Censorship and Viewpoint Discrimination

Diane Ravitch, in her book The Language Police: How Pressure Groups Restrict What Students Learn (2003), argues that political groups from both the right and the left strongly affect what is taught in schools. Some of this influence takes the form of censorship, which Ravitch says occurs when school officials fear controversy from sources such as parents or the community. While right-wing groups sought to ban books from the curriculum and from school libraries for objectionable content, the left argued just as strongly that the curriculum be politically correct. These tensions have caused great difficulties for textbook companies, which must attempt to placate both sides or risk bankruptcy. Ravitch characterizes these pressures as “pernicious and pervasive” (Ravitch, 2003, p. 159) in that they limit students’ exposure to the world of ideas:

Censorship, in schools, whatever its purposes, is censorship. It should be abhorrent to those who care about freedom of thought, to those who believe that minds grow sharper by contending with challenging ideas .... How weird ... to see television programs and movies that present life in all its confusing and sometimes unpleasant fullness, then to read textbooks in which language, ideas, and behavior have been scrubbed of anything that might give offense.

(Ravitch, 2003, p. 159)

Justice Jackson, in his dissenting opinion in life! Virginia State Board of Education v. Barnette (1943), a case addressing whether it is legal to require students to say the pledge of allegiance contrary to their religious beliefs, maintained: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox inpolitics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” (VV«i Virginia State Board of Education v. Barnette, 1943, p. 642).

From a legal perspective, courts have concluded that schools are a “marketplace of ideas,” yet school officials must also maintain order and discipline. Therefore, school officials may regulate speech, either in its pure or symbolic form, which causes a “material and substantial” disruption {Tinker v. Des Moines Independent Community School District, 1969, p. 512). At the same time, courts have agreed that the primary purpose of schools is to provide an educated citizenry and to inculcate values reflective of a democratic society. As with other constitutional decisions, the judiciary affords school officials considerable discretion, thus deferring to local control. It is here that the issue of “whose values?” comes into play.

It is widely recognized that school officials may place restrictions on the time, place, and manner of student speech. It is when these officials restrict content that potential ethical conflicts may arise. These concerns came to a head when the U.S. Supreme Court rendered its decision in Hazelwood School District v. Kuhlmeier (1988). Here, the high court ruled that school officials have the authority to exercise reasonable restraint relative to the content of student publications. Although Hazelwood was a school newspaper case, its progeny extended the decision to cover other forms of speech, including “artistic expression.” Basically, the Hazelwood court said that school officials may exercise their judgment if the publication is presented in an open forum and is related to the curriculum. Lower courts have disagreed as to how far this standard may be extended.

In other words, may school leaders censor material because they disagree with the values the speech extols because of the potential harm to young, impressionable minds, or because, as Ravitch contends, that it may be too controversial in the community? Responding to community values may reflect the work of a responsible educator or it could simply be a pretext for viewpoint discrimination. There is also the question as to whose values are being conveyed. A growing number of scholars point out that what were once conceived of as common values do not necessarily have this status today. As Salomone notes:

At no time since the beginning of the common school movement a century and a half ago have we witnessed such a direct challenge to the purpose, content, and structure of mass compulsory schooling or to the very premise underlying the "myth of the common school,” that is, that the values promoted through public education are indeed neutral or at the very least acceptable to Americans across the political and religious spectrum.

(Salomone, 2000, p. 8)

Coming to grips with these issues requires probing the depths of discrimination as it applies to one’s own viewpoint and exploring ethical decision making from a range of perspectives. The four cases in this chapter are provided to assist the reader in such an exploration.

Addressing censorship and viewpoint discrimination, the first two cases expand on themes arising in earlier chapters by illustrating the tensions that occur when free speech rights and freedom of religion come into conflict. The remaining two cases explore how censorship and viewpoint discrimination impact rights related not only to free speech but to equal access and sexual orientation.

In the first case, C.H. v. Oliva (2000), kindergarten students were to make posters of things for which they are thankful. The following year, in first grade, they were asked to bring in a book to read to the other students. In kindergarten, Z.H.’s poster was moved to a less obvious place. The following year, the first-grade teacher would not allow Z.H.’s book to be read. Both situations involved material with religious content.

Fleming v. Jefferson County School District (2002) involves students and parents from the Columbine High School who made tiles to be placed on the school’s walls following the Columbine tragedy. School officials decreed that these tiles could not include anything religious, obscene, or offensive. They were also not to include the names or initials of the victims, nor could they include Columbine ribbons, in that this display was not to be a memorial. Some of the students and their parents challenged the school’s authority to circumscribe the tiles’ contents.

The third case, Gay Straight Alliance v. Boyd (2003), involves pressure to ban a club that addresses the issues of students who are gay. While the Equal Access Act requires the school to allow this club if it opens the door to other clubs, the club was highly controversial. Hence, authorities feared that those who strongly opposed the club would cause substantial disruption in the school.

The issue for the court to decide in Saxe v. State College Area School District (2001) was whether a school policy on anti-harassment was overly broad; however, we have included the case in this chapter because it has profound implications for ethics and the ability of schools to regulate speech on campus. In this case, fundamentalist Christian students challenged a policy which prohibited, among other things, their opportunity to express their views on what they perceived to be the immorality of a gay or lesbian sexual orientation.

Ostensibly an employment dispute relative to a teacher’s input into the curriculum, the last case in this chapter, Boring v. Buncombe County Board of Education (1998), provokes issues aside from its narrow legal determination. Here, we explore what appear to be school officials’ censorship of a drama club play because of its controversial content and the influence of the community on what is taught in schools.

CASE STUDY 9.1: C.H. v. OLIVA, 226 F. 3d 198 (3rd Cir. 2000)

In the fall of 1994, Z.H. was a kindergarten student at Haines Elementary School in Medford, Newjersey. As Thanksgiving approached, Z.H.’s teacher asked her students to prepare a poster illustrating something they were thankful for. Z.H. drew a picture of Jesus. All the children’s posters were then displayed in a hallway outside the classroom. Soon after, on a day when Z.H.’s kindergarten teacher was away, an unnamed school board employee removed Z.H.’s poster from the hallway, because of its religious nature. When Z.H.’s teacher returned the following day, she immediately put the poster back up in the hallway, although in a less prominent location.

At that time, both Z.H. and his mother were made aware of the removal of the poster and the reason for its removal. However, neither Ms Oliva (Z.H.’s next teacher), nor Ms Pratt (the school principal), nor Mr Johnson (the school superintendent), nor the board of education was aware of the removal of the poster. The Medford Township Board of Education did not have an established policy for removal of such items.

In February 1996, Z.H. was in Ms Oliva’s first-grade class. As a reward for attaining a certain level of reading proficiency, Ms Oliva allowed her first-grade students to bring a book to school to read to the other students. She screened the books to ensure that the length and complexity were appropriate for the grade level of the students. Z.H. qualified for this incentive. He brought in a favorite book, The Beginner’s Bible: Timeless Children ’s Stories. He wanted to read the story, “A Big Family,” which is an adaptation of the reconciliation ofjacob and Esau from the Book of Genesis.

The story reads:

Jacob travelled [sic] far away to his uncle’s house. He worked for his uncle, taking care of sheep. While he was there, Jacob got married. He had twelve sons. Jacob’s big family lived on his uncle’s land for many years. But Jacob wanted to go back home. One day, Jacob packed up all his animals and his family and everything he had. They travelled [sic] all the way back to where Esau lived. Nowjacob was afraid that Esau might still be angry at him. So he sent presents to Esau. He sent servants who said, "Please don’t be angry anymore.” But Esau wasn’t angry. He ran to Jacob. He hugged and kissed him. He was happy to see his brother again.

(C.H. v. Oliva, 2000, p. 204)

The language of the story is appropriate for young children, does not contain scriptural references, and does not mention a deity or religion. However, Ms Oliva told Z.H.’s mother, C.H., that Z.H. could not read the story because of its religious content. She reasoned that it might influence other students. She did allow Z.H. to read the book to her privately.

Z.H.’s mother sought out the principal, Ms Pratt, who agreed with Ms Oliva. Ms Pratt stated that reading the story was the equivalent of praying and allegedly reminded of past complaints, stated that the story “might upset Muslim, Hindu or Jewish students.” She added that there was “no place in public school for the reading of the Bible.” She then told C.H. that she might want to take Z.H. out of public school because he does not “appear to be public school material” (C.H. v. Oliva, 2000, p. 204). C.H. requested an appointment to talk to Z.H.’s teacher again, but this was not acknowledged. She made formal and informal requests to various Medford defendants that Z.H. be allowed to read the book and asked for a formal apolog)’. These requests were not granted.

C.H. filed suit on behalf of her minor son, alleging that Z.H.’s First Amendment right to free speech was violated. Ruling in favor of the school district, a federal district court found no constitutional violation regarding either the kindergarten or the first-grade incident. The Third Circuit Court of Appeals ruled that the parents’ complaint failed to state claims against the school. The court’s majority decided not to discuss this issue further, but instead sent the case back to the trial court to give the parents an opportunity to state a claim if they so chose. (No further decisions appear on computerized databases.) Instead, the court turned to jurisdictional issues related to whether claims could be brought against the New Jersey State Department of Education.

Although the majority refrained from speaking further on this topic, Judge Alito, then a member of the federal circuit court, joined by Judge Mansmann, wrote a rather lengthy dissent. Although their opinion does not hold any legal force, it does provide a good overview of the legal and policy issues presented by this case. Here, the dissenting judges address what they characterize as the issue that the court “evades,” which is “whether Zachary’s constitutional right to freedom of expression was violated if, as the complaint alleges, his poster was given less favorable treatment than it would have received had its content been secular rather than religious” (C.H. v. Oliva, 2000, p. 209). If so, then the school discriminated against Z.H. based on his poster’s religious content. As Judge Alito concludes:

I would hold that discriminatory treatment of the poster because of its “religious theme” would violate the First Amendment. Specifically, I would hold that public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment and provided that the school’s restriction on expression does not satisfy strict scrutiny. This conclusion follows from the following two propositions: first, even in a “closed forum,” governmental “viewpoint discrimination” must satisfy strict scrutiny and, second, disfavoring speech because of its religious nature is viewpoint discrimination ...

Accordingly, viewpoint discrimination is prohibited even in a non-public forum if strict scrutiny cannot be satisfied, and discrimination based on the religious content of speech is viewpoint discrimination. It follows that publicschool authorities may not discriminate against student speech based on its religious content if the discrimination cannot pass strict scrutiny.

(C.H. v. Oliva, 2000, p. 204)

As the dissenting judges emphasize, school officials have the authority to prevent a student from talking about the Bible when the assignment has nothing to do with religion. This, however, they maintain, is not the circumstance in this case:

Taking down Zachary’s Thanksgiving poster and replacing it in a less conspicuous location because of its religious content was plainly viewpoint, not subject matter, discrimination. The subject matter of the poster was specified by Zachary’s teacher: something for which he was thankful as the Thanksgiving holiday approached. His poster fell within the specified subject matter, and it is not alleged that the poster was subjected to discriminator}' treatment because of that subject. Rather, the poster was allegedly given discriminatory treatment because of the viewpoint that it expressed, because it expressed thanks for Jesus, rather than for some secular thing ...

(C.H. v. Oliva, 2000, p. 212)

In summing up, Judge Alito rejects the possibility that the school may be endorsing religion by displaying Z.H.’s poster:

A reasonable observer would not have viewed the exhibition of Zachary’s Thanksgiving poster along with the secular posters of his classmates as an effort by the school to endorse religion in general or Christianity in particular. An art display that includes works of religious art is not generally interpreted as an expression of religious belief by the entity responsible for the display.

(C.H. v. Oliva, 2000, p. 212)

Questions for Discussion

• 1. How might one view this case from a justice perspective? Was Z.H. treated fairly?
• 2. Was Z.H. treated in a caring manner? Why or why not?
• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of Ms Oliva? Principal Pratt?
• 5. Through a best interests’ perspective, was Z.H. afforded his rights or shown his responsibilities? In this respect, how might this situation have been handled differently? Better? Was Z.H. afforded respect?

Dignity? Why or why not? What issues relative to responsibility do you see in this case?

6. What would you have done in this situation if you were Ms Oliva? Principal Pratt? Superintendent Johnson?

CASE STUDY 9.2: FLEMING v. JEFFERSON COUNTY

SCHOOL DISTRICT, 298 F.3d 918 (10th Cir. 2002)

Columbine High School was the site of a multiple murder-suicide on April 20, 1999. That morning, two students, Eric Harris and Dylan Klebold, came to school with firearms. They shot and killed 12 fellow students and one teacher before turning the guns on themselves. Columbine High School was closed temporarily after the killings. In the summer of 1999, the decision was made to reopen the school. The school district recognized that returning to school could have an impact on the mental health of students. Their memories of the incident would be reawakened by visual cues in the building itself. The District tried to change the appearance of the school and then sought ways to reaccustom the students to the building.

Two years prior to the shootings, the art department had initiated a tile art project to decorate the hallways of the school. Art class students painted 4x4 inch tiles, which were then glazed, fired, and adhered to the hallway walls above the molding. After the shooting, the school librarian, Elizabeth Keating, and the art teacher, Barbara Hirokawa, proposed expanding the tile art project to the greater student population. They reasoned that the project would allow the students an opportunity to visit the building and would enable them to be a part of the remodeling of the school. It would also help in the healing process. Ms Keating and Ms Hirokawa sought approval for the project from the District’s area administrator, Barbara Monseu. Ms Monseu consulted other school district administrators, including mental health workers who were assisting with the tragedy’s aftermath.

The school officials wanted to maintain a positive learning environment and did not want the tiles to become a memorial to the events of April 1999. There were already memorial plaques in the office area and near the library, as well as a sandstone memorial outside. Consequently, specific guidelines were drawn up for the content of the tiles. The tiles were to include neither religious symbols, nor the names or initials of victims, nor the date April 20, 1999, nor Columbine ribbons, nor anything obscene or offensive. The guidelines stated that the tiles would be reviewed before firing and would not be fired or hung if they violated the guidelines. The Jefferson Foundation and the Columbine Memorial Account, both funded through private donations, supplied the materials for the project. The

Columbine High School administration had discretion over the spending of these funds.

In the summer of 1999, the school district expanded the tile art project to include members of the affected community. They invited victims’ families, rescue workers, health care workers, as well as current and new students to participate. The sessions were held outside school hours and were completely voluntary. Hundreds of participants attended the separate session that was set up for rescue workers and community members. Teachers from the school were on hand at the tile-painting sessions. Tables were set up with samples of tile designs and the participants were informed of the guidelines for the tiles but were not given written information. Specific religious symbols that were prohibited were not identified in the samples displayed.

Some of the participants were dissatisfied with the guidelines and restrictions put on the tile art project. They told the staff who were supervising that they wanted to include the names of their children, as well as religious symbols. Some of messages on the tiles said, “Jesus Christ is Lord,” “4/20/99 Jesus Wept,” “There is no peace says the Lord for the wicked” (Fleming v. Jefferson County School District, 2002, p. 921). The teachers informed the families that while they could paint the tiles as they wished, those tiles violating the guidelines would be fired separately and not installed on the walls. These tiles would be given back to the families for their own use.

The intent was to have each tile reviewed before it was sent for firing. Teachers instructed parent volunteers who were assisting with the installation of the tiles to put aside any questionable tiles. Despite these measures, some tiles, which did not comply with the guidelines, were affixed to the walls. This was due mainly to the volume of tiles, about 2,100. When Ms Monseu inspected the building after the tiles were installed, she observed between 80 and 90 tiles that did not conform to the guidelines. They depicted crosses, anarchy or gang symbols, a Star of David, a teacher’s name, a reference to the date 4/20, the Columbine ribbon, a bloody skull, and one tile painted in red that was thought to be troubling. She had these tiles removed.

Ms Monseu met with the victims’ families in September. She relaxed some of the restrictions for the tiles so that victims’ names, initials, dates other than 4/20/99 and the Columbine ribbon could be included. She kept the restrictions on religious symbols, the shooting date, and offensive or obscene material. None of the participants at the meeting returned to the school to paint another tile as “they had made their expressions previously or been denied the opportunity to paint the tiles they wanted to paint” (Fleming v. Jefferson County School District, 2002, p. 922).

Relatives of two of the victims, Daniel Rohrbough and Kelly Fleming, sued the school district and others claiming violations of their free speech rights. A federal district court found that the speech involved was private rather than school sponsored and that it occurred in a limited public forum. Also, prohibiting the religious tiles violated the doctrine of viewpoint neutrality.

Reversing this decision, the Tenth Circuit Court of Appeals maintained that the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988) had not required viewpoint neutrality “given the types of decisions that the Hazelwood Court recognized faced educators in ‘awakening the child to cultural values’ and promoting conduct consistent with ‘the shared values of a civilized social order’ ...” (Fleming v. Jefferson County School District, 2002, p. 928). As the court points out:

If the District were required to be viewpoint neutral in this matter, the District would be required to post tiles with inflammatory and divisive statements, such as "God is Hate,” once it allows tiles that say "God is Love.” When posed with such a choice, schools may very well elect to not sponsor speech at all, thereby limiting speech instead of increasing it. The District could be forced to provide an opportunity for potentially thousands of participants to repaint their tiles without any meaningful restrictions by the District, leading to a potentially disruptive atmosphere in which to try to educate the students of Columbine High School.

(Fleming v. Jefferson County School District, 2002, p. 934)

Applying Hazelwood's (1988) public forum analysis, the Tenth Circuit Court determined that the school district was within its power to regulate the tile project in that it did not constitute a public forum and it did bear the imprimatur of the school because “the school permanently integrated the tiles into the school environment, and was significantly involved in the creation, funding, supervision, and screening process of the tile project” (Fleming v. Jefferson County School District, 2002, p. 931). In addition, the project restrictions were reasonably related to legitimate pedagogical concerns in that school officials wanted the school to remain as a positive learning environment and not as a memorial to the tragedy. As to the religious restrictions, they wanted to keep the walls from becoming a place for religious debate.

Questions for Discussion

• 1. How might one view this case from a justice perspective? Were the people who provided tiles treated fairly? Was the court’s decision fair?
• 2. Were those who submitted tiles treated in a caring manner? Why or why not?

• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of Ms Monseu?
• 5. Through a best interests’ perspective, were those students who provided tiles afforded their rights or shown their responsibilities? In this respect, how might this situation have been handled differently? Better? Were these students afforded respect? Why or why not?
• 6. What would you have done in this situation if you were Ms Monseu? Ms Keating, the librarian? Ms Hirokawa, the art teacher?

CASE STUDY 9.3: GAY STRAIGHT ALLIANCE v. BOYD,

258 F. Supp. 2d 667 (E.D. KENTUCKY 2003)

This case involves a request for an injunction against a ban of a school club, the Gay Straight Alliance (GSA), at the Boyd County High School (BCHS). The plaintiffs, seven students at the high school who formed the GSA group and their faculty advisor, Kaye King, cite violations of their rights under the Equal Access Act (EAA). The defendants in the case are the Boyd County Board of Education, five board members, the school district superintendent, Dr William Capehart, and the principal of Boyd County High School, JerryJohnson.

Early in 2002, a group of students at BCHS circulated a petition to create a new club. The mandate of the club, the GSA, was to provide a safe venue to air concerns about harassment and to promote acceptance and tolerance, regardless of sexual orientation. There was a problem at the high school created by some students’ intolerance of gay individuals and two students had dropped out of the school, citing antigay harassment as one of the reasons for their departure.

The testimony described several incidents of antigay harassment, including the use of epithets such as “faggot kisser,” “queer,” “homo,” and “f... ing faggot.” These epithets were used in the classroom, hallways, and even via megaphone at a basketball game. During one peaceful silent protest by GSA members, other students threw things at them.

In the spring 2002 semester, Kaye King, an English teacher, became aware of the GSA petition. She discussed this with Principal Johnson, who told her that the student who was spearheading the petition had already approached him. He noted that the school would have to grant status to the club, as the students were very savvy when it came to the legal issues involved. He was concerned about the need to approve the club in order to prevent legal action against the school district. Principal Johnson discussed the issue with Superintendent Capehart, who was in favor of establishing the club because he felt it was the right thing to do. Kaye King then agreed to be the faculty sponsor of the GSA club.

Back at the high school, word of the GSA petition spread among the students. There were confrontations in the hallways, and some students wore T-shirts with slogans such as “I’m Straight” and “Adam and Eve, not Adam and Steve.” Around this same time, a group of students asked to apply for club status for the GSA. This application is a requirement of the school, and submissions are made to the school’s Site-Based Decision-Making Council, consisting of three teachers, two parents, and the principal. School administrators encouraged the GSA to hold off on their formal application for a month to let the current dispute settle down, and the students agreed to the delay.

The Boyd County High School had another group called the BCHS Diversity Awareness Council, whose mandate was to advise on diversity and equity issues. During the month’s hiatus, this council held two meetings. They discussed the proposed GSA club as well as the harassment of gay students. The council’s suggestion was to change the name of the proposed club, removing the word, “gay.” The GSA group refused this suggestion, saying that it would be “defeatist” to back down on the proposed name (Gay Straight Alliance v. Boyd, 2003, p. 671).

In late March 2002, the GSA group made its first formal application for club status. Although Principal Johnson had made the suggestion to hold off for a month, he denied the application, saying it had come too late in the school year. After the meeting he informed Kaye King that the GSA club’s application would easily “slide right through” (Gay Straight Alliance v. Boyd, 2003, p. 672) in the fall when there would be many club applications to consider.

In September 2002, the GSA again applied for club status. At its inaugural meeting for the 2002-2003 school year, the Site-Based Decision-Making Council approved 20 applications for club status. The GSA club’s application was the only one denied. Three clubs, the Drama, Key, and Pep clubs, were not accepted because their submissions were made too late. Approved clubs included the Future Business Leaders of America (FBLA), Beta Club, Future Farmers of America (FFA), Future Career and Community Leaders of America (FCCLA), Human Rights Club, 4-H, Health Occupations Students of America (HOSA), and Y-Club. The Fellowship of Christian Athletes (FCA), synonymous with Christian Fellow Club and the Bible Club, was also approved. All the clubs except HOSA had been listed in the previous year’s student handbook as extracurricular activities.

In a letter to the council on behalf of the GSA, the American Civil Liberties Union (ACLU) outlined the requirements of the Equal Access Act. The council did not consider the ACLU letter at its September meeting; instead they put it off until October. After an executive session at the

October 28 meeting, the council announced the approval of three clubs, the Key, the Drama Club, and the GSA. Audience reaction to the announcement, in the words of the principal, was “open hostility” (Gay Straight Alliance v. Boyd, 2003, p. 673). To calm fears, the school administration sent a letter to school staff and to parents in the school community, explaining the rationale for its decision.

Two days later, on October 30, there was a protest outside the school doors. The protest was directed at the council approval and establishment of the GSA club. One hundred students, or about 10% of the population, were outside during the protest. Although the protesters taunted students by saying that if they entered the school they would be supporting “faggots,” the protest did not prevent students from entering the school. GSA members were silent during the protest. Principal Johnson and Assistant Principal Richard Cyrus spoke to the crowd and encouraged them to go to class. If they did not, they could move their protest to the parking lot. Some students moved to the parking lot while others entered the school. Classes proceeded without incident. The following Monday, November 4, 2002, approximately half the students were absent.

Neither the protest nor the boycott disrupted classes significantly at the high school. There was only one incident of a disruption in class by GSA supporters or members. However, Kaye King received threatening letters, and her car was damaged. After approval of the GSA club, the board of education and Superintendent Capehart became the focus of anti-GSA sentiment. Parents placed many phone calls to the administration expressing concerns for the safetv of the school. Although callers were irate, no parents withdrew their children from the school.

On December 20, 2002, Dr Capehart proposed banning all noncurricular clubs for the remainder of the 2002-2003 school year. That same day, the board met to consider Dr Capehart’s proposal of refusing recognition of all noncurricular clubs. They then wrote a closed forum policy to be implemented in July 2003, thereby avoiding EAA dictates. A closed forum policy disallows any noncurriculum-related groups. A closed forum school can contravene the Equal Access Act if any of its groups are determined to be noncurricular.

At a meeting on December 17, 2002, the council declined to vote on banning all noncurricular clubs, thereby allowing the GSA club to continue. Later, at an emergency meeting on December 20, the board voted unanimously to suspend all curricular and noncurricular clubs at BCHS for the remainder of the school year. The board cited the disruption that the GSA club had caused as their reasoning for the suspension. However, testimony revealed that opponents of the club, not GSA members, had caused the disruption.

According to Kaye King, Principal Johnson visited her classroom on January 2, 2003, and suggested that the GSA club could apply to use school facilities as an outside organization. They could meet before and after school hours but not during the homeroom period. On behalf of the GSA club, King requested permission to use her classroom once a week before school for GSA club meetings. However, on January 7, Principal Johnson and Dr Capehart denied the GSA club’s application. Principal Johnson said that no groups or clubs would be permitted to use school grounds. Since that time, the GSA club had not met at the school nor used the intercom or hallways for announcements. From time to time, club members gathered in Kaye King’s classroom, but they did not conduct club business there. After the ban, attendance at off-campus meetings declined. Between 20 and 30 students attended the on-campus meetings; attendance at off-campus meetings was down to six.

Meanwhile, many groups continued to use school facilities before and after school and during the homeroom period. These groups included the Future Farmers of America (FFA), Future Career and Community Leaders of America (FCCLA), Future Business Leaders of America (FBLA), and HOSA. In addition, the Y-club, Mock Trial and Teen Court, academic teams, athletics teams, and cheerleading squads used BCHS facilities during non-instructional time. School officials admitted to this practice. The Boyd County assistant superintendent, Dr Dawn Tackett, explained that state regulation requires students be given opportunities for involvement, and some courses require participation in an associated club.

A federal court for the Eastern District of Kentucky determined that the school district had allowed at least four other noncurricular clubs to meet (Bible Club, Drama Club, Beta Club, and Executive Councils); therefore, under the Equal Access Act, unless the GSA caused a material and substantial disruption (which it had not), it too must be allowed to meet. Thus, the court was able to grant the preliminary injunction requested by the GSA. The court also stressed that the club itself must cause the material and substantial disruption and not others’ reactions to it:

Assuming arguendo that the anti-GSA faction was sufficiently disruptive to materially and substantially interfere with the requirements of appropriate discipline, Defendants are not permitted to restrict Plaintiffs speech and association as a means of preventing disruptive responses to it.

(Gay Straight Alliance v. Boyd, 2003, p. 690)

The court determined that GSA members would be irreparably injured without the preliminary injunction, the injunction would not harm others, and finally that granting an injunction would serve the public interest. Regarding the latter, the court noted:

While the primary teachers of tolerance should always be the parents and not the teachers and school administrators, school officials can play a vital role in fostering tolerance to its students. If, by permitting the GSA Club to meet, students are less likely to be the subject of hate crimes by fostering tolerance of the school community, the public interest is served.

(Gay Straight Alliance v. Boyd, 2003, p. 692)

Questions for Discussion

• 1. How might one view this case from a justice perspective? Were the school officials fair to the GSA? Was the court’s decision fair?
• 2. Did school officials treat the GSA in a caring manner? Why or why not?
• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of Kaye King? Principal Johnson? Superintendent Capehart?
• 5. Through a best interests’ perspective, were the GSA members afforded their rights? In this respect, how might this situation have been handled differently? Better? Who acted responsibly? Were GSA members afforded respect? Dignity? Why or why not?
• 6. What would you have done in this situation if you were Kaye King? Principal Johnson? Superintendent Capehart?

CASE STUDY 9.4: SAXE v. STATE COLLEGE AREA SCHOOL

DISTRICT, 240 F.3d 200 (3rd Cir. 2001)

In August 1999, the State College Area School District (SCASD) adopted an Anti-Harassment Policy. This policy begins by setting forth its goal— “providing all students with a safe, secure, and nurturing school environment”—and noting that “disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and wellbeing [sic] of the individual” {Saxe v. State College Area School District, 2001, p. 202). The second paragraph contained what appeared to the court to be the policy’s operative definition of harassment:

Harassment means verbal or physical conduct based on one’s actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.

(Saxe v. Stale College Area School District, 2001, p. 202)

The school district policy continued by providing several examples of “harassment”:

Harassment can include any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above. Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display or circulation of written material or pictures.

(Saxe v. State College Area School District, 2001, pp. 202-203)

These examples are followed by a lengthy section captioned “definitions,” which defines various types of prohibited harassment, including “sexual harassment,” “racial and color harassment,” “harassment on the basis of religion,” “harassment based on national origin,” “disability harassment,” and “other harassment” on the basis of characteristics such as “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values, etc.” The definitions state that harassment “can include unwelcome verbal, written or physical conduct directed at” the particular characteristic (Saxe v. State College Area School District, 2001, p. 203).

The court noted these examples of specific types of harassment are also provided. For example, “racial and color harassment” is said to include “nicknames emphasizing stereotypes, racial slurs, comments on manner of speaking, and negative references to racial customs.” Religious harassment reaches “derogatory comments regarding surnames, religious tradition, or religious clothing, or religious slurs or graffiti.” National origins harassment includes “negative comments regarding surnames, manner of speaking, customs, language, or ethnic slurs.” Harassment on the basis of sexual orientation extends to “negative name calling and degrading behavior.” Disability harassment encompasses “imitating manner of speech or movement” (Saxe v. State College Area School District, 2001, p. 203).

The policy states that “any harassment of a student by a member of the school community is a violation of this policy” (Saxe v. State College Area School District, 2001, p. 203). It establishes procedures for the reporting, informal mediation, and formal resolution of complaints. In addition, this policy sets a list of punishments for harassment, which includes sanctions such as warnings, exclusion, suspension, expulsion, transfer, termination, discharge and other measures such as training, education, or counseling.

At the time of the proceeding, the plaintiff, David Saxe, was a member of the Pennsylvania State Board of Education and served as an unpaid volunteer for SCASD. He was the legal guardian of both student plaintiffs, who were enrolled in SCASD schools. After the Anti-Harassment Policv was / adopted, Saxe filed suit in District Court, alleging that the policy was unconstitutional under the First Amendment’s Free Speech Clause. In his complaint, he alleged that:

[A] 11 plaintiffs openly and sincerely identify themselves as Christians. They believe, and their religion teaches, that homosexuality is a sin. Plaintiffs further believe that they have a right to speak out about the sinful nature and harmful effects of homosexuality. Plaintiffs also feel compelled by their religion to speak out on other topics, especially moral issues.

(Saxe v. State College Area School District, 2001, p. 203)

Mr Saxe and his children further alleged that they feared that they were likely to be punished under the school’s policy for speaking out about their religious beliefs, engaging in symbolic activities reflecting those beliefs, and distributing religious literature. They sought to have the policy declared unconstitutionally vague and overly broad and for its operation to be discontinued.

A federal district court granted SCASD’s motion to dismiss, holding that the policy was constitutional on its face. The court found that the policy’s operative definition of harassment, as contained in its second paragraph, prohibited “language or conduct which is based on specified characteristics and which has the effect of ‘substantially interfering with a student’s educational performance’ or which creates a hostile educational atmosphere.” The court went on to observe that this standard resembles what courts and agencies have used to define harassment under laws such as Title VII, Title IX, and the Pennsylvania Human Relations Act. Thus, the court held that the policy does not prohibit “anything that is not already prohibited by law” and therefore cannot be unconstitutional. Rejecting the plaintiffs’ vagueness argument, the court asserted that “a more precise definition of harassment, like Justice Stewart’s famous description of‘pornography,’ may be virtually impossible.”

The district court dismissed Saxe’s free speech claims based on its conclusion that “harassment,” as defined by federal and state anti-discrimination statutes, is not entitled to protection under the First Amendment. The court rejected Saxe’s characterization of the policy as a “hate speech code,” holding instead that it merely prohibits harassment that is already unlawful under state and federal law. Holding the policy constitutional, the district court concluded that the school district’s policy prohibited no more speech than was already unlawful under federal and state anti-discrimination laws.

The Third Circuit Court of Appeals overruled this decision. Writing for the majority, Judge Alito reasoned that there was no categorical “harassment exception” to the Free Speech Clause of the First Amendment. In addition, the SCASD policy prohibits a substantial amount of speech that would not constitute harassment under either federal or state law. For example, the policy prohibits harassment based on personal characteristics that are not protected under federal law. Titles VI and IX and other relevant federal statutes cover only harassment based on sex, race, color, national origin, age, and disability.

The SCASD policy is much broader, reaching, at the extreme, a catch-all category of “other personal characteristics,” including things such as “clothing,” “appearance,” “hobbies and values,” and “social skills.”

By prohibiting disparaging speech directed at a person’s "values,” the Policy strikes at the heart of moral and political discourse—the lifeblood of constitutional self-government [sic] (and democratic education) and the core concern of the First Amendment. That speech about "values” may offend is not cause for its prohibition, but rather the reason for its protection: "a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

(Saxe v. State College Area School District, 2001, p. 201, quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949))

Questions for Discussion

• 1. Can civility be legislated? Why or why not? Explain your answer.
• 2. In this case, the school policy was illegal because it was overly broad. How else might school officials have achieved their goal through the ethic of justice? Through the ethic of care?
• 3. How can school leaders model respect for the sexual orientation of some students while also respecting the sincere religious beliefs of others who oppose this orientation?
• 4. How can the rights of both groups be balanced when, as in this case, some individuals are bound by their religion to speak openly about their beliefs?
• 5. What does the ethic of critique say about this scenario? What does the profession expect of school leaders in this type of situation?

CASE STUDY 9.5: BORING v. BUNCOMBE COUNTY BOARD

OF EDUCATION, 136 F.3d 364 (4th Cir. 1998)

Margaret Boring was a teacher for 12 years at the Charles D. Owen High School in Buncombe County, North Carolina. As a drama coach, she often entered her students in regional and state competitions. In the past, her students had won several awards, and some had gone to college on drama scholarships.

In the fall of 1991, Ms Boring selected the play “Independence,” by Pulitzer-Prize-nominated author Lee Blessing, and chose four students from her advanced drama class to perform it in a state-wide competition. As was her custom, Ms Boring gave the principal the name of the play she had chosen. She did not disclose to him the powerful nature of the play, which depicted a “dysfunctional single-parent family—a divorced mother and three daughters; one a lesbian, another pregnant with an illegitimate child” (Boring v. Buncombe County Board of Education, 1998, p. 366).

Margaret Boring’s students performed the play at a regional competition and won 17 of 21 awards. Before going to the state competition, Margaret offered to have her students perform a scene from the play for an English class at the school. Margaret advised the English teacher about the mature nature of the play and suggested that students bring in signed parental permission slips before viewing the performance. After this in-class performance, a parent of one of the students in the English class complained to the principal, Fred Ivey. Following up on the parent’s complaint, Mr Ivey requested a script of the play from Margaret. After reading the script, Mr Ivey informed Ms Boring that the play would not be performed at the upcoming state competition. However, after hearing a plea from Margaret and the parents of the actresses, Mr Ivey agreed that the play could be entered into the state competition if the offending portions were removed. Margaret entered the play in the state competition, and the performance took second place.

Mr Ivey requested a transfer from the school for Margaret in June 1992, noting that her actions the previous school year had caused conflicts. The superintendent of the Buncombe County School District, Dr Yeager, approved the transfer. He stated that Margaret Boring had failed to consider the provisions of the district’s controversial materials policy when she produced the play. This policy was put in place to provide some parental control over what their children are exposed to at school. Margaret contended that the policy was amended only after the controversy to include dramatic productions.

Ms Boring appealed her transfer, but it was upheld by the Board of Education at a hearing on September 2, 1992. During the public discussion at the hearing, the play was called “obscene,” and Ms Boring was accused of being immoral. She brought suit against the board, its members, the superintendent, Dr Yeager, and the principal, Fred Ivey, citing a violation of her rights to free speech and due process.

Ms Boring brought multiple claims to the federal district court, including First and Fourteenth Amendment due process claims under the United States Constitution and state constitutional claims relative to free speech, due process, and deprivation of liberty. The district court ruled against Ms Boring on all these claims.

On appeal, the Fourth Circuit Court rendered a decision only on the First Amendment issue, which Ms Boring had appealed, and on the narrow question of: “whether a public high school teacher has a First Amendment right to participate in the makeup of the school curriculum through the selection and production of a play” (Boring v. Buncombe County Board of Education, 1998, p. 366). In ruling against Ms Boring, the court’s majority stated that the answer to this question is “no.” The court maintained that selection of the play did not present a matter of public concern, which is protected by the First Amendment, that Ms Boring’s speech was a private concern only, and that the case was merely an employment dispute. The court also determined that the school administration had a legitimate pedagogical interest in regulating the curriculum.

Quoting Plato’s Republic, a letter written by Edmund Burke, and Justice Frankfurter’s discussion of a university’s “four essential freedoms,” this court determined that “the school, not the teacher, has the right to fix the curriculum” (Boring v. Buncombe County Board of Education, 1998, pp. 370-371). Citing Connick v. Myers (1983, pp. 146-147), the Boringcourt concluded:

Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service, which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.

(Boring v. Buncombe County Board of Education, 1998, p. 372, n. 2)

In a strong dissent, Judge Hamilton maintained that this case is far from the “ordinary employment dispute” (Boring v. Buncombe County Board of Education, 1998, p. 374) that the majority describes.

Instead, as gleaned from a fair reading of the complaint, this is a case about a school principal, Fred Ivey, and a county school board, the Buncombe County Board of Education (the Board), who targeted Margaret Boring as a scapegoat and used her to shield them from the "heat” of the negative outcry resulting from the performance of "Independence.” This is also a case about a dedicated teacher who, contrary to the implication of the majority and concurring opinions, in no way violated any aspect of an approved curriculum; who followed every previously required standard set forth for the selection and approval of the school production; who, when requested to do so, redacted certain portions of the production and only permitted its performance after that performance had been explicitly approved by her principal, Mr. Ivey; yet, who nevertheless lost her position as a result of the production, all for the sole purpose of shielding the principal and the Board from the wrath of the public outcry ...

(Boring v. Buncombe County Board of Education, 1998, p. 374)

Therefore, from Judge Hamilton’s perspective, this case needs only to address one question and that is whether the school board can censor Ms Boring’s speech without providing a “legitimate pedagogical concern [for] justifying the restriction” (Boring v. Buncombe County Board of Education, 1998'p. 374).

Addressing the concurring judges’ concerns that requiring the school board to provide this justification would “consign ... to the federal judiciary the responsibility for managing our public schools,” Judge Hamilton responded with this rejoinder:

Nothing could be further from reality ... any limited intrusion, whatever it may be, is precisely the intrusion required by the Supreme Court’s decision in Hazelwood. The Supreme Court established the Hazelwood standard and, in doing so, clearly envisioned some minimal intrusion into public school management insofar as school administrators would be required to articulate a legitimate pedagogical concern for censoring a student’s speech. The Supreme Court apparently did not believe this standard to be too ambiguous for district and appellate courts to apply, nor did it apparently believe this standard to place an unjustly onerous burden on school officials. Therefore, even if the parade of horribles feared by the concurrences came to pass, it is a parade of horribles created by a standard articulated by the Supreme Court and one to which we are bound to adhere until the Supreme Court states otherwise.

(Boring v. Buncombe County Board of Education, 1998, pp. 374-375)

Questions for Discussion

• 1. How might one view this case and the court’s decision from a justice perspective? Was the action taken against Ms Boring fair? Was the court’s decision fair?
• 2. Was Ms Boring treated in a caring manner? Why or why not? How might school officials have treated Ms Boring in a more caring manner?
• 3. How might this case be viewed through the lens of critique?
• 4. What would the profession expect of Ms Boring? Superintendent Yeager? Principal Ivey?
• 5. Through a best interests’ perspective, was Ms Boring afforded respect? Dignity? Why or why not? What message does Ms Boring’s treatment send to students? To other teachers? What message, if any, does the court’s decision send?
• 6. What would you have done in this situation if you were Superintendent Yeager? Principal Ivey?

REFERENCES

Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998).

C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000).

Fleming v. Jefferson County School District, 298 F.3d 918 (10th Cir. 2002).

Gay Straight Alliance v. Boyd, 258 F. Supp. 2d 667 (E.D. Kentucky 2003).

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

Ravitch, D. (2003). The language police: How pressure groups restrict what students learn.

New York, NY: Alfred A. Knopf.

Salomone, R. C. (2000). Visions of schooling: Conscience, community, and common education. New Haven, CT: Yale University Press.

Saxe v. State College Aiea School District, 240 F.3d 200 (3rd Cir. 2001).

Tinkerv. Des Moines Independent Community School District, 393 U.S. 503 (1969).

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

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