Speech Codes in Education

Speech Codes in Education

A Chapter by Debbie Barry
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An essay about speech rules and codes in American public schools, and the power and limits of the constitutional right to free speech. Written for HIS 303: The American Constitution.

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Speech Codes in Education


3/15/2010


 

Although it is well known that the First Amendment to the U.S. Constitution, which is often treated as the crown jewel in the Bill of Rights, protects the freedoms of speech and expression for Americans, that constitutional protection is frequently not extended to the speech and expression of students in America’s schools, colleges, and universities.  This seeming inconsistency not only stands up to scrutiny under the law, but is popularly accepted in the spirit of political correctness, but legality and acceptance do not make the practice right.  American students deserve to be protected by the same rule of law that applies to Americans who are enrolled in school.

The erosion of students’ rights to free speech and expression has been progressing over the last two decades or longer, with “federal courts … erod[ing] the First Amendment protection of students' speech in the public schools” (LoMonte, 2009, para. 3).  It is noteworthy that the restriction of students’ rights is not happening only within the schools, but that it has been fed by the actions of the federal courts.  It is also important to note that “private colleges are generally not bound by the First Amendment” (Gould, 2001, para. 24).  The Constitution only limits restrictions imposed by the federal government, and, by extension, those schools that operate with federal funds; the government has no power to influence speech rules in private.  Therefore, this discussion will only deal with those public educational institutions that are subject to constitutional law.

          Not all schools have restrictive speech codes, nor should they have such codes if they truly intend to educate, inform, and shape students, but many schools, even public schools that are subject to constitutional law, not only have speech codes but have added such codes in recent decades.  Jon B. Gould (2001) reports “[b]y 1997 the percentage of schools with speech policies had jumped 11% [since 1987], and … offensive speech codes had tripled” (para. 44).  One explanation for this increase is that “high-level administrators … instigated hate speech regulation … [because they] sought to diffuse racial unrest on campus and deliver ‘symbolic, perhaps even cynical’ gestures to appease marginalized groups and keep pace with … [a] ‘mainstream’ academic administration” (King, 2006, para. 3).  It is one thing to restrict hate speech that is directed at a particular person or group, or that represents or incites violence and, in fact, it is reasonable that “public entities may prohibit words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace’” (Gould, 2001, para. 21), however; it is quite another thing to restrict all speech that might be perceived as offensive to anyone, and many schools that enacted the former restrictions went too far and enacted the latter restrictions.  As Bryan R. Warnick (2009) writes in the Educational Researcher, “people do not have a right to live forever unoffended” (para. 31).  In educating students, schools at all levels prepare students for life in the real world of adult life, and being protected from any possibility of offense does not prepare students to face the world; rather, students need to be taught to face potentially offensive speech and other forms of expression with grace and dignity, and to be taught how to glean what is good and useful from that speech that might tend to offend.  The censorship inherent in institutional speech codes does not allow such teaching and learning to occur.

          In his article for the Newsletter on Intellectual Freedom, Frank D. LoMonte (2009), tells us that “[f]orty years ago the Supreme Court resoundingly affirmed that young people attending public schools do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’" (para. 1).  He goes on to tell us that “the Supreme Court recognized … that … administrators may restrict student speech only if such speech ‘materially and substantially disrupts the work and discipline of the school’" (LoMonte, 2009, para. 8).  By these reports, students should enjoy the same protections of their speech and expression that are enjoyed by anyone who is not enrolled in school, and that is the way it ought to be.  Every student attending a public institution, from the youngest preschooler to the eldest college or university student, deserves to be able to express his or her ideas and opinions, barring only those expressions that are almost universally rejected as “fighting words,” and those that are hate speech directed toward a particular person or group, or that represent or incite violence, as discussed earlier.  Any other restriction also restricts the free exchange of ideas, the free flow of discussion and academic inquiry, and the free development of the personalities and social skills of the students who are thus restricted.  As Patrick Tucker (2006) writes, “speech codes … not only prohibit students from practicing their constitutionally protected rights, but they also undermine the very mission of higher education. (para. 8).  Sadly, this is not the case in many of America’s schools, and LoMonte (2009) reports that “courts are increasingly willing to tolerate school punishment … [for] speech that would enjoy full First Amendment protection if written by anyone not enrolled in school (para. 2), and that “students never … have First Amendment rights coextensive with those of adults. (para. 22).  In fact, Patrick Tucker (2006), writing for The Futurist, reports that “students and faculty have been punished for engaging in what would be protected speech off campus … [including] eviction from housing, suspension, mandatory psychological counseling, and threats of expulsion” (para. 5).  An atmosphere of fear, especially the fear of exploring and expressing ideas and concepts that come out of academic study, will retard students’ ability and motivation to take part in discussion with their peers, and even their ability to learn.

          This brings out two specific concerns about the control of speech in schools: that there is a distinct disparity between speech by students and speech by non-students; and that there is an apparent assumption that all students are children, to be treated differently than adults are treated.  The first concern suggests that, by being enrolled in school, students become less valuable citizens than people who are not students.  First Amendment rights are stripped from students as they are not stripped from any other class of citizens.  Making the problem worse is the fact that attendance in school is mandatory for students through secondary school, so students are unable to avoid the circumstance that strips away their rights.  In a country in which so many have fought and died to protect the freedoms of the citizens, it borders on criminal for the federal government, through its agents in the education system, to limit or to deny the full freedom of speech and expression to any of its citizens based on their status as students.  The second concern may be viewed in two ways.  Either the government fails to recognize that many students, in fact, the majority of students, attending colleges and universities, as well as a number of high school students, are adults, having reached the age of majority at age 18; or the government finds that it is acceptable to treat adult students as though they were children, further stripping away their constitutional rights based solely on their role as students.  Regardless of which interpretation is correct, or whether the truth is some combination of the two options, it is an untenable situation.  An adult student, by the simple definition of being an adult, must “have First Amendment rights coextensive with those of [other] adults. (LoMonte, 2009, para. 22), just as an adult doctor, an adult laborer, and adult stay-at-home mother, an adult welfare client, or even an adult felon has such rights.  The operative word in each of these designations is “adult.”  It might be true that a child does not have the same rights as an adult, but it is a gross oversimplification to assume that a student is the same as a child.

          Aside from the simple, and supposedly unalienable, rights of students to have their freedom of speech protected within the venue of the public school, there are additional reasons that such protection must be assured for students.  One very simple reason, which is often overlooked, is that “[c]hildren and adolescents can know more than adults about specific issues” (Warnick, 2009, para. 18).  Students, including those who are children, have knowledge, ideas, viewpoints, opinions, and dreams that deserve to be heard.  Often, such speech goes beyond deserving to be heard and needs to be heard by parents, by administrators, and by society.  Unfortunately, under the rule of speech codes in the schools, students who attempt to inform society are often silenced and punished for their speech.  In one case in which students wrote articles for a school newspaper, a “high school principal ordered the removal of [the articles in] … which teenagers discussed their perspective on divorce, pregnancy, and other social issues” (LoMonte, 2009, para. 11).  In a time in which parents are urged to encourage their children to talk about their lives and their thoughts, it is unconscionable to quash a student’s attempt to express his or her perspective on a difficult topic of development and family life.  Instead, teachers, administrators, and legislators need to encourage students to express themselves honestly, thoughtfully, and creatively, so that students may have a safe outlet for such expressions, and so that school and government authorities may better understand what interests, motivates, and concerns students.

          Similarly, rigid speech codes prevent students expressing their emotions, including potentially violent emotions, through non-violent, creative media.  LoMonte (2009) writes that “the Fifth Circuit found no constitutional violation in a … decision to remove a high school sophomore from school and transfer him to a disciplinary alternative school in response to a violent fantasy story written in a notebook the student was carrying in his school backpack” (para. 18).  Students need safe outlets to express their emotions, and creative writing is an excellent vehicle for self-expression, just as painting, sculpture, music, and dance are creative options that should be encouraged and nurtured in students, not repressed and punished.  In this instance, the student might have benefitted from talking to a mental health worker about the emotions behind his fantasy story, but moving him to a school that would leave a permanent stain on his academic record and future résumé was an extreme response to the situation.  The student in question should have been protected by the First Amendment in his writing of a fantasy story, but he was denied this constitutional right because of his status as a student.  Had this student not been a student, a story written in a notebook that he kept in his backpack would have been protected speech.  Instead, since “[c]hildren outside school environments … have rights that children within school environments do not … [and] even adults who are students might have their free expression limited in school contexts” (Warnick, 2009, para. 22), this student’s private expression was not allowed to be protected speech.

          When students’ speech and, by extension, writing and art, is not protected by the First Amendment, even when that speech is private, as in a story in a notebook, an email message, or a text message, students are held to a different standard than other Americans are held to.  Even though the speech is intended to be private, if it originates with a student, then “the speaker is charged with anticipating that his message will be shown, without his authorization, to people with whom he never intended to communicate (LoMonte, 2009, para. 22). In the case of electronic speech, such as email, text messages, and messages on social networking sites, as well as blogs and Web sites, that are produced by students, “online speech is punishable as on-campus speech because the effects of the speech will be felt on campus … [and is] even more perilous … [because it] can apply equally to all speech, online or not” (LoMonte, 2009, para. 22).  This is dangerous to students’ free expression, as it can reasonably be argued that any speech or writing by anyone, whether or not a student, may be felt on campus.  News reports about the race, gender, past experiences, or approach to the issues of a presidential candidate should be expected to be felt on campus.  News of the Challenger disaster, of the dismantling of the Berlin Wall, of the World Trade Center disaster, of the sexual indiscretions of the President of the United States, and of various school shootings have all reached school campuses over the past several decades,  but the writers of these examples of speech and expression have been protected because the originators were not students.  On a smaller level, LoMonte’s quote, above, makes it risky for a high school student to tell his friends at the local pizza parlor that he and his girlfriend broke up, because the effects of his off-campus speech are likely to be felt on campus.  If a student posts on her blog that her boyfriend proposed to her at the prom that night, the effects of her off-campus speech are likely to be felt on campus.  It is even intimidating for a student to consider addressing a school board meeting about his knowledge of the deplorable conditions in the school’s bathrooms, or about her observations about on-campus drug use, because the effects of that off-campus speech is certain to be felt on campus.  As Mary McCarthy (2009) writes in the Journal of Law and Education, “schools are not required to show that speech will cause disorder, disturbance, or material disruption of class work or school discipline for it to be curtailed” (para. 16), and LoMonte (2009) writes that “Tinker permits not merely preemptive action to stop a potential disruption, but after-the-fact punishment of a potential disruption that never came to pass” (para. 32).  In the face of this, students are vulnerable to punishment in the schools for any and all speech, whether it is hate speech, offensive speech, or merely speech that might have an effect at school, no matter where the speech takes place, or in what context.  Such restrictions are potentially dangerously repressive of students, and may be expected to impede the work of educating students as they live in fear of what will happen based on anything the students say.  In order to protect students, and to promote education and learning, it is necessary to protect student speech.  In fact, “the compulsory nature of schooling seems to require some heightened protection of student speech rights” (Warnick, 2009, para. 32).

          Those who support rigid speech codes in schools sometimes argue that “[c]hildren … lack the rational ability that is a prerequisite to the meaningful application of traditional free speech theories" (Hafen, 1987, cited in Warnick, 2009, para. 16).  However, Warnick (2009) goes on to point out that “[i]f we assume that all adults have the intellectual faculties necessary for free speech, we should … grant that children, too, may … possess such capacities and may … deserve access to speech rights” (para. 19).  I disagree with Hafen that all children inherently lack the rational ability that is possessed by all adults, or even that all adults possess this rational ability.  It should not matter, in the end, how much rational ability a child possesses, when protecting First Amendment rights.  The Framers did not selectively protect the speech of only the most rational citizens.  The Framers did not stipulate that the U.S. Constitution and the Bill of Rights applied only to those persons who were not enrolled in school.  The Framers did not even state that speech would be protected only for adults and not for children.  Instead, the Framers designed the supreme law of the United States to protect the rights of every United States citizen.  Although the protection of the First Amendment over speech and expression is not presently extended to students in many of the public schools, colleges, and universities in the United States, the language and the spirit of the First Amendment include these students in its protection.  Speech codes at private educational institutions stand up to scrutiny under constitutional law, but speech codes at public educational institutions must collapse under such scrutiny.  In order to guard education, students must be free to speak without fear.  Students’ speech rights must be protected under the First Amendment.

 


References


Gould, J.B.  (2001).  “The precedent that wasn’t: College hate speech codes and the two faces of        legal compliance.”  Law & Society Review, 35(2), 345-353.  Retrieved    February 24,           2010, from ProQuest database.


King, R.D.  (2006, September).  “Speak no evil: The triumph of hate speech regulation.” Law & Society Review, 40 (3), 734-736.  Retrieved February 24, 2010, from ProQuest database.


LoMonte, F.D.  (2009, May).  “Reaching through the schoolhouse gate: students’ eroding     First Amendment rights in a cyber-speech world.”  Newsletter on Intellectual     Freedom, 58 (3), 73-83.  Retrieved February 24, 2010, from ProQuest database.


McCarthy, M.  (2009, October).  “Curtailing degrading student expression: Is a link to a disruption required?”  Journal of Law and Education, 38 (4), 607-621.  Retrieved   February 24, 2010, from ProQuest database.


Tucker, P.  (2006, March/April).  “Speech codes and the future of education.”  The Futurist, 40     (2), 1.  Retrieved February 24, 2010, from ProQuest database.


Warnick, B.R.  (2009, April).  “Student speech rights and the special characteristics of the       school environment.”  Educational Researcher, 38 (3), 200-215.  Retrieved         February 24, 2010, from ProQuest database.




© 2017 Debbie Barry



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Debbie Barry
Debbie Barry

Clarkston, MI



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I live with my husband in southeastern Michigan with our two cats, Mister and Goblin. We enjoy exploring history through French and Indian War re-enactment and through medieval re-enactment in the So.. more..

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