Students First Amendment rights in school: Morse v. Frederick

The most recent Supreme Court decision on student speech  was decided in June of 2007.  In Morse a senior at Juneau-Douglas High School, Joseph Frederick, was suspended for holding a banner as the Olympic Torch Relay passed through Juneau, Alaska. The banner read “BONG HiTS 4 JESUS.”The school had allowed students to leave class early that day to watch the relay. After Frederick had revealed the banner the principal confiscated it and suspended Frederick for ten days. Frederick sued the school for violating his First Amendment.

The Supreme Court reversed a decision by the Ninth Circuit Court of Appeals' holding that school officials have the authority to "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use."  The Supreme Court created another new standard that allowed for more authority for schools to punish student speech. The new standard that was created in Morse made it that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."  The Court held that Fredericks constitutional rights had not been violated.

Students First Amendment rights in school: Hazelwood v. Kuhlmeier

The Supreme Court created a second distinction from Tinker in Hazelwood School District v. Kuhlmeier.  In Kuhlmeier, the principal of Hazelwood East High School removed two articles written by students from the school newspaper. One of the stories described three unidentified Hazelwood East students' experiences with pregnancy; the other discussed the impact of divorce on named students at the school. The principal was concerned over the content of two stories, one that described the experiences of three pregnant Hazelwood high school students and another that discussed the impact of divorce on students at the school.  The students sued claiming a violation of their First Amendment rights.

The Supreme Court acknowledged both Tinker and Fraser in their analysis finding that the school was not a public forum and the school had a right to control the paper as part of the schools’ curriculum. The Court ruled in favor of the school district stating "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." 

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Students First Amendment rights in school: Bethel v. Fraser

In 1983 in Pierce County, Washington a high school senior Matthew Fraser,  gave a speech nominating his classmate Jeff Kuhlman for student body vice president. The speech went as follows:

"I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he'll never come between us and the best our school can be. He is firm enough to give it everything." [Long pause after the word "come" on oral delivery, but no comma in the written version, according to Matthew N Fraser]

Fraser appealed through the grievance procedures of his school, but was found to be in violation of a school policy against disruptive behavior. Fraser was suspended for two days from his school and wasn't allowed to speak at his graduation ceremony and his name was taken off the ballot used to elect graduation speakers. Fraser was still elected by a write-in vote but Bethel High School administrators refused to accept it and they denied Fraser the opportunity to speak at graduation. Fraser responded by filing a lawsuit against the school  claiming a violation of his First Amendment right and the U.S. District Court ruled in his favor.

The school district then appealed the decision to the US Ninth Circuit Court of Appeals which also ruled for Fraser. The school district asked the United States Supreme Court to consider the case and it agreed to do so. In a 7 -2 decision the Supreme Court reversed the decision of the Appeals Court and upheld the suspension. The Court distinguished this case from Tinker v. Des Moines, which upheld the right for students to express themselves where their words are nondisruptive and could not be seen as connected with the school, the ruling in Fraser can be seen as a limitation on the scope of that ruling, prohibiting certain styles of expression that are sexually vulgar.

Students First Amendment rights in school: Tinker v. Des Moines Independent Community School District

In December 1965 in Des Moines, Iowa three teenagers, John F. Tinker his younger sister Mary Beth Tinker and their friend Christopher Eckhardt decided to wear black armbands to their schools in protest of the Vietname War. The principals of the Des Moines schools banned the wearing of armbands to school. Violating students would be suspended and allowed to return to school after agreeing to comply with the policy. These three students chose to violate this policy. All three were suspended from school. A suit was not filed until after the Iowa Civil Liberties Union approached their family, and the ACLU agreed to help the family with the lawsuit. Their parents, in turn, filed suit in U.S. District Court, which upheld the decision of the Des Moines school board. A tie vote in the U.S. Court of Appeals for the 8th Circuit meant that the U.S. District Court's decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the Supreme Court directly. The case was argued before the court on November 12, 1968.

The court decided 7 to 2 that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. The court famously stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court held that in order for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.

Teacher Salaries Public Information?

The Wyoming Supreme Court ruled yesterday that a Cheyenne school district must disclose their teaches' salaries to the local newspaper.  The case can be found here Laramie County School District 1 v. Cheyenne Newspapers, Inc.

The Executive Editor of the paper said "There was never a doubt in our minds that the salaries and the names are public information." The newspaper thinks that this information will be useful information that the public can use to see how much teachers are being paid and what it takes to raise their pay levels. 

The school district is going to comply with the ruling but they don't agree with it. The district had already given out information on how much teachers and employees made but without releasing names. The superintendent said ""The request to produce all of our employees by name, with their current salaries, and so on, is a request that we felt could put some of our employees in jeopardy."

Justice Michale Golden said in his decision that "the public has a right to know how a governmental entity expends public funds."

This case I do not understand. If Justice Golden thinks the public has a right to know how money is being spent, why can't they know without names being released? What is the difference if employee 3473 is making $35,000 or if old Miss. Johnson the English teacher is? The School district did put up a weak defense saying that releasing the information could be dangerous for employees who may have a stalker (seriously that was their defense). I think there cold be an easy argument for privacy protection for these employees, and how the same information would be useful without names being attached.

Drug Miners

In light of the reading assignment for this week I did a little more research into the topic and found there to be a very recent case on the matter. As we have learned pharmacies sell prescription information to data mining companies who make sense of the information an then sell it on to drug companies and the drug companies in turn use it to sell the public drugs.

Vermont passed a law in 2007 that forbids companies from mining drug prescription records for marketing purposes. The First Circuit Court of Appeals held this law to be constitutional. Vermont won at the Federal Court, but lost at the Appellate level, the court said it violated the First Amendment. The Supreme Court accepted the appeal to this case on January 7 of this year. 

The SCOTUS blog put this issue into plain english:

Plain English Issue: Pharmacies collect data regarding what drugs doctors prescribe to their patients, and make that data publicly available (with patient identifying information redacted) for various uses. Does the First Amendment permit a state to prohibit drug manufacturers from using that data to market drugs to doctors? ( http://www.scotusblog.com/case-files/cases/sorrell-v-ims-health-inc/)

Prescription records typically list the name of the doctor and the medications prescribed, these records also include other identifiers such as date of birth, gender and zip code which can be used to re-identify patients. This means that companies can easily search within patients records and obtain deeply private and sensitive information without their consent.  Data mining companies argue that putting limits on the use of drug prescriber information infringes on their rights of commercial free speech. 

The way this case is decided will have an enormous effect on drug companies and data miners. The physicians side is hoping that this information is kept private and arguing that this is a case of medical privacy. The drug companies are arguing that this is a case of commercial speech. The way this case turns out will be really interesting. If the Court views that prescription information is much like medical records and could be protected by HIPAA as medical records are. But if this is public information then it should be allowed to be collected by data mining companies and sold to drug companies.

I feel that a middle of the line solution would be best where some of this information could still be accessed by data miners and sold to drug companies but it would not be so identifiable that information could be used to track an individual. This case will be heard by the Supreme Court  on April 26, 2011 and however this case is decided it will have a huge impact on one of our country's biggest industries.

Be Happy, Not Gay?

The 7th Circuit Court of Appeals upheld a ruling about two high school students in Chicago wearing controversial shirts at their high school. One student, Heidi Zamecnik, wore a shirt that said "Be Happy, Not Gay." She also chose to wear it one day after a "Day of Silence," a day designed to bring attention to the harassment of homosexual students.

A three-judge panel decided in the case that a school that "permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality." The judges went on to say the school hadn't proved that the shirt caused a substantial disruption and that the words on the shirt weren't "fighting words."

I thought the ruling on this case was ridiculous. I think schools, especially public high schools, should be held to a different standard. I know from my experience that my schools would always tell me what was appropriate to wear or not to wear and that's what I went along with. I would often wear "Dr. McGillicuddy's", the schnapps maker, attire because it was my last name and its delicious and I would get told to turn it inside out. Now that is just a shirt with an alcohol brand on it, these students are going out of their way to make a statement. Outside of school they can wear whatever shirt they like but inside of a high school, especially with the problems we have with violence in schools, there should be rules.

I also don't see how the school couldn't point to their rules of conduct or the student handbook to make the wearing of offensive attire against the rules. I have a feeling the school would act differently if a student wore a "Be White, Not Black" shirt the day after Martin Luther King day. Would the ruling be the same since its not "fighting words" and a school that "permits advocacy of the rights of black students cannot be allowed to stifle criticism of black students."I might be going a little to far with that example but I think it makes my point. I just feel what should be allowed in school should be different then what is allowed outside of school. If you have a differing opinion please let me know.

Bobby McFerrin wants everyone to happy