Student Protests and the Constitution

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Student Protests and the Constitution

As the media applauded the stu­dent protests against guns, most reporters failed to under­stand the nature of con­sti­tu­tional law and the First Amendment.

Sim­ply put, stu­dents who are not 18 years old don’t, for the most part, have many rights under the Con­sti­tu­tion dur­ing the school day. Schools can ban web­sites and social media. Cell­phone usage can be restricted. Free speech is lim­ited. More­over, those who par­tic­i­pated in the recent protests could be legally disciplined.

But most news orga­ni­za­tions used an advi­sory from the “always-​ready-​to-​help-​and-​misinform” ACLU pro­mot­ing the protests rather than dig­ging into the legal issues.

DaTech3.jpgMost jour­nal­ists cited Tin­ker v. Des Moines Inde­pen­dent Com­mu­nity School Dis­trict, a U.S. Supreme Court deci­sion from 1969 that sup­ported a lim­ited right for stu­dents to protest dur­ing the Viet­nam war. In that case, the court found that stu­dents in pub­lic schools could wear black arm bands in protest against the war.

The court observed, “It can hardly be argued that either stu­dents or teach­ers shed their con­sti­tu­tional rights to free­dom of speech or expres­sion at the school­house gate.”

But the opin­ion went much fur­ther, restrict­ing a num­ber of rights. School admin­is­tra­tors could restrict protests if the actions sig­nif­i­cantly dis­rupted or inter­fered with the nor­mal activ­i­ties dur­ing school hours.

Many peo­ple, includ­ing me, would argue that the anti-​gun protests did exactly that.

But many school admin­is­tra­tors, toe­ing the left­ist line, decided to use the protest as a “teach­able moment.” A few schools in Ari­zona, Arkansas, and else­where fol­lowed the essence of the court deci­sions, say­ing that the protests were indeed disruptive.

In a dis­sent­ing opin­ion in Tin­ker, Jus­tice Hugo Black argued that “if the time has come when pupils of state-​supported schools, kinder­gartens, gram­mar schools, or high schools, can defy and flout orders of school offi­cials to keep their minds on their own school­work, it is the begin­ning of a new rev­o­lu­tion­ary era of per­mis­sive­ness in this coun­try fos­tered by the judiciary.”

Since the Tin­ker deci­sion, the courts have been fairly con­sis­tent in restrict­ing the rights of high school stu­dents. In Bethel School Dis­trict v. Fraser, a 1986 case, the U.S. Supreme Court held that a high school student’s speech that included sex­ual ref­er­ences dur­ing a stu­dent assem­bly was not con­sti­tu­tion­ally pro­tected. In Hazel­wood v. Kuhlmeier, the court ruled that schools have the right to reg­u­late the con­tent of school-​sponsored news­pa­pers. In Morse v. Fred­er­ick, the court held in 2007 that schools may restrict stu­dent speech at a school-​sponsored event. Sev­eral cases have restricted the dis­play of the Con­fed­er­ate flag in schools.

Some­how the ACLU memo didn’t men­tion these cases, and jour­nal­ists, as usual, chose to fol­low the left­ist line rather than dig deeper into the facts of the issue.

A final note: An Iowa jour­nal­ist wrote an excel­lent col­umn about rural Amer­ica, where peo­ple blame the shooter rather than the weapon. It made sense to me.

See https://​www​.nytimes​.com/​2018​/​03​/​16​/​o​p​i​n​i​o​n​/​g​u​n​s​-​g​u​n​-​c​o​n​t​r​o​l​-​a​m​e​r​i​c​a​.html

As the media applauded the student protests against guns, most reporters failed to understand the nature of constitutional law and the First Amendment.

Simply put, students who are not 18 years old don’t, for the most part, have many rights under the Constitution during the school day. Schools can ban websites and social media. Cellphone usage can be restricted. Free speech is limited. Moreover, those who participated in the recent protests could be legally disciplined.

But most news organizations used an advisory from the “always-ready-to-help-and-misinform” ACLU promoting the protests rather than digging into the legal issues.

DaTech3.jpgMost journalists cited Tinker v. Des Moines Independent Community School District, a U.S. Supreme Court decision from 1969 that supported a limited right for students to protest during the Vietnam war. In that case, the court found that students in public schools could wear black arm bands in protest against the war.

The court observed, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But the opinion went much further, restricting a number of rights. School administrators could restrict protests if the actions significantly disrupted or interfered with the normal activities during school hours.

Many people, including me, would argue that the anti-gun protests did exactly that.

But many school administrators, toeing the leftist line, decided to use the protest as a “teachable moment.” A few schools in Arizona, Arkansas, and elsewhere followed the essence of the court decisions, saying that the protests were indeed disruptive.

In a dissenting opinion in Tinker, Justice Hugo Black argued that “if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.”

 Since the Tinker decision, the courts have been fairly consistent in restricting the rights of high school students. In Bethel School District v. Fraser,  a 1986 case, the U.S. Supreme Court held that a high school student’s speech that included sexual references during a student assembly was not constitutionally protected. In Hazelwood v. Kuhlmeier, the court ruled that schools have the right to regulate the content of school-sponsored newspapers. In Morse v. Frederick, the court held in 2007 that schools may restrict student speech at a school-sponsored event. Several cases have restricted the display of the Confederate flag in schools.

Somehow the ACLU memo didn’t mention these cases, and journalists, as usual, chose to follow the leftist line rather than dig deeper into the facts of the issue.

A final note: An Iowa journalist wrote an excellent column about rural America, where people blame the shooter rather than the weapon. It made sense to me.

See https://www.nytimes.com/2018/03/16/opinion/guns-gun-control-america.html