Baraboo and the First Amendment: 5 things to know
Baraboo School District officials announced last week that students involved in the now notorious Nazi salute photo are unlikely to be disciplined in part because they are protected by the First Amendment.
That’s true. Students do have the right to express themselves, on and off campus. But that right is not absolute. And schools have moved increasingly to narrow those rights in recent years, often in the interest of school safety, according to attorneys and legal scholars interviewed by the Journal Sentinel.
So, why did Baraboo decide not to punish students? Here are five points that put that decision in context.
The Tinker standard
Before 1969, students were not definitively presumed to have the right of free speech. That changed when the U.S Supreme Court issued its landmark decision in the case of Tinker v. Des Moines Independent Community School District. The case involved three Iowa high school students who were suspended in 1965 for wearing black armbands to protest the Vietnam war. In the 7-2 decision, the court found that stu-
dents (and teachers) do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” And it established what has come to be known as the Tinker standard: that schools may not abridge students’ right to free speech unless that conduct would “substantially interfere with the work of the school or impinge upon the rights of other students.”
“That was really the high point of student free speech rights in the United States,” said Carolyn Schurr Levin, an attorney and adviser to student publications at Long Island University. “But since then, those have been whittled down, especially after Columbine and all of the school shootings.”
Hazelwood case
The Supreme Court has affirmed the right of schools to restrict student speech in school-sponsored activities in two key cases over the last three decades. In Hazelwood School District v. Kuhlmeier, a 1988 decision involving a student newspaper, the court found that schools may restrict student speech in school-sponsored activities as long as their actions are reasonably related to “legitimate pedagogical concerns.” And in 2007, the court ruled in favor of a principal who suspended a student for unfurling a banner touting “Bong Hits 4 Jesus” across the street from the school during the 2002 Olympic Torch Relay through Juneau, Alaska. In Morse v. Frederick, the court narrowly held that the incident occurred at a school-sponsored event — it was essentially a field trip — and that schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” without violating the First Amendment.
Where does Baraboo fit in this?
It is a longstanding tradition in the Baraboo School District for prom-goers to gather on the steps of the county courthouse for photographs attended by parents. This one was taken before the May 2018 junior prom. The district has maintained this was not a schoolsponsored event. And legal experts interviewed by the Journal Sentinel say they concur with its position. But they said a district intent on disciplining the students might argue that it was.
“I think there can be a legitimate question about whether a prom activity is a school-related event,” said Roy Gutterman, a communications law professor and director of the Tully Center for Free Speech at Syracuse University. “It’s not an educational event, but it definitely has the imprimatur of the school district.”
On the other hand, “if students weren’t wearing paraphernalia that identifies the school, the school didn’t hire the photographer, maybe there were no school personnel there ... then it doesn’t fit school sponsorship,” said Catherine J. Ross, professor at George Washington University Law School and author of “Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights.”
“Then the question becomes how far Tinker reaches for speech that occurs off campus,” she said.
The Supreme Court has yet to say
The Supreme Court and about half the 12 U.S. judicial circuits — including the 7th Circuit, which includes Wisconsin — have yet to decide an off-campus speech case under Tinker, according to legal experts.
And most of the circuits that have ruled have either decided against the schools or required them to show that the speech was intended to cause a disruption at the schools, Ross said.
“The school would really need to show a close nexus between this photograph and the risk of material disruption at the school,” she said of the Baraboo photo. “I’m not sure, had they given the Nazi salute in the cafeteria, that it would reach the material disruption standard (needed) ... to satisfy Tinker.”
What about school conduct code?
Presumably, if the Baraboo students take part in extracurricular activities, one might suggest they can be disciplined under the district’s code of conduct.
But Ross cautions about putting too much stock in these kinds of policies.
“Schools have lots of things in codes that do not meet First Amendment law,” Ross said.