The First The First Amendment Amendment in Schoolsin Schools

withwithCharles HaynesCharles Haynes

and and Oliver ThomasOliver Thomas

The First AmendmentThe First Amendment““Congress shall make no law Congress shall make no law respecting an establishment respecting an establishment of religion, or prohibiting the of religion, or prohibiting the free exercise thereof; or free exercise thereof; or abridging the freedom of abridging the freedom of speech, or of the press; or speech, or of the press; or the right of the people the right of the people peaceably to assemble, and peaceably to assemble, and to petition the government to petition the government for a redress of grievances.”for a redress of grievances.”First Amendment First Amendment U.S. ConstitutionU.S. Constitution

““Jefferson is one of the Jefferson is one of the finest philosophers finest philosophers alive. I don’t alive. I don’t understand why he understand why he says what he says says what he says about black folk. Here about black folk. Here is the argument. I is the argument. I need to out-Jefferson need to out-Jefferson Jefferson on the racial Jefferson on the racial question.”question.”

David WalkerDavid Walker

RIGHTSRIGHTS – Inalienable – Inalienable RESPONSIBILITIESRESPONSIBILITIES – Mutual – MutualRESPECTRESPECT – – HowHow we debate, not we debate, not

only only whatwhat we debate, is critical we debate, is critical

The Lemon TestThe Lemon Test Does the law, or other Does the law, or other

government action, government action, have a bona fide secular have a bona fide secular or civic purpose?or civic purpose?

Does the Primary effect Does the Primary effect neither advance nor neither advance nor inhibit religion? In other inhibit religion? In other words, is it neutral?words, is it neutral?

Does the law avoid Does the law avoid excessive governmental excessive governmental entanglement with entanglement with religion?religion?

The Endorsement TestThe Endorsement TestJustice O’Connor has Justice O’Connor has suggested that a government suggested that a government action is invalid if it creates a action is invalid if it creates a perception that the perception that the government is endorsing or government is endorsing or disapproving a religion. The disapproving a religion. The fundamental concern is fundamental concern is whether the challenged whether the challenged governmental activity governmental activity conveys, in Justice O’Connor’s conveys, in Justice O’Connor’s words, “a message to non words, “a message to non adherents that they are adherents that they are outsiders, not full members of outsiders, not full members of the political community, and the political community, and an accompanying message to an accompanying message to adherents that they are adherents that they are insiders, favored members of insiders, favored members of the political community.”the political community.”

The Coercion TestThe Coercion TestIn the 1989 case County of In the 1989 case County of Allegheny v. ACLU, Justice Allegheny v. ACLU, Justice Kennedy proposed a test Kennedy proposed a test with two limiting principles: with two limiting principles: “government may not “government may not coerce anyone to support or coerce anyone to support or participate in any religion or participate in any religion or its exercise; and it may not, its exercise; and it may not, in the guise of avoiding in the guise of avoiding hostility or callous hostility or callous indifference, give direct indifference, give direct benefits to religion in such a benefits to religion in such a degree that it in fact degree that it in fact ‘establishes a [state] ‘establishes a [state] religious faith, or tends to do religious faith, or tends to do so.’ Lynch v. Donnelly.”so.’ Lynch v. Donnelly.”

NeutralityNeutrality

FairnessFairness

The Sherbert TestThe Sherbert Test Sincere religious Sincere religious

beliefbelief Substantial burdenSubstantial burden Compelling state Compelling state

interestinterest Least restrictive Least restrictive

alternativealternative

The Tinker StandardThe Tinker StandardTinker v. Des Moines Independent School Dist. Tinker v. Des Moines Independent School Dist.

(1969)(1969)

Student speech Student speech cannot be cannot be censored as long censored as long as it does not as it does not “materially “materially disrupt classwork disrupt classwork or involve or involve substantial substantial disorder or disorder or invasion of the invasion of the rights of others.”rights of others.”

The Fraser StandardThe Fraser StandardBethel School District No. 403 v. Fraser (1986)Bethel School District No. 403 v. Fraser (1986)

Because school Because school officials have an officials have an “interest in teaching “interest in teaching students the students the boundaries of socially boundaries of socially appropriate behavior,” appropriate behavior,” they can censor they can censor student speech that is student speech that is vulgar or indecent, vulgar or indecent, even if it does not even if it does not cause a “material or cause a “material or substantial substantial disruption.”disruption.”

Hazelwood StandardHazelwood StandardHazelwood School Dist. V. Kuhlmeier (1988)Hazelwood School Dist. V. Kuhlmeier (1988)

Censorship of Censorship of school-sponsored school-sponsored student expression student expression is permissible when is permissible when school officials can school officials can show that it is show that it is “reasonably related “reasonably related to legitimate to legitimate pedagogical pedagogical concerns.”concerns.”

CASE STUDY ONECASE STUDY ONEMay a school theatre department May a school theatre department stage a production of Jesus Christ stage a production of Jesus Christ

Superstar?Superstar?

CASE STUDY TWOCASE STUDY TWOMay a school punish a student for May a school punish a student for wearing Confederate flag attire to wearing Confederate flag attire to

class?class?

CASE STUDY THREECASE STUDY THREEMay a teacher simulate a seder feast May a teacher simulate a seder feast

as a teaching tool?as a teaching tool?

CASE STUDY FOURCASE STUDY FOURCan a school place limits on a student’s Can a school place limits on a student’s

private website?private website?

Which one is a problem Which one is a problem site?site?

Sites that are offensive, obnoxious, Sites that are offensive, obnoxious, and insultingand insulting

Sites that are offensive, obnoxious, Sites that are offensive, obnoxious, insulting, and also contain some sort insulting, and also contain some sort of veiled threat of violence or of of veiled threat of violence or of destruction of propertydestruction of property

Sites that contain a blatant threatSites that contain a blatant threat