More developments for student expression at the high court

We’re not even two weeks into the Supreme Court’s term and there are already several important developments to tell you about. Last week we gave you an overview of the student expression cases making their way to the justices in the coming weeks. Today we have an update on one of them and two others to note.

  • First, the Court on Tuesday decided not to hear R.O. v. Ithaca City School District, the case involving a censored stick figure cartoon in a high school student newspaper. The SPLC has called the lower court decision the most damaging for student journalism since Hazelwood, and the justices have allowed that opinion to stand. It’s important to note that the decision only applied in the Second Circuit states of New York, Vermont and Connecticut. The case is not over, however. The courts have not yet addressed whether the underlying guidelines used to censor the students are constitutional. We’ll continue to track the lower-court developments on that issue.
  • In the previous post, we noted the off-campus student speech cases that the Supreme Court may take up. On Tuesday we had a new entry in the race, a petition in Kowalski v. Berkeley County Schools. In Kowalski, a West Virginia high school senior was suspended for created a MySpace group called “S.A.S.H.” Kara Kowalski claims the acronym stands for Students Against Sluts Herpes, but another student who joined the group claims it actually stood for “Students Against Shay’s Herpes” — referring to another student at the school. The group itself contained a variety of insults about Shay, and Shay’s parents complained to the school. After Kowalski was suspended, she sued, claiming the school’s punishment violated her First Amendment rights because the group was created off-campus on her own time. In July, the 4th U.S. Circuit Court of Appeals sided with the school, finding the group created a disruption at school. The case is significant because it represents the first time a court of appeals has said off-campus speech is subject to the Tinker “substantial disruption” censorship standard. The court also seemed willing to go further in future cases, and allow schools to punish off-campus speech even if it isn’t disruptive:

    To be sure, a court could determine that speech originating outside of the schoolhouse gate but directed at persons in school and received by and acted on by them was in fact in-school speech, [and punishable under the Supreme Court’s other student speech cases.]

    Kowalski is now urging the Supreme Court to hear and overturn that decision. This makes four off-campus, online speech cases that the justices are being asked to take, joining Doninger v. Niehoff, J.S. v. Blue Mountain School District and Layshock v. Hermitage School District. The Court will meet Oct. 28 to decide whether it will take Doninger. The other three cases are months away from review.

  • Finally, it’s worth noting another case the Court has decided not to take up. In Defoe v. Spiva, a Tennessee high school student challenged his school’s ban on displays of the Confederate flag. School officials claimed the Confederate symbol would create a disruption in a racially-charged environment. Last November, the 4th U.S. Circuit Court of Appeals upheld the ban — but it was the way it did so that alarmed many First Amendment advocates. While the court agreed with the school that the flag could be prohibited based on a reasonable forecast of a disruption (the Tinker standard), the majority also said the school could do so anyway. It suggested expressions of “racial hostility” can be categorically prohibited by schools, even if there is not disruption involved:

    A fair look at Tinker, Fraser, Hazelwood, and Morse thus suggests that the general rule is that school administrators can limit speech in a reasonable fashion to further important policies at the heart of public education.

    As another Sixth Circuit judge wrote after the student’s lawyers asked the court to rehear the case:

    The panel majority eviscerates the core holding of Tinker… that student speech can be suppressed only based on its disruptive potential, not on its content. There is no indication in Tinker that its rules are any different if the speech at issue is deemed, by either a school or an appellate court, to be offensive, “hostile,” or “contemptuous.”

    Nevertheless, the Supreme Court’s decision not to take this case allows the opinion to stand in Kentucky, Michigan, Ohio and Tennessee.