s speech and the material and substantial disruption of the school environment. Layshock v. Hermitage School Dist., 650 F.3d 205, 214 (3d Cir. 2011). Internet speech that directly targets the school is not subject to school regulation for the mere reason that a teacher is referenced. Sagehorn v. Independent School Dist. No. 728, 122 F. Supp. 3d 842, 858, 861 (D. Minn. 2015). In addition, speech referencing teacher-on-student sexual conduct does not automatically render it likely to reach the school and cause a material and substantial disruption. Id. at 842. Speech will constitute a material and substantial disruption if sufficiently harassing, threatening, or intimidating, and it adversely affects a teacher’s work and the way the teacher interacts with students. Bell v. Itawamba County School Board, 799 F.3d 379, 388 (5th Cir. 2015). Merely causing a teacher to have difficulty performing his duties while upset and “almost in tears” will not constitute a material and substantial disruption. Killion v. Franklin Regional School District, 136 F. Supp. 2d 446, 456 (W.D. Pa. 2001). If a material and substantial disruption did not occur but could be reasonably forecasted if the school did not intervene, the first element of the Tinker test will be met. Bell 799 F.3d at 379. However, if the speech is outrageous enough that no one could take it seriously and no one does, schools cannot “reasonably forecast” a substantial disruption. J.S. ex rel. Synder v. Blue Mountain School District, 650 F.3d 915, 930 (3d Cir. 2011).

Student speech will constitute a material and substantial disruption if the student’s conduct demonstrates an unwillingness to fulfill the extracurricular role or the student constitutes a direct challenge to the coach’s authority. Thus, removing the student from the extracurricular activity does not constitute a violation of his First Amendment rights. See Doninger v. Niehoff, 642 F.3d 334, 350, 351 (2d Cir. 2010); Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007).

In this case, Mrs. Jones admitted that she felt the posts were “disrespectful and, if left unaddressed, could undermine the educational environment of the school.” However, in Bethel, student speech that undermined the school’s educational environment occurred inside the school before a captive audience of 600 students. Bethel 478 U.S. at 677. The speech was sexually explicit, elaborate, and graphic. Id. at 678. Although Ms. Morgan’s memes were sexually suggestive and contained innuendos, the pictures and words were not sexually explicit, elaborate, or graphic. Additionally, the memes were posted off-campus to the public and did not constitute a captive audience; viewers had to choose to view the memes; they were free to ignore or scroll past them. The fact that Ms. Morgan’s Instagram gained a significant number of followers indicates viewers chose to look at them. Morgan Dep. 5:8-9. In Tinker, the Supreme Court took care to specify that the speech must be more than an occurrence of “undifferentiated fear or apprehension of disturbance” to be restricted. Tinker 393 U.S. at 508. Mrs. Jones stated the coach was angry, players’ parents might be contacting them, and rumors were starting to circulate. Jones Dep. 1:24-25, 6:4-5. Defendant’s fear or apprehension of the players’ parents contacting the school is insufficient to constitute a material and substantial disturbance. In Layshock, a student created a satirical “parody profile” for the school principal with a picture retrieved from the school website. Layshock 650 F.3d at 207. The school could not establish a material and substantial disruption had occurred even though the profile claimed the principal was transgender, used illegal drugs, and the news “spread like wildfire.” Id. at 208, 214. Similarly, news of Ms. Morgan’s memes spreading around the school also cannot constitute a material and substantial disruption. In Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015), a high school student recorded a song using harassing, threatening and intimidating language that directly accused two coaches of sexual misconduct with students. Id. at 409. He posted it publicly on Facebook from his private computer during non-school hours, intending to reach the school community. Id. at 383. Although Facebook was blocked from school computers and students were banned from bringing cellphones to school, it was reasonably foreseeable that the song would cause a material and substantial disruption because it adversely affected the coaches’ work and how they interacted with students. Id. at 383, 388. Although the memes were posted publicly to social media and reached the school community, this case is distinguishable from Bell because the memes did not harass, threaten, or intimidate; Ms. Morgan posted satirical and suggestive innuendos rather than direct accusations, and Ms. O’Malley’s work was not affected, nor did it affect her interaction with students. The memes did not fulfill the requirement of a material and substantial disruption.

B. Ms. Morgan’s Speech did not Impinge Upon the Rights of Other Students.

In the absence of a material and substantial disruption, the speech must have collided with or impinged upon the “rights of other students to be secure and to be let alone.” Tinker 393 U.S. at 738. Speech that ridicules, harasses, bullies, and intimidates or contains an identifiable threat of violence will constitute an impingement of other students’ rights. See Kowalski v. Berkeley County Schools, 652 F.3d 565, 569 (4th Cir. 2011); Wynar v. Douglas County School District, 728 F.3d 1062, 1069 (9th Cir. 2013). Speech that merely offends or criticizes another student’s way of life and sexual preference will not fulfill the requirement of impinging upon the rights of other students. Glowacki v. Howell Public School Dist., No. 2:11-cv-15481, 2013 U.S. Dist. LEXIS 85960 (E.D. Mich. June 19, 2013).

In Kowalski, a student-created webpage was dedicated to ongoing ridicule, harassment, bullying, and intimidation of another student. Kowalski 652 F.3d at 567. Although originating from a private computer at home, it was foreseeable that the off-campus speech and conduct would reach the school because it invaded the right of another student to be left alone. Id. at 571. Because the speech was ongoing, the harassment was liable to continue had the school not intervened. Id. at 574. Unlike Kowalski, in this case, the memes did not ridicule, harass, bully, or intimidate another student. The memes were posted once which does not constitute ongoing and dedicated conduct directed toward another student. In addition, Ms. O’Malley was the focus of the memes, not the student-athletes. Without ongoing and dedicated conduct or an identifiable threat of violence directed toward another student, Defendant did not fulfill the first part of the Tinker test and lacked the right to restrict Ms. Morgan’s speech.

C. Defendant did not Establish the Action Taken was Due to Anything More Than Discomfort and Unpleasantness from an Unpopular Opinion or an Urgent Wish to Avoid Controversy.

Even if the first half of the test was fulfilled, the Defendant must fulfill the second requirement and prove that restricting Ms. Morgan’s speech was “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint or an urgent wish to avoid the controversy which might result from the expression.” Bethel 478 U.S. at 509. Talkative students, the beginning of rumors, and hearing noises or names in the hallway did not rise to the level of a material and substantial disruption, nor could one have reasonably been forecasted. The memes did not impinge upon the rights of other students as established by the Supreme Court in Tinker; however, the controversy resulting from Ms. Morgan’s speech does resemble the “discomfort and unpleasantness” resulting from an unpopular viewpoint. Without a material and substantial disruption or speech that impinges upon the rights of other students, and proof that the violation of Ms. Morgan’s speech was more than the desire to avoid the controversy, discomfort, and unpleasantness resulting from it, the school violated Ms. Morgan’s First Amendment right to free speech.

Question Presented

Have the first amendment rights been violated when students take a stand against gun control by selling t-shirts, even though at first their principle gave permission to sell the t-shirts to promote their protest on gun violence and then gave Kylie a suspension at the cost of a scholarship?

Short Answer

Yes. Under the Constitution, the First Amendment rights of Freedom of Speech for Americans does not stop at the door for students if there is no disruption, vulgar speech, or displaying drugs on clothing.

Statement of Facts

Kylie Smith and the group of students were selling t-shirts with the saying on them ‘Thank you for your thoughts and prayers, but we need stricter gun laws.’ on the back it read ‘Harrison West does not want to be next!!!’. There are about 500 students in the school. Mrs. Jones oversaw the group and brought the proposal to principal Mr. Wyatt and he said it was fine to sell the shirts.

There were a group of students that were upset about the shirts and so Mr. Wyatt told the group to stop any more sales and to refund the ones that were already sold. He was unaware that they would be worn at the school.

Mr. Wyatt told the president and vice president of the group that they were in violation of the school handbook and gave them a two-day suspension. The reason he gave was that they were disrupting the school.

Due to the suspension, Kylie was unable to finish her school work and missed her volleyball game where a Harvard coach came to see her play but now the coach has decided not to retain her for their college.

Discussion

Kylie Smith has been issued a suspension from school for protesting on gun violence by her principle but under the First Amendment Kylie’s rights are in question. Under the case of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), students keep up free discourse rights while at state-funded school including the privilege to articulation inside specific parameters.

Tinker is the trademark case for student rights, broadly proclaiming that understudies don’t ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ Tinker, 393 U.S. at 506. In Tinker, understudies were suspended because they wore dark arm bans to challenge the Vietnam War. Id. at 504. The Court held the ‘Constitution . . . [did] not allow authorities of the State to preclude [the students’] structure from securing articulation.’ Id. at 514. 2 Because the understudies that wore arm bans occupied with ‘quiet, detached articulation of sentiment, unaccompanied by any turmoil or unsettling influence’ and they ‘neither intruded on school exercises nor looked to encroach in the school undertakings or the lives of others,’ the Court held that the understudies’ activities did not ascend to the dimension of a ‘considerable disturbance of or material obstruction with school exercises.’ Id. at 508, 514. The Court clarified that limitations on understudy articulation are just suitable to ‘maintain a strategic distance from material and significant obstruction with schoolwork or control.’ Id. at 514. Understudies’ rights in the government-funded school are not, in any case, coextensive with the privileges of grown-ups in different settings, and the educational committee has some specialist to decide ‘what way of discourse in the study hall or in a school get together is unseemly.’ Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682-83 (1986). After its choice in Tinker, the Supreme Court cut out three exemptions to the free discourse privileges of understudies. Vulgar discourse, Fraser, 478 U.S. at 485, discourse advancing illicit medication use, Morse v. Frederick, 551 U.S. 393, 403 (2007), and school-supported discourse, Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272– 73 (1988) are three classes of discourse that school authorities can blue pencil and confine.

Similarly, as government operators may not constrain understudies’ free discourse rights other than by the confinements talked about above, they additionally may not expect understudies to embrace a conviction or perspectives. The Constitution ‘secures the resident against the State itself and many of its creatures—Boards of Education not excepted,’ government funded instruction must not be ‘fanatic or foe of any class, ideology, gathering, or group.’ Id. at 637.

Id. at 642. Hence, councils and educational committees may not, without disregarding the Constitution, expect understudies to talk, accept, or receive any perspective.

Conclusion

Kylie Smith’s case on protesting against gun violence while selling t-shirts does not violate Kylie’s First Amendment rights under the Constitution and Statute. Kylie is not violating any laws and is not being disruptive or promoting any drugs and there is no use of vulgar language.

The fact that she lost a scholarship just adds to Kylie’s case of what she could have accomplished in Kylie’s future endeavors.