Social Unrest, COVID-19 and School-Required Masks: What Could Possibly Go Wrong? | RumbergerKirk

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With public schools back in session, there is a new must-have accessory for students: masks. Outside of school, many have used this highly visible accessory to express personal beliefs, some of which are controversial. This leaves school districts to wonder: can public schools limit the use of masks that contain messages that are likely to cause a substantial disruption in schools? Like any other question involving school speech, first amendment jurisprudence tells us that it depends.

The First Amendment, as incorporated against the States by the 14th Amendment, provides that “Congress shall make no law… abridging the freedom of speech.” The Supreme Court has held that “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969). The Court in Tinker, stressing that “state-operated schools may not be enclaves of totalitarianism,” held that school officials cannot suppress student speech unless it threatens substantial disruption in the school environment. In our current political climate, it has never been more apparent that political speech has the potential to substantially disrupt the classroom and interfere with the work of the school.

While Tinker recognizes that schools have a substantial interest in preventing such disruption or interference, fear of disruption alone “is not enough to overcome the right to freedom of expression.” Thus, school rules that target passive political expressions are often struck down:

  • Shirt with negative and insulting depictions of the president and images related to drugs cannot be censored by school where it did not cause any disruption to classroom activities. Guiles ex rel. Guiles v. Marineau, 212 F.3d 320 (2d Cir. 2006).
  • Stickers worn by students protesting replacement teachers during a teacher strike with the message “I’m not listening scab” were not inherently distracting and could not be banned absent proof of actual interference with school activities. The court also indicated that school officials may have even less discretion where the political speech is directed against the same individuals seeking to suppress the speech. Chandler v. McMinnville Sch., 978 F.2d 524 (9th Cir. 1992).
  • “Freedom Buttons” displaying the message “one man, one vote” are protected and cannot be banned where school does not show the buttons “hampered” it from “carrying on its regular activities.” Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966).

On the other hand, while Tinker holds that “students do not shed their constitutional rights at the schoolhouse gate,” there are absolutely limitations on free speech that are specific to the school environment. For example, bans of displays of the confederate flag have been upheld by courts based on the rationale that “certain symbols that have become associated with racial prejudice are so likely to provoke feelings of hatred and ill will in others that they are inappropriate in the school context.” Scott v. School Board of Alachua County, 324 F.3d 1246 (11th Cir. 2003). In light of this, it is safe to assume that symbols that have historically been associated with hatred against certain groups can fairly and legally be prohibited from school grounds.

However, difficulty arises when different groups and individuals have different ideas about which symbols represent “hatred and ill will.” In the heated political climate of our times, there are many people who view any opposing views from their own as highly inflammatory. Where situations arise in which a student’s political message is not well taken by others in the school environment, it is prudent for schools to take a careful look at whether the speech or symbols are truly representative of “hatred and ill will,” or simply a matter of disagreement.

More recently, the Supreme Court allowed school censorship of speech that encourages illegal drug use.  Morse v. Frederick, 551 U.S. 393 (2006). In Morse, students unfurled a banner that read “BONG HiTS FOR JESUS” during a school-sponsored event. The school principal instructed the students to take down the banner, believing the message to inappropriately encourage the use of illegal drugs. When one student refused, the banner was confiscated and the student was suspended. The Supreme Court ultimately upheld the school action.

While the banner was displayed at a school-sponsored event — where typically First Amendment rights enjoy fewer protections — the court’s ruling was not limited to the school-event scenario. The court acknowledged that schools cannot prohibit speech merely because it is offensive, nor solely out of fear that it may cause substantial interference with school activities. However, the court found that schools have a legitimate concern in preventing illegal drug use that “extends well beyond an abstract desire to avoid controversy,” especially where the school has an established policy prohibiting such messages.

While Morse did not address political speech directly, it is instructive for schools considering how to prepare for particular expressions on newly required face masks. The problem of controversial political messaging on students’ masks may be easier to prevent in schools that already have a uniform policy, as such schools can more easily justify a rule requiring solid colored masks. Such policies are also less likely to run afoul of Tinker, which was concerned with regulation of “particular” political messages rather than a politically neutral school policy. Nevertheless, in schools that do adopt a policy requiring solid-colored masks in the absence of a previously existing uniform policy, it is advisable that the schools be prepared to provide replacement masks, rather than sending students home or doling out punishments for violations of the policy.

In all situations involving the regulation of student speech, reasonableness is key. Our constitution protects students’ rights to free speech, but this right must be balanced with preserving the learning environment for the benefit of those same students. Schools would be wise to remember that the test for what types of speech can be prohibited in schools is never what may offend the listener, or in this instance, the viewer. Schools should deal with every situation on a case-by-case basis, keeping the time-tested Tinker principles in mind.

This article was originally published in Business Alabama on September 24, 2020 and is republished here with permission from the publication.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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