DIALOGUES ON FREEDOM 2015 Manual and Reference

DIALOGUES
ON FREEDOM
2015
Manual and Reference
Materials for Volunteers
Presented by the Los Angeles County Bar Association in
cooperation with the Los Angeles Unified School District and
the Los Angeles Superior Courts
GENERAL TEACHING TIPS
How to be a Great Dialogue Leader
1. The most important thing is to be a moderator, not a lecturer.
2. Before you start, introduce yourself. Tell the students who you are and why
you are there.
3. Remind the students to be respectful. There are no right and wrong answers in
this exercise, just opinions.
4. Be flexible. You probably will not have time to discuss all of the situations, so
select a few topics you want to make sure you discuss. Or ask the class to vote
on which topics they most want to discuss. Start with the topic that receives the
most votes and work your way down.
5. Try to engage ALL of the students in the dialogue. Do not let one or two
students dominate the discussion. If this happens, try the following:
• Take a poll of the classroom with a show of hands.
• Ask other students to respond to opinions already expressed.
• If students are providing physical cues like nodding or frowning, ask them
whether they agree with the recent statement or if they have anything to
add.
• Don’t wait for a volunteer. Call on a particular student.
6. Use visual aids. Write key words or list student answers on the marker or chalk
board. This breaks up the monotony of talking, giving the students a chance to
digest the discussion and giving them something to refer to later.
7. Don’t talk like a lawyer. Remember that these students have not been to law
school. Keep your discussion at their level. Also, remember that English may
not be the primary language for some of the students.
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SITUATION #1:
Hiram Johnson High School’s Gang Problem
Sample Discussion Questions
Try taking a poll. Ask students to raise their hands—How many of you think it was okay
for the high school to ban the T-shirts? How many think it was not okay? Then ask specific
students to tell you why.
Try changing the hypothetical. What if the high school only banned the red basketball Tshirts? Does that make a difference? Why? Why not?
Can the school tell you what you can and cannot wear to the grocery store? Can the
grocery store owner tell you what you can and cannot wear in his or her store?
Try linking the hypothetical to a real-world event. A high school administrators in San
Francisco sent home students wearing American flag bandanas and T-shirts on Cinco de
Mayo. Do you think that was okay? For news coverage, go to
http://www.foxnews.com/us/2010/05/06/california-students-sent-home-wearing-flagscinco-mayo/
Summary of Applicable Law 1
This issue was first brought up when students wore black armbands to school to protest the
Vietnam War. After several high school students were suspended for wearing the armbands, the
Supreme Court found the suspension was unreasonable and violated the students’ First
Amendment right to freedom of expression. The Court held that students do not leave their
Constitutional rights at the school’s gates. However, schools may limit those rights if they
reasonably believe the activities or speech “substantially interfere with the work of the school, or
impinge upon the rights of other students.” This standard applies when school policies are
political in nature, and creates a relatively high threshold to pass constitutional scrutiny. 2
Alternatively, when school policies are not implemented to regulate political viewpoint, but
are rather viewpoint neutral, the courts rely on intermediate scrutiny. The restriction must (1)
further an important government interest; (2) the government interest must be unrelated to the
suppression of free expression; and (3) the restriction on freedom of speech is no greater than
is essential to the furtherance of that interest.
1
Even though this exercise is not about who is “right” in the legal sense, it may be interesting to
let the students know the current state of the law after your discussion concludes.
2
For instance, the “substantial disruption” test requires the school demonstrate more than an
undifferentiated fear of disturbance, and commands that application of school bans be consistent
across forms of expression that are similar in nature. Nonetheless, the school administration need
not wait for an actual disruption to materialize before acting.
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In total, since the Vietnam War case, the Supreme Court has identified four categories of
speech or expression a public school can limit: (a) speech that constitutes a substantial
disruption; (b) is offensive, or a reasonable observer would interpret it as such; (c) carries the
imprimatur of the school and undermines the school’s basic educational mission; or (d) could
be reasonably interpreted as advocating for illegal drug use. The last exception is found in
the most recent Supreme Court case touching on this issue, the “Bong Hits 4 Jesus” case. In
that case, the Court found that preventing illegal drug use was a compelling interest of school
districts, making the student’s banner, which arguably advocated for illegal drug use,
appropriate for discipline.
Notably, the Supreme Court has yet to address the factual situation in which student expression
originates outside of the school gates and is not school-sponsored, yet subsequently makes its
way onto campus. Several lower courts, including the Ninth Circuit, have held that a school
may regulate such expression if it passes the “substantial disruption” test, regardless of place
of origin. On the other hand, some courts have considered the location of the expression to be
an important threshold issue for the court to resolve before applying the Supreme Court’s
student speech precedents.
In the context of First Amendment challenges to school uniform policies, the Ninth Circuit has
found that such policies are content and viewpoint neutral, meaning courts must apply the
intermediate level of scrutiny. The Ninth Circuit found that a school’s uniform dress code policy,
which furthers student achievement, safety, and a positive school environment, was acceptable.
Relevant Cases
•
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
(Supreme Court found a violation of students’ First Amendment rights when students were
suspended for wearing black armbands to protest the Vietnam War); Castorina ex rel. Rewt
v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001) (Court found a violation of
students’ First Amendment rights when school banned wearing clothing displaying the
Confederate flag but did not ban wearing clothing displaying Malcolm-X; where both
constituted racially sensitive symbols).
•
Bethel School District v. Fraser, 478 U.S. 675 (1986) (Supreme Court found it was not a
violation of students’ First Amendment rights when school disciplined student for giving a
lewd speech when campaigning for student body vice president); Hardwick ex rel.
Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013) (Court found it was not a violation of
students’ First Amendment rights when school banned shirts containing obscene and
derogatory sayings, including those that promoted violence).
•
Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) (Supreme Court
found it is not a violation of students’ First Amendment rights for school to limit content of
school sponsored publications); Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426
F.3d 617 (2d Cir. 2005) (Court concluded school censorship of a student poster, that
included religious content, was appropriate because the poster was part of a school
assignment and thus school sponsored).
Page 4 of 10
•
Morse v. Frederick, 551 U.S. 393 (2007) (Court ruled that the school did not violate
students’ First Amendment rights by prohibiting a student banner that advocated for illegal
drug use).
•
LaVine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001) (Court determined that a
school could regulate student expression that did not originate on campus, so long as it
caused or was reasonably likely to cause a material and substantial disruption of school
activities).
•
Wisniewski v. Board of Educ. of the Weedsport Central Sch. Dist., 494 F.3d 34 (2d Cir.
2007) (Court ruled it was reasonably foreseeable that a student’s instant messaging icon,
transmitted to 15 of his school friends, would eventually come to the attention of the school
authorities and thus Tinker applied).
•
Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008) (Ninth Circuit found
school’s dress code policy not a violation of students’ First Amendment right to freedom of
expression).
•
Olesen v. Board of Education of School District No. 228, 676 F. Supp. 820 (D. Ill. 1987)
(Court denied preliminary injunction against school policy banning male students from
wearing earrings because of their connection to gang activity).
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SITUATION #2: Janice’s Missing Cash
Sample Discussion Questions
Take another poll. Raise your hand if you think it is okay to search everyone in Janice’s
Period 2 class? Keep your hand up if you think it would be okay to search every student in the
school? Ask students who stop raising their hand why they think there is a difference. Ask the
other students why they think there isn’t a difference.
What if the school doesn’t find anything? Do you think it would be okay to search the
students’ cell phones for texts about the missing money?
Ask a student who thinks the school cannot search his bag if he thinks he has the right to
refuse to be searched. Ask him what he would say to the school officials when they try to
search him.
If missing money doesn’t peak the students’ interest, try asking them if their school does
mandatory drug tests. Ask them to raise their hands if they’ve ever been drug tested by the
school. Then ask those students if they think the drug tests are a violation of their rights.
Summary of Applicable Law
The Supreme Court weighed in on the extent of public school students’ Fourth Amendment
rights against unreasonable searches and seizures in 1985 (citation below). In that case, the
school principal searched the purse of a student caught smoking on campus and found
marijuana. The principal called the police and the student was ultimately sentenced to
probation based partly on the marijuana the principal found. The Supreme Court found that the
search was not prohibited by the Fourth Amendment. While the Court noted that the Fourth
Amendment’s prohibition of unreasonable searches applies to searches conducted by public
school officials, the Court found that it would not require “strict adherence to the requirement
that searches be based on probable cause.” Instead, “the legality of a search of a student should
depend simply on the reasonableness, under all the circumstances, of the search.”
In this context, “reasonability” is a twofold inquiry: First, was the action justified at its
inception? Second, was the search reasonably related in scope to the circumstances that justified
the search?
The Court’s most recent case (citation below) on this topic found a search started out
“reasonable,” justifying a search of a student’s backpack and outer garments, but crossed the line
into a Fourth Amendment violation when the school nurse searched the female student’s bra and
underwear.
Page 6 of 10
Relevant Cases
•
New Jersey v. T.L.O., 469 U.S. 325 (1985) (the 1985 Supreme Court case discussed
above) Safford Unified School District No. 1 v. Redding, 129 S. Ct. 2633 (2009) (the
Supreme Court’s most recent case on this topic, discussed above).
•
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) (Court found school’s policy of
drug testing student athletes did not violate the Fourth Amendment)
•
Ybarra v. Illinois, 444 U.S. 85 (1979) (individuals, unlike students on public school
campuses, are protected against searches made without probable cause)
Page 7 of 10
SITUATION #3:
“After the Prom” Party
Sample Discussion Questions
Point out that the school had not heard there would be drinking at this party. Do you think
the police should be allowed to go into a hotel room just because they know high school
students are having a party? What if everyone had been drinking soft drinks? Can the
hotel manager enter the room, see the students drinking, and then call the police?
Try asking a more general question. Ask students to raise their hands if their privacy is
important to them and have a couple of students explain why.
Ask the students if it makes a difference that the school is concerned about the students‟
safety.
Try making the safety issue more prominent. “What if a teacher thought she heard a
student say he was going to bring a gun to school and shoot everyone in his first period
class? If she tells the police, do you think they should be able to search that student at
home?”
This might be a good place to bring up September 11. What if you have a pen pal in
Afghanistan? Do you think the government should be able to read all of your emails?
If the students aren’t interested in September 11, try the 2010 immigration law in
Arizona.
Summary of Applicable Law
The same summary and cases applicable to Situation #2 are also relevant here. In addition, if
the students are interested, you may want to briefly discuss the Patriot Act, passed in October
2001 after the September 11 tragedy. Briefly, the Patriot Act eased restrictions on searches of
email and telephone communications, and financial and medical records. It also made it easier
for law enforcement to detain and deport immigrants suspected of terrorism. For more on the
Patriot Act, go to the Library of Congress’s website at http://thomas.loc.gov/cgibin/bdquery/z?d107:HR03162.
In April 2010, Arizona enacted an immigration law, which included a provision that made “the
failure to carry immigration documents a crime and give[s] the police broad power to detain
anyone suspected of being in the country illegally.” Archibold, Randal C., “Arizona Enacts
Stringent Law on Immigration,” The New York Times (Feb. 23, 2010) (found at
http://www.nytimes.com/2010/04/24/us/politics/24immig.html). The Federal government
challenged the law. In Arizona v. United States, the Supreme Court ruled largely in favor of
the federal government by striking down most of its key provisions. See 132 S.Ct. 2492
(2012). Specifically, the Court let stand one of the most controversial parts of the bill -- a
provision that lets police check a person’s immigration status while enforcing other laws if
"reasonable suspicion" exists that the person is in the United States illegally. However, the
Court struck down provisions: (1) authorizing police to arrest immigrants without warrant
where "probable cause" exists that they committed any public offense making them removable
from the country; (2) making it a state crime for "unauthorized immigrants" to fail to carry
registration papers and other government identification; and (3) forbidding those not
authorized for employment in the United States to apply, solicit or perform work. That would
include immigrants standing in a parking lot who "gesture or nod" their willingness to be
employed.
Page 8 of 10
SITUATION #4:
Seaside High School’s “Cyber-Bullies”
Sample Discussion Questions
Raise your hand if you think that your Facebook profile is your private property.
Why? Why not?
Change the hypothetical. What if this happened before the Internet? Say one
student wrote a mean letter to another student and the school reacted by requiring
the post office to drop off all students’ letters at the school so administrators could
read them to make sure they were not mean letters. Would that change your
opinion? Is this situation different from the Facebook situation?
See if the students’ opinions change depending on what the school is monitoring.
Ask, “What if the school wasn’t monitoring for cyber-bullying? What if the
school was looking for evidence of underage drinking? Or what if the school
wanted to know who was dating who so they could make sure the couples didn’t
have classes together?”
Do you think there should be limits on what you can say about other people on the
Internet?
What if your school published individual student test scores in order to pressure the
students to try harder on the test? Would that be okay?
Summary of Applicable Law
Both freedom of expression and the right to privacy are implicated in this situation. Thus, all
of the summaries and relevant cases in the previous situations are also applicable here.
Relevant Cases
Courts have been all over the map on the issues involving speech made by students on
social media. The majority of the cases are generally in the students’ favor, prohibiting
school districts from punishing the students’ speech, unless the school district can
directly establish that the speech caused a “substantial disruption” to the school
environment or the speech constituted a “true threat.”
Cases favoring the students:
•
Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280 (5th Cir. 2014), rehearing granted
by 782 F.3d 712 (5th Cir. 2015) (student’s rap song and related Facebook posts
were not considered threats and did not cause substantial disruption, despite
including lyrics about hating and wanting to “cap” two school coaches).
•
Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) (en banc) (First
Amendment prohibited the school district from regulating a student’s speech via a
fake Myspace profile of a school administrator because the nexus between the
student’s speech and a substantial disruption was too attenuated).
Page 9 of 10
•
J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (C.D. Cal. 2010)
(student’s uploading of a video onto YouTube in which she and other students
called victim a “slut” did not rise to substantial disruption because, among other
facts, the victim was only briefly upset and only missed a portion of one class).
•
T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp., 807 F. Supp. 2d 767 (N.D. Ind.
2011) (school could not show that female students who took suggestive pictures
during a sleepover, which they posted to Facebook and Photo Bucket, caused a
substantial disruption or that a future substantial disruption was foreseeable.
Although two parents complained about the pictures, no students made complaints
to school officials, and classes were not disrupted).
•
Lack v. Kersey, No. 1:12-CV-930-RWS, 2012 U.S. Dist. LEXIS 44657 (N.D. Ga.
Mar. 30, 2012) (student’s Facebook messages with his peer about the school
principal received First Amendment protection because they were non-violent and
did not cause a substantial disruption).
•
Burge v. Colton Sch. Dist. 53, No. 3:14-00605-ST, 2015 U.S. Dist. LEXIS 51596
(D. Or. Mar. 3, 2015) (student’s Facebook posts about a teacher, including one
post about the teacher needing to be shot, did not rise to a “true threat” or
substantial disruption -- the teacher was not informed about the comment thread
until six weeks after it was removed and no students or staff members were absent
as a reaction to the student’s conduct).
•
R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128
(D. Minn. 2012) (finding that school’s search through student’s Facebook account
violated the student’s right to privacy, although she wrote postings about hating a
school official).
Cases favoring the school district:
•
Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013) (substantial
disruption reasonably foreseeable after student sent messages to friends about his
weapons collection and compared his plans to engage in a school shooting to the
Virginia Tech incident).
•
Kowalski v. Berkeley Cnty. Schs., 652 F.3d 565 (4th Cir. 2011) (student’s
creation of a MySpace page for her and other students to make offensive
statements about a peer not protected because the victim of the cyberbullying
became upset and missed classes, and therefore, the student’s conduct rose to the
level of “substantial disruption”).
•
S. J. W. v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012) (twin
students’ creation of a website with a blog about their school caused a substantial
disruption of the school environment, upsetting both students and teachers).
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