Kansas ACLU Urges Caution and Tolerance in Student Discipline
May 18, 1999
Since the tragic shootings in Littleton, Colorado, offices of the American Civil Liberties Union throughout the country have been swamped with calls from students and their parents complaining that schools have been violating student First Amendment rights. Our office in Kansas City has not been immune to these calls as we have received inquiries from throughout Kansas and Western Missouri. Many of the calls we have received have come from parents whose sons or daughters have been suspended or expelled from school for doing nothing but exercising their right to express themselves freely.
In one example, a student was suspended for ten days because he posted a personal web page critical of his school and his town. In another case, a student was expelled for the remainder of the year because he expressed the viewpoint that he enjoyed watching things explode. We have received many calls regarding suspension or discipline of students based on the clothes they wear, the literature they read, and the music to which they listen.
In each of these instances, and in many other cases, students have been punished for expression that is nowhere close to the line of unprotected or potentially disruptive speech. Under our legal system, it has long been recognized that students do not shed their First Amendment rights at the schoolhouse gate. Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). It is equally clear, however, that a student’s right to free speech is not without limitation. Id. In order for school officials to justify the prohibition of student expression, they must be able to show something more than a mere desire to avoid discomfort and unpleasantness. Id. at 509. They must be able to show that a student’s expression materially disrupts class work or involves substantial disorder or invasion of the rights of others. West v. Derby Unified School District, 23 F.Supp. 1223, 1232 (D.Kan. 1998). The discipline of students, based simply on a fear or dislike of their viewpoints or appearance, is unacceptable under our Constitution.
We write to you today to express our concerns over the recent backlash that has been taking place against our young people. The crackdown on student free expression over the last four weeks has been unprecedented in our country’s history. While schools should exercise caution and restraint before deciding to punish a student because of his or her expression, we ask you direct the schools in your district to adopt positive solutions over punishment.
Schools should set the standard for reasonable responses because there are always collateral consequences to punitive measures. In fact, punishment may do more harm than good. For example, banning certain clothing would further alienate some students, and banning extremist expression of opinion will make it harder to identify problem kids for positive outreach.
Implicit in the Bill of Rights is a value that we must teach all our children, the value of tolerance. Respect for diverse opinion, respect for those who are of different races, genders, and religions are at the heart of the value of tolerance. Teaching tolerance of difference, respect and encouragement of differing points of view will, in the end, provide more security for society than chilling student speech, limiting dress, and restricting exposure to music.
Punishing students who may already feel alienated does not teach our children tolerance. It perpetuates the view that intolerance of difference is permissible. We are concerned that by responding to those who may be considered outside the mainstream with actions that may further alienate them in no real way protects anyone or anything. It simply further alienates those who already do not feel included. Schools can lead the way by teaching tolerance and respect, and demonstrating that “”different is not dangerous.””
We recognize that threats and violence should be addressed seriously by school officials, and we recognize schools have an obligation to protect its students. True threats should not go ignored, but statements which are clearly hyperbole cannot constitute the basis for discipline. Whether a statement is a true threat depends on “”whether a reasonable person would foresee that the statement would be interpreted by those whom the maker communicates the statement as a serious expression of intent to harm or assault.”” Lovell v. Ponway Unified School District, 90 F.3d 367 (9th Cir. 1996). We ask that you and your schools please consider this standard before disciplining students for the statements they make.
Attending to real threats, and working at having a school environment with tolerance and a respect for difference, in our view, offers greater security for our schools and our society.
Eddie M. Lorenzo, Esq.
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