From: Ron Jones – (
Date: Wed, Dec 29, 2010
Subject: ACLU takes up Tommy Defoe’s case

Court rulings unreasonably silence student speech

Late last week the American Civil Liberties Union and the ACLU of Tennessee asked a federal court to reconsider a recent ruling that, if left in place, will do serious harm to the free speech rights of public school students.

The decision grants schools the sweeping authority to punish students for all manner of speech that the school considers contrary to its "important policies," even where the school has no evidence that such speech creates a substantial disruption to the school day.

It all started when Tom Defoe, an Anderson County high school student, was suspended for wearing Confederate flag paraphernalia to school. The Confederate flag is an unquestionably divisive symbol. Defoe sued, arguing his punishment violated the First Amendment.

The ACLU’s brief does not take a position on whether the school acted lawfully when it punished Defoe. But what we do address is the far-reaching power the court has now allowed schools to determine what student speech can be punished – even if the school has no evidence that the speech would disrupt learning.

More than 40 years ago, the Supreme Court held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The court held that schools may prohibit speech only where it causes "substantial disruption of or material interference with school activities."

In 2007, in what the ACLU believes is a serious misstep, the Supreme Court made an exception to this rule, allowing schools to punish students for speech that advocates unlawful drug use, even without any evidence of disruption. We opposed this exception for many reasons, but a central one was fear that it would lead lower courts to create many similar exceptions for speech on a variety of topics, ultimately undercutting the protections that the Supreme Court originally put in place for student speech.

The 6th Circuit’s recent opinion proved that these fears were justified. In its opinion, the circuit held that "school administrators can limit speech in a reasonable fashion to further important policies at the heart of public education" without showing that the restrictions satisfied the "substantial disruption" standard. In other words, school administrators will now have broad discretion to punish students speaking on a variety of topics.

By the court’s reasoning, a school in a liberal community that believes that support for gay rights is an "important policy" will be able to ban anti-gay T-shirts. And a school in a conservative community that teaches abstinence-only sex education could forbid students from expressing contrary views if the school believes that abstinence is "important."

The idea that schools can ban the expression of views that run contrary to "important" educational objectives is foreign – and hostile – to the values the First Amendment is designed to protect. The "substantial disruption" test has its own problems, but at least it doesn’t allow schools to deem some of their teaching so "important" that no dissent is allowed.

Dissent – and debate through reasoned argument rather than punishment – is what the First Amendment is all about. And that, too, is an important lesson that our schools should be teaching students.

Hedy Weinberg is executive director of ACLU of Tennessee; Catherine Crump is staff attorney for National ACLU.