NSBA Amicus Brief - West v. Derby Unified School District (10th Cir.)

The Kansas Association of School Boards (KASB) is a not-for-profit association whose membership consists of 296 school districts, 20 educational cooperatives and service centers, 15 community colleges, 3 area vocational technical schools, and the Kansas School for the Blind. Founded in 1940, the National School Boards Association (NSBA) is a not-for-profit federation of state associations of school boards across the United States and the school boards of the District of Columbia, Guam, Hawaii, and the U.S. Virgin Islands. NSBA represents the nation's 95,000 school board members. These board members govern 14,722 local school districts that serve more than 46.5 million public school students--approximately 90 percent of all elementary and secondary school students in the nation.

The interests of KASB and NSBA in the outcome of this case are acute. Both organizations have an interest in the effective conduct and implementation of local school board policies, including policies that prohibit harassment on any discriminatory ground. Both organizations have a strong interest in insuring school boards maintain autonomy to implement effective student disciplinary policies that do not infringe on First Amendment rights, but recognize the rights of other students to receive an education in a non-discriminatory environment.

Public school districts have a constitutional and statutory duty to provide an equal educational opportunity for all students. This requires school's to provide a learning environment free of racial discrimination, including racial harassment. While students do not shed their right to freedom of speech when entering the school, cases interpreting the First Amendment rights of students in the school context recognize the need for reasonable regulation of speech which is disruptive, patently offensive or contrary to legitimate pedagogical concerns. Under any of the tests for protection, the speech at issue in this case was not protected. School districts must have broad authority to control socially unacceptable, discriminatory speech.

I. While being sensitive to the First Amendment rights of students, school districts must have broad authority to regulate the speech of students in the classroom.

In the landmark case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court acknowledged that students retain their constitutional rights, including the right of freedom of speech, in the public school setting. At the same time the Court recognized the need to maintain an atmosphere conducive for learning in the schools. The Court held that student speech could be restricted or regulated when school officials could show that the speech would result in substantial disruption or material interference with school activities or with the rights of others in the school.

Under Tinker, in order for the actions of school officials in suppressing expressive student conduct to be upheld, it must be shown that the actions were motivated by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." 393 U.S. at 509. The Supreme Court explained the balance of interests in terms of potential for disruption of the school. If a student's exercise of free speech justifies a "reasonable forecast of substantial disruption," then it can be curtailed.

The Court expanded the right of school officials to regulate student speech in Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). In this case, a high school student was disciplined for delivering a sexually charged nominating speech for a fellow student at a school assembly. Recognizing that the inculcation of values is an important function of the public schools, the Court agreed that schools "may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive conduct" and concluded that it was "a highly appropriate function of a public school education to prohibit the use of vulgar and offensive terms in public discourse." 478 U.S. at 683.

While the facts of the Bethel decision focused its precise holding on the vulgar and lewd nature of the speech in question, the reach of the opinion is much broader, recognizing the function of a school in preparing young pupils for citizenship in a democratic society, in inculcating students with fundamental values necessary for the maintenance of a democracy. The Court stated:

These fundamental values of 'habits and manners of civility' essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the view expressed may be unpopular. But these 'fundamental values' must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behaviour. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.

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Indeed, the fundamental values necessary to the maintenance of a democratic political system disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the 'work of the schools.' (citations omitted). The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. (emphasis added). 478 U.S. at 680-81.

Finally, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Supreme Court considered a third case involving First Amendment rights of students and broadened the right of school officials to reasonably regulate school-sponsored speech, i.e., "any expressive activity which students, parents and members of the public might reasonably perceive to bear the imprimatur of the school." 484 U.S. at 271. In the case of school-sponsored speech, the Court concluded regulation of both style and content is permissible so long as the regulation is reasonably related to legitimate pedagogical concerns.

In summary, freedom of expression in schools can be regulated as follows: First, vulgar or plainly offensive speech (Bethel) may be prohibited without showing disruption or substantial interference with the school. Second, school sponsored speech (Hazelwood) may be restricted when the limitations are reasonably related to legitimate educational concerns. Third, speech that is neither offensive nor school sponsored (Tinker) may only be prohibited if it causes a material and substantial disruption of the school. Symbols communicating racial animosity are highly disruptive, threatening and offensive to students. Use of racial epithets or display of a Confederate flag is much more likely to be taken as offensive or threatening in today's schools than use of the popular vulgarity. Applying current Supreme Court precedents to the facts of this case, it is clear schools have the authority to prohibit the display of racially charged symbols within the classroom.

A. Tinker - disruption standard

In this case, the school had experienced disruption of educational activities prior to the implementation of the policy. Racial tensions were heightened in the school district -- fueled by the Confederate flag and other symbols with racial significance. The district's policy was enacted to address this disruption. The student drew and displayed the symbol during a math class and clearly diverted the attention of two other students. When the drawing was completed and taken to the teacher, the teacher was forced to deal with the disciplinary consequences. This is disruption of the classroom.

Further, while some courts have agreed with the conclusion that disruption must be building specific, this conclusion ignores the reality of governing a school district and should be rejected by the Tenth Circuit. School boards struggle to adopt meaningful policies that can be applied uniformly throughout the school district. To have different policies which apply in some school buildings but not others would be an administrative nightmare and a hot bed for claims of violations of rights under the Equal Protection clause. There would be no way to ensure students are treated fairly and equally under the district's student disciplinary code if certain behaviors were prohibited in one building but allowed in others.

The district policy prohibits racial harassment and intimidation and the possession of "racially divisive" items. Applying the Tinker precedent the district had the authority to guard against disruption. In a racially charged environment the prohibition of racially divisive speech is within the Tinker standard. In Melton v. Young, 465 F.2d 1332 (6th Cir. 1972), the court applied the Tinker standard to the display of the Confederate flag.

Unlike the Tinker case, where the Court found no evidence of either actual or potential disruptive conduct, but only an 'undifferentiated fear or apprehension of disturbance,' the record in the present case reflects quite clearly that there was substantial disorder at Brainerd High School throughout the 1969 -70 school year, that this disorder most materially disrupted the functioning of the schools, so much so that the school was in fact closed upon two occasions, that much of the controversy the previous year had centered around the use of the Confederate flag as a school symbol and that the school officials had every right to anticipate that a tense racial situation continued to exist as of the opening of school in September of 1970.¹

In Phillips v. Anderson County School District, 987 F.Supp. 488, 492 (D.S.C. 1997) the court applied the Tinker standard in upholding a similar ban. Here the court found that the district had "substantial facts which [would] reasonably support a forecast of likely disruption" due to prior incidents of racial unrest.

Even in the absence of the forecasted and established disruption, the wearing or display of symbols that communicate animosity based on race can be regulated under the Tinker precedent. Such speech clearly materially interferes with the rights of other students to attend school in an atmosphere that does not permit discrimination on the basis of race.

B. Bethel - offensive speech

The speech need not be sexual to be prohibited as offensive speech under Bethel. Several courts have applied the Bethel standard to patently offensive speech as well as speech which is vulgar and lewd.

In Broussard by Lord v. School Board of City of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992), the court upheld the school's actions in prohibiting a T-shirt emblazoned with the words "Drugs Suck" at a middle school. In Gano v. School District 411, 674 F. Supp. 796 (D. Idaho 1987), the court upheld a student suspension for wearing a T-shirt which falsely depicted school officials in a drunken stupor and contained the phrase, " It doesn't get any better than this." The court observed the T-shirt undermined the school officials' position as role models, and concluded that the case fell within the Bethel precedent. In Poling v. Murphy, 872 F. 2d 757 (6th Cir. 1989), the court upheld the discipline of a student for making rude, but not lewd remarks about an administrator in a campaign speech at a school assembly. In Olesen v. Board of Education, 676 F. Supp. 820 (N.D.Ill. 1987), the court upheld a rule prohibiting male students from wearing earrings as part of a ban on gang activities. The court cited Bethel for the proposition that school officials have authority to teach students that their rights must be balanced with the rights of others.

Applying the Bethel analysis to this case, it is clear that the school has the authority to prohibit racially offensive speech. The symbol in question had been found to be patently offensive to many students. Further, the school has a right to teach that the display of such symbols at school is not appropriate and that speech should be exercised in consideration of the rights of others.

C. Hazelwood - Classroom speech

School districts have the greatest latitude in regulating student speech when it is within the confines of the classroom. The Supreme Court recognized the need for schools to regulate school sponsored speech for legitimate pedagogical concerns.

A school may not stifle dissent because the subject matter is out of favor. Free expression is itself a vital part of the educational process. But in measuring the appropriateness and reasonableness of school regulations against the constitutional protection of the First and Fourteenth Amendments, the courts must give full credence to the role and purposes of the schools and of the tools with which it is expected that they deal with their problems, and careful recognition to the differences between what are reasonable restraints in the classroom and what are reasonable restraints on the street corner. Ferrell v. Dallas Independent School District, 392 F.2d 697, 704-05 (5th Cir. 1968).

In 1991, this court applied the Hazelwood analysis to classroom expression. In Miles v. Denver Public Schools, 944 F.2d 773 (10th Cir. 1991), a teacher was disciplined for statements he made in the classroom about the rumored sexual activities of two students. This court noted the "significant interests of the state as educator" and upheld the regulation of classroom speech for pedagogical reasons. The court concluded that the school had legitimate pedagogical interests in reprimanding a teacher for his classroom speech. The pedagogical interest included the district disassociating itself from speech it considered inappropriate. Thus the discipline was upheld.

Most recently in Lacks v. Ferguson Reorganized School Dist. R-2, 147 F.3d 718 (8th Cir. 1998), the Eighth Circuit held that the school board had the right to prohibit the use of profanity by students in their creative writing. The court, looking to both Bethel and Hazelwood found the prohibition on profanity in the classroom was reasonably related to the legitimate pedagogical concern of promoting generally acceptable social standards.

Because the speech in question in this case occurred in the classroom, during a math class, the Hazelwood analysis should apply. The legitimate pedagogical interests of the school in this instance cannot be denied. Without control and order, learning is unlikely to occur. Further, the school has legitimate pedagogical interest in teaching students the boundaries of appropriate behavior and in providing a classroom environment free of discrimination.

II. Schools must have the authority to adopt policies that prohibit discrimination on the basis of race, including harassment.

School districts have a compelling interest in regulating student speech which may lead to claims of discrimination on the basis of race. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, apply to public schools and prohibit discrimination on the basis of race, color or national origin.

In 1994, the Office for Civil Rights (OCR) of the U.S. Department of Education, the agency responsible for enforcement of Title VI in educational institutions, issued guidance for investigation of complaints under Title VI. "Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance; Notice," 59 Federal Register 11448 (March 10, 1994). This guidance recognizes racial harassment as an illegal form of race discrimination and suggests, "the existence of a racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected by a recipient also constitutes different treatment on the basis of race in violation of title VI." Id. at 11448.

Unlike its counterparts for sex and disability discrimination, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 - 1688, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 729, Title VI regulations do not specifically require an educational institution to adopt a policy prohibiting discrimination or to have grievance procedures which can be utilized to resolve complaints of discrimination. However, in the 1994 guidance, OCR indicates "[t]he existence of both a policy and grievance procedure applicable to racial harassment (depending upon their scope, accessibility and clarity, and upon the acts of harassment) is relevant in the determination of agency capacity." Id. at 11450. Further, the agency suggests requiring the adoption of such policies and procedures may be appropriate sanctions for schools who do not have such policies and procedures in place. Clearly the agency responsible for enforcement of Title VI has indicated to schools under its purview that policies prohibiting racial harassment are desirable, if not required, to avoid potential liability for violations of Title VI.

The policy in question in this case was drafted by a large group of interested citizens in response to racial tension at the school in the mid-1990s. The policy was refined as the result of an OCR investigation of the school a year later. The district was required by OCR to make changes in the policy, and OCR approved the policy, finding it met the district's obligations under Title VI.

Schools must have the authority to adopt policies that allow them to comply with their responsibilities under federal discrimination laws.

III. Student disciplinary codes need not be as precise as penal codes. The policy in question is not unconstitutionally vague or overbroad.

A. Vagueness

The void for vagueness doctrine is a procedural due process concept. To satisfy due process, laws, or in this case disciplinary policies must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.² The parameters of vagueness generally set out by the courts are those that generally apply to analysis of a criminal statute.³ However, as in many constitutional areas the standards applicable for schools is a bit different. In Bethel the Court indicated, "Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions." 478 U.S. at 686.

Several cases involving student disciplinary codes have involved challenges of vagueness. The most analogous case is Phillips v. Anderson County School District Five, 987 F. Supp. 488 (D.S.C. 1997). There the court upheld the suspension of a student for wearing a jacket adorned with a Confederate flag. This was a violation of the school dress code, which provided attire should not interfere with classroom instruction. As in Bethel, the court in Phillips concluded the written policy, coupled with warnings, gave the student adequate notice he could be subjected to disciplinary sanctions for his actions. The facts in this case are amazingly similar, although the policy in question is much clearer. It specifically prohibits wearing the Confederate flag symbol on clothing.

In two recent cases, Stephenson v. Davenport Community School Dist., 110 F.3d 1303 (8th Cir. 1997), and Chalifoux v. New Caney Independent School Dist., 976 F. Supp. 659 (S.D. Texas 1997), courts have found school district policies which prohibited the wearing of gang-related attire unconstitutionally vague. In each of these cases the court noted gang-related apparel was not adequately defined so a person of common intelligence would understand what was prohibited.

The policy at issue lists specific items that can be racially divisive or create ill-will or hatred and thus violate the policy. It prohibits racially harassing or intimidating other students through the following means:

• Name calling;
• Using racial or derogatory slurs;
• Wearing or possessing items implying racial hatred or prejudice;
• Possessing, at school, on school property, or at school activities, any written material that is racially divisive or creates ill-will or hatred.

This list includes "Confederate flags or articles." It would be impossible to draft a policy which anticipated every racially inflammatory symbol or gesture. Here, however the district has set forth those symbols which clearly fall into this category. Policies such as this are necessary in school districts that have had a history of racial unrest.

B. Overbreadth

A number of cases have involved challenges to "hate crimes" or "hate speech" policies on grounds that they are overbroad. A statute is unconstitutional as overbroad only if there is "a realistic danger the statute will significantly compromise recognized First Amendment protections of parties not before the court." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984).

The key question in an overbreath challenge is determining if the regulation reaches constitutionally protected activity. Dambrot v. Central Michigan University, 53 F.3d 1177 (6th Cir. 1995). Based on the analysis of student speech in the first section of this brief, it is doubtful this policy impinges constitutionally protected activity, and therefore, the argument should fail.

Further, a review of cases addressing overbreath arguments adds credence to this conclusion. In R.A.V. v. City of St. Paul, 505 U.S. 377,112 S.Ct. 2538, 120 L.Ed.2d 592 (1992), the Supreme Court struck down a city ordinance prohibiting erection of any symbol which "one knows or has reasonable ground to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender..." The Court concluded the ordinance unconstitutionally prohibited otherwise permitted speech solely on the basis of the subjects that the speech addressed, and did not prohibit the use of all fighting words, but only those that would insult or provoke violence on the basis of one of the specified categories. The Court found the prohibition based on content and viewpoint to be unacceptable.⁴

Attempts by higher education institutions to prohibit hate speech have been largely unsuccessful. See, Dambrot v. Central Michigan University, 53 F.3d 1177 (6th Cir. 1995); UWM Post v. Board of Regents of the U. Of Wis., 774 F.Supp. 1163 (E.D. Wis. 1991), and Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich 1989).

The tenor of these cases turn when it is conduct which is proscribed, rather than pure speech. In Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993), the Supreme Court upheld a Wisconsin statute which enhanced a defendant's penalty if the victim of the crime was intentionally selected on the basis of race. The Court distinguished this statute, which prohibited conduct unprotected by the First Amendment, from the one in R.A.V. that prohibited expression protected by the First Amendment.

However, the policies in question in these cases had a much broader sweep than the policy in question in this case. Here the school district did not attempt to prohibit speech because it disagreed with the ideas or messages sought to be conveyed, it prohibited racially motivated conduct and expression that had proven to be disruptive to the educational process and invasive of the rights of other students. Further, it provided examples of prohibited conduct. The policy is narrowly tailored to prohibit disruptive behavior, protect students from harassment, and assist in educating students in respectful discourse in a diverse democracy.

This is a case in which a student, fully aware of the consequences of his actions under school policy, deliberately drew a Confederate flag during his math class to provoke a response. Applying any of the tests for First Amendment protection of student speech, his actions were not constitutionally protected. The school had legitimate interests in providing an equal educational opportunity free of racial discrimination for all students, in teaching students the boundaries of socially acceptable behavior, and in preventing disruption of educational processes in adopting the policy. The policy is narrowly tailored to meet these legitimate concerns. Given the flexibility courts have recognized schools must have in addressing unanticipated conduct in the schools, the policy is neither vague nor overbroad. The decision of the district court should be affirmed.

Respectfully submitted,

Cynthia Lutz Kelly
Kansas Association of School Boards
1420 S.W. Arrowhead
Topeka, KS 66604
(785) 273-3600

² In evaluating whether a law is vague, the courts must take into account the "limitations in the English language with respect to being both specific and manageably brief" and not strike down laws "'set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.'" Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (quoting United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79(1973)). Language inevitably contains ambiguity, but the void for vagueness doctrine does not require "straining to inject doubt as to the meaning of words where no doubt would be felt by the normal reader." United States v. Powell, 419 U.S. 87, 93 (1975).

³ In Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), the Court explained the void for vagueness doctrine, generally, as follows:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut(s) upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of (those) freedoms." Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone" . . . than if the boundaries of the forbidden areas were clearly marked.

⁴ However, in a concurring opinion in R.A.V., Justice White suggested that sexual harassment policies under Title VII may be permissible where the incidental content-based regulation of speech is directed at the speech's "secondary effects" and justified without reference to the content of the speech.