Goons and Gifties...

We all know that Judge Posner, currently sitting on the 7th Circuit, isn't a fan of several of the libertarian concepts protected by the Bill of Rights. While the Fourth Amendment is typically the object of his scorn, over the last several years it appears his focus has changed to diminishing the speech rights of students while they are in school.

The first indication that the Seventh Circuit was interested in obliterating free speech rights in schools came from the Court's decision to apply Hazelwood School Dist. v. Kuhlmeir to undergraduate students attending Governor's State University in Hosty v. Carter. This case is particularly deleterious to First Amendment freedoms because Hazelwood has never been applied to college students. This creates a new lens in the jurisprudence of student speech and devolves basic notions of free speech established by the Supreme Court in Tinker v. Des Moines School District.

More recently, the Seventh Circuit has dealt another blow to the institution of free speech in public schools. In Brandt v. Board of Education of Chicago, the Court considers whether t-shirts worn in protest can constitute speech protected by the First Amendment. More specifically, a group of gifted students, the gifties, protested the handling of an election to choose an 8th grade class t-shirt for the academic year. The students wore the shirt designed by Brandt in protest of what the group alleged constituted a rigged election. The primary question dealt with on appeal is whether the student's rights were violated, but more subtly whether they had the right to protest in the first place. On page 9 of the opinion, the Court directly questions this issue, stating:

We have our doubts whether the constitutional privilege to engage in protest demonstrations in the name of free speech extends to eighth graders.

In reality, the Court doesn't just question the rights of students to protest, but specifically proscribes such conduct when it relates to a school's administrative policy. Posner likens the protest to a protest over the choice of ketchup in the cafeteria, and ultimately concludes that the students do not have the right to protest in this manner. The implication remains that the substance of the protest would not garner First Amendment protection even though the Court does explicitly indicate that the students were really protesting the school's refusal to provide election results and/or an explanation regarding the method of counting the votes.

Absent this debasement of existing First Amendment jurisprudence, there are at least three other problems that come to mind when reading this case. First, it creates a new standard for what may be protested by students in schools and how it may be protested. Second, it supplants the Tinker decision with the vastly abused Hazelwood decision. Finally, it abstracts concepts of discretion that would result in egregious deprivations of civil liberties if applied in other contexts.

First, in discussing why no First Amendment violation occurred in this case, Posner articulates that there were other methods the students could have employed to express their discontent with the Principal's actions. While petitioning the school board was an option, going that direction would not necessarily have resulted in the students' desired result. Moreover, in the event that the alternative options of protest failed, the decision forbids this kind of student initiative to speak out against questionable administrative decisions or practices by determining that this method of protest does not constitute speech protected by the First Amendment. The worst aspect of the decision is how the Court disregards the factual parallels to Tinker. There, the students wore arm bands to protest the Vietnam War and the Supreme Court upheld the act of protest as political speech. Protesting an election held within the school may not be as grand as protesting a war, but the concept remains, and to intone that one act of protest is less than another when both deal with "political" issues takes away from the liberty interests buttressed by the First Amendment and vitiates the freedoms it stands for.

Second, the decision makes little, if any, substantive mention of the Tinker decision and relies on the concept from Hazelwood that school administrators need not tolerate expression from students that does not comport with their educational mission. This change of focus is clearly erroneous in the face of the established law surrounding free speech issues in school. Tinker stands for the general concept that "students do not leave their First Amendment rights at the school house gate." Later cases, namely Frasier and Hazelwood are modifications to this rule permitting schools to regulate speech that is obscene (Frasier) or school sponsored (Hazelwood). In this case, clearly the shirts were not offensive, nor were they school sponsored. This case falls squarely within the ambit of Tinker's control. As such, the Court's decision attempts to rely on the possibility of a disturbance to the school, the only valid reason to limit student speech per Tinker, when no disruption occurred. Moreover, the actions of the school board's emergency response team indicated that there wasn't even a threat of disruption from the "protest." Instead, the Court hangs its hat on the concept that the Principal was acting without the benefit of knowing what would happen, and should be given the discretion to make decisions regarding student speech to protect the order of the school.

This third point, which the Court relies on to crow-bar a disturbance into facts presenting only the antithesis, raises a far more damaging concept. Giving an administrator, in this case a school leader, the discretion to act in order to keep peace would fundamentally alter the concept of libertarianism enshrined in the Constitution. The idea that any leader could act preemptively to subvert a danger is not only representative of our own political climate, but demonstrates why the liberty to act is a paramount maxim of American democracy. Imagine if the President were given this kind of discretion? Every act violative of the Constitution could be easily shrugged off because the President feared danger to the Union, and no harm results from the President making a mistake that infringes rights of the people when he does it to preserve order or peace. The absurdity of the idea is enough to make one's stomach churn. In this kind of situation, where we are dealing with the Principal of a school charged with keeping order and maintaining a pedagogical environment, this kind of discretion can be equally as damaging. This is not to say that the a Principal should act to prevent serious disruptions like those of April 20, 1999, but at the same time, it should not go so far as to pervert or retard the rights retained by students when they pass onto the school house lawn or through the school house gate. If education is a pillar of Democracy, then leaders of schools and school environments should subscribe to the same standards required of leaders in a democratic society. Otherwise, we teach students that society expects docile, apathetic, and conformist behavior. The reality is students should be taught to disrupt, to think independently, and to push for change. Otherwise we will be left with the stagnant state were change is a virtual impossibility and the Constitution is little more than a husk of idealism propped up as a model of society after it has long been rendered a vestigial concept of American government.

Simply put, the Seventh Circuit has missed the mark and in so doing restricted one of the aspects of educational socialization that creates free thinking Americans. No matter how petulant the facts, this decision only aids in socializing out the concepts of liberty and fair play that undergird the Bill of Rights.