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Search And Seizure In Public Schools

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The purpose of this paper is to discuss public school districts' limits on "hate" speech and

reconcile those limits with the decision in Tinker v. Des Moines.

Importance to Education

To avoid disturbance and disruption and to create and maintain a safe learning environment, public schools often adopt policies that forbid certain acts on the part of students. Included in many of these policies are prohibitions on hate speech. The opinion of the court in Tinker v. Des Moines (1969) broadly stated that students retain their first amendment rights when they enter the school, but the breadth of that statement is not without limit. Schools may narrowly curtail free speech rights to the extent necessary to maintain good order and prevent distractions and disturbances in the school. (Tinker v. Des Moines, 1969, p. 514)


The Seattle School District has adopted prohibitions against hate speech in its Code of

Prohibited Conduct. One of the groups impliedly protected by the district's policy are gays and

lesbians. Does the district's policy infringe upon a student's right to criticize homosexuals on

moral or religious grounds? Two recent opinions from separate federal circuits offer conflicting


Identification of Duties and Responsibilities

School districts and schools set general policy regarding the curriculum and the general conduct of students and teachers in schools. School administrators, staff and teachers are required to follow and enforce appropriately the district and school policies.

Teachers are sometimes caught in between the school authority, their students, and families. Teachers' curriculum choices can require students to delve into sensitive or controversial areas, often creating conflict.

Students attend schools for academic learning and socialization to function as a citizen in a pluralistic society, while trying to survive huge emotional and physical changes.

Parents and families bridge the gap between the community, the students and the school by encouraging their children academically and in the ways of good citizenship.


In its Code of Prohibited Conduct, the Seattle School District has prohibited "Gang/Hate Group Activity" which includes, but is not limited to: "Advocating distcrimination, intimidating others, soliciting or recruiting members to the group or organization." A "hate group" is "defined as a group of three or more persons with identifiable leadership who regularly conspire and act in concert mainly for criminal purposes." (Code, 2006, p. 11-12) While not expressly protecting any particular group, current convention would include homosexuals as one of the groups falling within its protection.

In the past, such zero- tolerance policies targeted clear evils such as drugs and weapons in schools. More recently such prohibitions have been extended to bullying and hazing, and in the aftermath of events such as the Columbine massacre, hate speech. (Hils, 2001) In theory, such absolute prohibitions on speech are laudable attempts to help schools get rid of speech thought to be threatening or prone to violence. However, absolute prohibitions on speech don't allow for reason or discriminative thought, and exclude along with the forbidden speech complaints or protests of societal shortcomings or creative expressions of anger. (Hils, 2001). Moreover, such intolerant policies don't allow students to think critically about their acts or speech, or teach young people the skills to cope and coexist in a sometimes difficult world.

The threat of liability is probably what is driving such absolute policies. If the negligence standard is what a reasonable person would do given the post-Columbine possibility of violence in schools, then an ounce of prior prevention is cheaper than a pound of subsequent damages. This is especially true when the damage award in a speech-infringement case is likely much, much less than an award in a negligence case arising out of physical or emotional injury to students.

Tinker acknowledged that school authorities could prohibit speech at school under the confined circumstances when the authorities could reasonably "forecast substantial disruption of or material interference with school activities." Conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others is of course, not immunized by the constitutional guarantee of freedom of speech." (Tinker v. Des Moines, 1969, p. 509)

A troubling issue for schools now is how to deal with the issue of homosexuality. The struggle for gay rights often causes heated opposition, particularly on moral grounds from members of religious groups. (Essex, 2005, p. 43) Schools have an obligation to maintain a peaceful environment free of significant disruption, while supporting students' rights of free speech. Schools should ". . . create an environment that is characterized by respect for individual views and divergent forms of expression within reasonable limits. The challenge seems to involve achieving a reasonable balance between an orderly educational environment and respect for the free speech rights of students. Precisely, where do they draw the line?" (Essex, 2005, p. 44)

Two recent federal appellate decisions highlight the difficulty in drawing the line.

In 2004, the student Gay-Straight Alliance at Poway High School in Poway, California held its second annual "Day of Silence" to promote "tolerance of others, particularly those of a different sexual orientation." The previous year's observance had been marked with fights, arguments, and counter protests by straight students and resulted in several suspensions. Tyler Harper wore a t-shirt to school that carried several messages:

"I will not accept what God has condemned."

"Homosexuality is shameful 'Romans 1:27'"

The next day, Harper wore the same shirt and added to the front,

"Be ashamed, our school embraced what God has condemned."

Harper refused to take the shirt off when told it


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