Thanks to a post from the Comic Book Legal Defense Fund, I learned that last week a Fourth Grader filed a First Amendment claim against her school. I draw the facts from her complaint with the caveat that the school has not yet filed a response, though it has denied the allegations generally. Unfortunately, I don’t see much hope for the lawsuit but victory is not always the only benefit of litigation.
The student, who I will refer to as Super Kid, is a student at Anderson Mill Elementary and her class was assigned to write a paper on any topic addressed to society. Super Kid wrote, verbatim:
I don’t know if you know this but peoples view on Tran’s genders is an issue. People think that men should not drees like a women, and saying mean things. They think that they are choosing the wrong thing in life. In the world people can choose who they want to be not being told that THEIR diction is wrong. I hope people understand that people can hurt themselves from others hurting their feelings. People need to think before they speak because one word can hurt someone’s feelings. We need to fix this because this is getting out of hand.
The goal of this assignment was to collect the student’s submissions and publish them as a collection to send home to families. Upon receiving the submissions, the principal concluded that Super Kid’s paper was inappropriate and directed the teacher to have her submit an alternative, this time on bullying. Super Kid’s mother inquired about the reasons for this decision and was told that the principal worried the paper “would ‘make other parents upset,’ ‘would create a undesirable situation at the school,’ was ‘not acceptable’ and that it was ‘not age-appropriate to discuss transgenders, lesbians and drag queens outside of the home.’ … Principal … further proclaimed that ‘due to the type of school this is, the people that work here and the students and families of the students that go here, the topic would be disagreeable.’”
So the principal concluded that the speech would be unpopular and this is likely true. The fact that Super Kid’s letter was supportive of trans rights is key. As homophobic attacks have become less popular in mainstream society, cultural conservatives have shifted to a transphobic campaign that hits schools often. I’m currently working through a massive set of files on a controversy out of California where a kindergarten teacher read I am Jazz to a class when it was brought in by a trans student. While she eventually won a teacher of the year award, she was also subjected to emails from angry people such as “[p]lease take your version of being a recipient of raw sewage and keep it in your own sick mind. Do not press it on young children. You should know better but evidently you don’t have the brain to know right from wrong.” The Pacific Justice Institute sunk to an impressive low, suggesting the the family of Jazz Jennings should have been investigated because Jazz is trans: “In a widely-distributed interview, author Jazz Jennings details a level of sexual precociousness that should concern any parent or teacher. Had this information been shared with a responsible adult at the time, rather than having later been turned into a book, it should have been red-flagged as bearing the hallmarks of likely sexual abuse.” As I’m currently studying similar controversies, I have no doubt that the principal would have received a number of angry messages attacking immorality in the schools and complaining that any knowledge of trans people, including their simple existence, is inappropriate for children.
The foundation of student speech rights is Tinker v. Des Moines (1969), which celebrated its 50th anniversary on 24 February 2019. The Tinker children were punished for wearing black armbands as part of an anti-war protest. The Court famously declared that neither “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” For a school to punish speech “it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” It must demonstrate that the speech “would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’” If Tinker governs, Super Kid’s letter is surely protected. She spoke about an issue of significant political importance and the only justification for restriction was that the school might receive angry messages. While these messages would almost certainly have come, the angry community responses to the Tinker children’s anti-war speech did not amount to a material disruption of the school’s discipline and it is difficult to imagine any significant differences here. Super Kid’s letter was censored because the principal did not want to deal with the hassle of responding to a few messages.
Unfortunately for student speech, the last 50 years have not been kind to Tinker. The Court has never again directly supported such rights. For Super Kid’s claim, the key decision is Hazelwood School District v. Kuhlmeier (1988). There, a high school principal decided to remove stories about teen pregnancy and divorce from the student newspaper. In her wonderful Lessons in Censorship, Catherine Ross noted that the principal’s rationale for this shifted many times before settling on concerns about journalistic ethics in the pieces; this rationale was further undermined when a local paper published one of the censored stories as originally submitted to the school paper. The most likely reason for the principal’s action is that he feared public outrage when parents read stories on these topics, avoiding angry calls from parents seems to motivate many school administrators. Despite the fact that this was a classic example of a prior restraint—the censoring of news before publication—and that there was no evidence of a likelihood of disruption, the Court upheld this censorship by creating a new category of student speech law: “school-sponsored” speech. Where the speech is part of the curriculum, supervised by faculty, and can be reasonably viewed as representing the school as a whole, then it can censor any material “so long as their actions are reasonably related to legitimate pedagogical concerns.” As Ross concluded, “Hazelwood almost always functions as the equivalent of a ‘get out of jail free’ card for administrators.” Reasonableness is a weak standard and it is easy to come up with a justification that will satisfy the courts. While not exactly a newspaper, the assignment in Super Kid’s class was curricular and intended to be collected for distribution at the school’s expense. Absent unusual additional facts, I don’t see much hope of surviving this doctrine, though as I tell students my success rate at such predications is not stellar.
Even if I’m correct, the lawsuit is still worth bringing. Legal victories are not the only reason to engage in litigation. Lawsuits help to bring pressure upon governmental institutions through publicity. The censor prefers to live in the shadows and exposing them to legitimate public ridicule is enough of a reason to file the suit. More importantly, standing up to such censorship is a necessary act of education. The public education system has many purposes and a major one is to train the next generation of citizens. The ability to participate in politics and civil society is a learned behavior and such participation requires training children in how to engage with ideas, even controversial ones. When educators silence speech because it will be controversial to some members of society, we teach only conformity to the majority or fear of a vocal minority. We teach that silence is to be preferred to speech. That is a dangerous lesson to pass along to children and fighting back is always justified even if a lawsuit may fail.