Editor’s note: This commentary is by Peter Berger, an English teacher at Weathersfield School, who writes “Poor Elijah’s Almanack.” The column appears in several publications, including the Times Argus, the Rutland Herald and the Stowe Reporter.
Back when James Joyce and Ernest Hemingway hung out in bars, the bespectacled Joyce would pick a fight with another patron. Then just before things came to blows, he’d duck behind his burlier friend and direct him to “deal with it, Hemingway.”Over recent decades, public schools have been drafted to play Hemingway while the rest of us have taken turns impersonating Joyce.
This brings us in a roundabout way to the First Amendment.
The Founding Fathers were adamant that free speech and a free press are essential for the health and survival of a free republic. I agree with Benjamin Franklin that there is “no such thing as public liberty without freedom of speech.” In a day where we see the press corralled, berated and threatened at campaign rallies, and where the president echoes Stalin and Mao to declare our free press the “enemies of the people,” I’m especially leery about any abridgement of anyone’s free speech rights.
However, I tell my students that the First Amendment doesn’t mean you can say whatever you want whenever you want to. The government limits citizens’ speech all the time without violating the Constitution – in a judge’s courtroom, in my classroom during instruction and tests, and, borrowing from Justice Holmes, by barring us from knowingly and “falsely shouting ‘Fire’ in a crowded theater.”
The nexus of free speech and classrooms is important to me as a teacher not only because of my ardor for the First Amendment, but also because it illustrates society’s failure to grasp classroom reality – which brings us back to Joyce and Hemingway.
Courts have clarified students’ free speech rights in several signal decisions. In a Vietnam-era student protest case, the Supreme Court ruled that students and teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that schools can suppress student political speech only if that speech would “materially and substantially interfere” with the school’s mission and operation.
One concurring opinion stipulated that students’ free speech rights are not the same as or “co-extensive with those of adults.” A dissenting justice expressed what he considered the court’s consensus that school officials should be granted “the widest authority in maintaining discipline and good order” unless their limitations on students’ speech are motivated by their own political opinions. Going further in his dissent, another justice warned that the court’s decision effectively “compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.”
Two decades later the court clarified its position in a case involving a student who used sexually suggestive language and “lewd” innuendo in a campaign speech at a school assembly. This time the court’s majority held that while the First Amendment protects some “offensive” forms of speech for adults, “the same latitude of expression is not permitted to children in a public school.” Officials’ concern for the “sensibilities of other students” constitutes a legitimate reason to limit student speech.
These precedent-setting rulings bear on a more recent case that affords a look at decisions that officials including judges make and how they don’t reflect but do affect real students and teachers like me. The case this time featured breast cancer awareness bracelets bearing the inscription “I (heart) boobies.” Administrators banned the bracelets as “vulgar and inappropriate for middle school.” When two female students defied the ban and were suspended, they sued the district for violating their First Amendment right to free speech.
The school’s attorney argued that the “I love boobies” message “pushes the limits of propriety in public schools,” undercuts efforts to “maintain reasonable decorum,” and disrupts the school’s proper “focus on education.” He asserted that administrators should be able to prohibit the use of “lewd language to convey political or social messages” when “the same message can be conveyed in a more decorous manner” without lewd language.
The ACLU lawyer representing the students countered that “I love boobies” did not “reasonably” pose a “substantial material disruption” to learning and middle school student behavior.
A series of federal courts eventually concluded that the “boobies” bracelets were not “plainly lewd” and were protected as a commentary on a social issue, specifically breast cancer. The Supreme Court declined to hear the case on appeal, which left standing the lower courts’ decision and overturned the district’s ban.
It’s worth noting that at the same time this federal court in Pennsylvania was outlawing the ban, a federal court in Indiana was ruling that a school in its jurisdiction could impose a ban on the same “boobies” bracelets.
Let’s set aside the vagaries of our federal court structure, and the image of 13 robed federal jurists discussing “boobies” for a full hour. Let’s also agree that fighting breast cancer is worthwhile.
The principal of the school, herself a breast cancer survivor, banned the bracelets as “imposing a substantial risk of disruption and distraction.” In contrast, while conceding that “there are always immature boys,” one of the student plaintiffs opined, “But I don’t think it’s that disruptive.”
Who should get to decide how much disruption is too much – a seventh-grader or the school principal?
Before you answer, consider the T-shirt promoting testicular cancer awareness, also in current circulation, that bears the message, “I love balls.” How about the bisexual female high school student who came to school wearing a shirt declaring “I Enjoy Vagina”? Do we allow this as protected speech regarding her sexual preference? Do we allow a male student to wear the same shirt? How about the male football team?
The courts have ruled that administrators’ decisions must turn on whether they can “reasonably forecast” that the speech in question will disrupt education, violate other students’ rights, or obstruct “appropriate discipline.” No one can better judge what could likely disrupt a particular school than the principal and teachers who work there, the people entrusted with educating our children in the first place.
If you can’t trust me to decide about bracelets and T-shirts, how can you possibly trust me to disseminate ideas?
As for our distinguished jurists, anybody who can’t predict that many adolescents will have a disruptive, harassing field day with slogans that include reproductive organs and allied body parts shouldn’t be in the position of deciding what’s reasonable.
Once again your public schools have been rendered impotent.
Smirking vulgarity has triumphed in the name of free speech.
The courts and the general public will cluck their tongues at the further decline of public education.
“Deal with it, Hemingway,” they’ll demand as they duck for cover.
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