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TEMPLATE FOR STUDENT RIGHTS CASE ANALYSES Identify the section of law in which the case falls by checking the box that applies to the case that is being analyzed.

School Attendance Student Records School Curriculum Freedom of Expression Student Appearance Search and Seizure
Given the box you checked, provide legal background on this section of law (you will be paraphrasing the lecture notes) and then narrow down to which test/s or legal principle/s should be applied to this case and describe why.

The First Amendment, as applied to the states through the Fourteenth Amendment, restricts government (not private) interference with citizens free expression rights, which are perhaps the most preciously guarded individual liberties. The government, including public school boards, must have a compelling justification to curtail citizens freedom of expression The freedom of expression also extends to unpopular views such as the KKK and the burning of the American flag. Unprotected Conduct and Expression Defamatory Expression. Defamation includes spoken (slander) and written (libel) statements that are false, expose another to public shame or ridicule, and are communicated to someone other than the person defamed. Courts have upheld school authorities in banning libelous content from publications distributed at school and imposing sanctions on students responsible for such material, but regulations cannot be vague or grant school officials complete discretion to censor potentially libelous materials. Obscene, Lewd, or Vulgar Expression. The judiciary has held that individuals cannot claim a First Amendment right to voice or publish obscenities, but school authorities do not have to prove that student expression is obscene for it to be curtailed. In Bethel School District No. 403 v. Fraser, the Supreme Court in 1986 granted school authorities considerable latitude in censoring offensively lewd and indecent student expression that would undermine the schools basic educational mission Inflammatory Expression. The judiciary also has supported regulations banning the use of inflammatory expression in public schools. Fighting words or other expression that agitates, threatens, or incites an immediate breach of peace have been distinguished from speech that represents ideological views and leaves an opportunity for calm and reasonable discussion. Advocacy of Illegal Activity for Minors. In its first student expression decision in almost

Brock |2 two decades, Morse v. Frederick, the Supreme Court in 2007 held that given the special circumstances in public schools, students can be disciplined for expression reasonably viewed as promoting or celebrating illegal drug use Commercial speech enjoys some constitutional protection but is not afforded the same level of First Amendment protection as speech intended to convey a particular point of view. The Supreme Court has recognized that government restrictions on speech with economic motives do not have to be the least restrictive means to achieve the desired end; rather, there only needs to be a reasonable fit between the restrictions and the government goal. 19 Courts generally have upheld regulations prohibiting sales and fund- raising activities in public schools as justified to preserve schools for their educational function and to prevent commercial exploitation of students. There are limits, however, on school authorities wide latitude to censor student expression that bears the public schools imprimatur. Blatant viewpoint discrimination, even in a nonpublic forum, abridges the First Amendment. Prior Restraints. When determined that protected private expression is at issue, courts then are faced with the difficult task of assessing whether restrictions are justified in particular situations. Under the Tinker principle, private expression can be curtailed if it is likely to disrupt the educational process or intrude on the rights of others. Legal Principles (Threshold Question) Only if conduct is meant to communicate an idea that is likely to be understood by the intended audience is it considered expression for First Amendment purposes. Other factors to consider: Reactions of the recipient and other listeners, Whether the maker of the alleged threat had made similar statements to the victim in the past Whether the utterance was conditional and communicated directly to the victim, and Whether the victim had reason to believe that the speaker would engage in violence

Hazelwood and Its Progeny. In 1988, the Supreme Court rendered Hazelwood School District v. Kuhlmeier, holding that school authorities can censor student expression in school publications and other school- related activities as long as the censorship decisions are based on legitimate pedagogical concerns. In Tinker, the Supreme Court echoed statements made in an earlier federal appellate

Brock |3 ruling: A student may express opinions on controversial issues in the classroom, cafeteria, playing field, or any other place, as long as the exercise of such rights does not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school or collide with the rights of others (Cambron-McCabe, McCarthy & Thomas, 2009, p 93-106).

Lawyer for the parents on behalf of the child Copy all parts or points of the test (make sure to include each and every component) and generate the arguments that the parents lawyer could make to win the case.

The lawyer for the parents on behalf of the students would argue that the message on the bench did not disrupt the educational process. The lawyer would argue that the speech is not vulgar or defamatory in nature. The lawyer would argue that the speech expresses an opinion and therefore covered under First Amendment rights. The lawyer would argue that the speech was not inflammatory and not fighting words were used. The language used would not incite violence. The lawyer would argue that the school did not have any compelling justification to remove the speech from the bench. The lawyer would argue that there was no backlash from the speech being printed on the bench by the student body. Only the school officials found fault with the language and that it was unwarranted. The lawyer would argue that there were no legitimate pedagogical concerns surrounding the message placed on the bench based as in Hazelwood School District v. Kuhlmeier 1988 case.

Lawyer for the school Copy all parts or points of the test (make sure to include each and every component) and generate the arguments that the schools lawyer could make to win the case.

The lawyer for the school would argue the school officials had just cause for concern for disruption because of the message. The message could have very well caused uproar from opposing views. The lawyer would argue that the school believed the message to be offensive to others and lack decency. The lawyer would argue that the schools decision to censor the clubs message was purely out of pedagogical concern as in the Hazelwood School District v. Kuhlmeier case of 1988. The lawyer would argue that the club took the opportunity to paint political views on a bench meant to display school sprit which is not its intended use.

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Your overall assessmentWho has the stronger case? Justify your opinion always basing it on legal principles (so although it is your assessment, it should have some grounding in the law).

I believe that the students have the stronger case. The students did nothing, but practice basic First Amendment rights by expressing an opinion pertinent to the clubs beliefs. There was nothing lewd or vulgar, nor did the message they painted on the bench disrupt the educational process at the school. The students did not paint a message that supported illegal activities. The only ones that it seemed to offend were the school officials and no clear reasons were given to why. If a legitimate reason was given it could have shown pedagogical concern, thereby supporting the schools decision to censor the message. According to the Supreme Court case Bethel School District No. 403 v. Fraser 1986 schools were granted the ability to censor lewd, obscene and vulgar student expression. Im assuming this gave the school the ability to define what is obscene and indecent. The school may want to build their case around this. However, I believe it would not be strong enough to withstand the Supreme Court sentiments in Tinker v. Des Moines Independent School District of 1969 that stated that students may express themselves as long as it does not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.

References: Cambron-McCabe, McCarthy, Martha, Thomas, Stephen (2009). Legal Rights of Teachers and Students. Boston, MA: Pearson Education, Inc. Trevaskis, D. (Personal Communication, June 2012). Module five lecture - student rights, EDU 702, University of New England, Biddeford, ME

I have read and understand that plagiarism policy as outlined in the Student Plagiarism and Academic Misconduct document relating to the Honesty/Cheating Policy. By attaching this statement to the title page of my paper, I certify that the work submitted is my original work developed specifically for this course and to the MSED program. If it is found that cheating and/or plagiarism did take place in the writing of this paper, I acknowledge the possible consequences of the act/s, which could include expulsion from the University of New England.