By Michael P. Stafford, Esq.
The free-speech rights of a student is the topic of the day in Colorado, where a 5th grader has been suspended for wearing a tee-shirt emblazoned with the slogan “Obama is a terrorist’s best friend.” The student’s family claims that his First Amendment right to free speech is being trampled. Conspicuously absent from news coverage of this developing story is any detailed description of the tee-shirt causing “substantial disruption” to the school.
Did the school administration make the correct decision in suspending this youngster?
Under well-established Supreme Court precedent, public school administrators may regulate student speech protected by the First Amendment only in three circumstances: (1) when the speech is substantially disruptive; (2) when the speech bears the imprimatur of the school (such as in a school newspaper or yearbook), or; (3) when the speech is lewd or plainly offensive. In particular, under Tinker v. Des Moines, 393 U.S. 503 (1969), student speech may be regulated only if the school has a well-founded expectation that the speech will cause substantial disruption of the school’s operations or interference with the rights of others. The expectation of disruption must be a specific and significant fear of disruption, not just some remote apprehension of disturbance. In this regard, speech is not disruptive merely because it causes offense or hurt feelings in listeners.
Moreover, any regulation of student speech must also be “content neutral.” In Tinker, which involved students wearing black armbands to school to protest the Vietnam war, the Supreme Court observed that the school had singled out the anti-war black armbands for prohibition but had not forbidden other controversial or political symbols. As many courts have noted in a variety of contexts, restrictions on speech because of its message or content are presumed to be unconstitutional.
Here, the constitutionality of the school’s action in suspending the student will likely turn on whether the tee-shirt caused, or was likely to cause, a substantial disruption to the educational environment. Any attorney representing the student will also look closely at the other types of political apparel students have worn in the past without discipline by the school administration to discern whether the student has been discriminated against based on his viewpoint.