WINONA W. ZIMBERLIN

LAW OFFICE OF WINONA W. ZIMBERLIN

2 CONGRESS ST.

HARTFORD, CT. 06114

WINONA W. ZIMBERLIN

LAW OFFICE OF WINONA W. ZIMBERLIN

2 CONGRESS ST.

HARTFORD, CT. 06114

(860)249-5291 ph.

(860) 247-4194 fax

FIRST AMENDMENT RIGHTS OF STUDENTS

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

– U.S. Constitution, First Amendment

SEC. 3. The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.

SEC. 4. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.

SEC. 5. No law shall ever be passed to curtail or restrain the liberty of speech or of the press.

– Connecticut Constitution

A. FREEDOM OF SPEECH

1. The Basic Principle –

Students have constitutional rights in the school setting.

Students do not shed their constitutional rights to freedom of speech and/or expression at the schoolhouse gate. Students have the constitutional right to voice even unpopular opinions at school.  Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)(student wished to wear a black armband to protest the Vietnam war); see also West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)(elementary and secondary public school students have the right to refuse to say the Pledge of Allegiance.  The Court held that compelling school children to say the Pledge infringed their rights because it coerced them to accept and affirm political beliefs and ideas with which they might not agree).

The rights of students to freedom of speech while in school must be balanced against the legitimate concerns of the schools in maintaining an orderly environment.  Student expression is constitutionally protected unless it materially and substantially disrupts normal school activities or invades the rights of others. The burden is on school officials to show that they have met the Tinker standard before they can censor student expression. School officials need not wail until a disruption actually occurs before they can limit student expression. They may make a reasonable forecast of the disruption. They cannot base their claim on undifferentiated fear or apprehension of disturbance.  School officials must show specific facts supporting their claim of disruption.

2. Freedom of Speech claims can arise in many scenarios-

some examples are:

– classroom discussions

– student assemblies

– graduation

– rights of association

– a school play

– the Pledge of Allegiance

– symbolic speech (ex.: black armbands to protest the war; dress codes)

– school sponsored newspapers, literary magazines, yearbook

– “underground” student newspapers distributed on school grounds

– E mails, web sites by students

– letters, notes from one student to another on school grounds

– off campus speech by students( ex: threats)

3. There are limits to students’ rights to free speech-

The rights given to students in Tinker have been limited in certain situations:

– Obscenity. Obscenity does not enjoy First Amendment protection.

– Vulgar or indecent expression. Vulgar or indecent expression can be censored in the school context even if it is not obscene. In Bethel School District v. Fraser,   478 U.S. 675 (1986), a school permissibly suspended a high school student for giving a speech at a school assembly involving sexual innuendo. The Court held that schools have a responsibility to teach the “habits and manners of civility” essential to a democratic society. Significantly, the suspension was not because of the political content of the speech.

– School sponsored activities. School officials may censor students’ speech in a school sponsored activity, such as a school newspaper. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260(1988), the Supreme Court held that a school newspaper was not a traditional public forum. This case eroded the rights given to students in Tinker. In Hazelwood, students wrote articles for a school sponsored newspaper involving issues of pregnancy, divorce and runaways. The principal refused to allow the article to run in the paper. The student writers sued, claiming a violation of First Amendment rights. The Court found that the newspaper was an extension of the educational process. The school could, therefore, exercise control over the type and content of student speech in school sponsored activities if such action is reasonably related to legitimate pedagogical concerns. School officials must demonstrate some reasonable educational justification before they can limit student expression. They may not be attempting to silence one particular point of view on an issue. The Hazelwood standard applies to school sponsored publications, theatrical productions, yearbooks and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. The result of this case would be different if the school newspaper had been opened up as a forum for student expression where student editors had been given control over content. If a school has, by policy or practice, given editorial control to the student publication staff, the Tinker standard will apply.

Many court cases have been filed by students claiming violation of free speech rights. Courts have continued to wrestle with the issues involved in Tinker and Hazelwood. Some states have adopted statutes which give students greater protection than given by the court in Hazelwood. States may give students more rights to free expression than exist under federal law.

– Defamation. Defamation law includes both libel and slander. Libel is any published communication that falsely harms a person’s reputation. This can include words, cartoons, captions, photos, letters to the editor. Spoken words are generally considered slander. Truth is a defense. There are also several other defenses to a defamation claim.

– Copyright protections.  A student’s right to freedom of speech cannot infringe upon another person’s right to copyright protection. Generally, copyright law protects the owner of an original work of authorship against unauthorized use of his or her work for a limited period of time.

– Invasion of privacy. A student’s right to freedom of speech cannot infringe upon another person’s right to privacy. Courts have recognized to right of an individual to sue for invasion of privacy.

CONCLUSION:

While students clearly have rights to freedom of speech in the school setting, those rights are not absolute, and must be balanced with the legitimate interests of the school and other individuals. School policies should be specific and tailored to meet the school’s legitimate interests. If an activity is not school sponsored, student speech may not be censored unless it is disruptive, invades the rights of others or is vulgar or offensive. Schools have more latitude in censoring student speech in a school sponsored activity. Teachers and school boards can be sued if they infringe on a student’s First Amendment right to freedom of speech.

B.  FREEDOM OF RELIGION

Two Basic Principles- The Establishment Clause and the Free Exercise Clause

1. The Establishment Clause –Congress shall make no law respecting an establishment of religion. This clause prohibits a state supported religion, and forbids excessive government entanglement with religion.

This issue comes up in many ways:

– tax money used for vouchers for religious schools

– tax money used for textbooks, teachers, related service providers at religious schools

– school prayer. Engel v. Vitale, 370 U.S. 421 (1962)(Schools may not read a daily prayer); Abington v. Schempp, 374 U.S. 204(1963)(Requirement of reading Bible verses in school is unconstitutional).

– graduation speeches by students, graduation songs

– religious displays on school property (painting crosses; inscriptions)

– student clubs which meet on school property, either during school time or before and after school

– the Pledge of Allegiance. In Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301 (2004), a school district required each elementary school class to recite the Pledge of Allegiance daily. A father, Michael Newdow, filed suit alleging that, because the Pledge contains the words “under God” it constitutes religious indoctrination of his child in violation of the Establishment and Free Exercise clauses of the First Amendment. The child’s mother intervened and asked that the lawsuit be dismissed because she claimed that she had legal custody and she did not believe that it was in the child’s interest to be a party to Newdow’s suit.  The Supreme Court agreed with the mother and held that Newdow did not have legal standing to bring this claim.

– transportation to religious schools.  See Conn. Gen. Stat. §10-186

– non-student religious groups who wish to meet on school property

– holiday celebrations

– moment of silence. See Conn. Gen. Stat. §10-16a, “Each local or regional board of education shall provide opportunity at the start of each school day to allow those students and teachers who wish to do so, the opportunity to observe such time in silent meditation.”

Does the action of the school violate the Establishment clause? Ask these questions:

– Is there a secular purpose in the action?

– Does the action have a primary effect that neither advances nor inhibits religion?

– Does the action avoid an excessive government entanglement with religion?

See Lemon v. Kurtzman, 403 U.S. 602 (1971);  Zelman v. Simmons-Harris, 122 S.Ct. 2460, 153 L.Ed. 604 (2002).

2. The Free Exercise Clause – Congress shall make no law prohibiting the free exercise of religion. Government, including schools, may not interfere with students’ rights to practice their religion.

This issue comes up in many ways:

– the right to wear certain clothing:  Muslim head scarves; Christmas sweaters

– student clubs which advocate a particular religion

– free speech claims involving religion

– graduation speeches by students, graduation songs

– religious displays on school property (painting crosses; inscriptions)

– mandatory attendance. Wisconsin v. Yoder, 406 U.S. 205(1972)(Amish need not send children to school after eighth grade)

– objections to certain curriculum, ex., sex education. In Connecticut, the legislature has passed Gen. Stat. §10-16e which provides that no student shall be required to participate in any family life program in the public school. Conn. Gen. Stat. §10-19 allows a parent to exempt a child from instruction relating to AIDS.

In Connecticut, the legislature has passed Gen. Stat. §52-571b, which authorizes a lawsuit if a state or political subdivision of a state has burdened a person’s exercise of religion.

3.  Equal Access Act, 20 U.S.C. §4071-4074(1984):

It shall be unlawful for any public secondary school which receives            Federal financial assistance and which has a limited open forum to deny         equal access or a fair opportunity to, or discriminate against, any students           who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at   such meetings.

The Equal Access Act permits Bible study clubs in secondary schools after school hours if the school allows non-religious student groups to meet at that time.  See Board of Education v. Mergens, 496 U.S. 226 (1990)( the Equal Access Act is constitutional).

CONCLUSION

If a school’s actions are seen as an endorsement of a religion, they will be held to violate the Establishment Clause of the First Amendment. Students have the right to the free exercise of their religion in the school setting. A school may not interfere with a student’s right to the free exercise of religion unless there is a compelling state interest. This is a volatile area of law. Recent caselaw must be consulted whenever a school is confronted with a case involving a student’s right to freedom of religion.

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