Supreme Court

Back in May of 2010 — May 5th, to be exact — several (Caucasian) students at California’s Live Oak High School wearing shirts with the American flag on them were asked to leave school because they refused to turn their shirts inside-out.

What, what? Students had to turn their shirts around … because American flags were on them?

Yep — it was Cinco de Mayo, after all.

School officials at the heavily Hispanic school were concerned that Latino students would be offended by seeing Old Glory on the Mexican holiday (a holiday not even widely celebrated in Mexico), and that some fights could result.  Indeed, some 200 Mexican/Mexican-American students protested in a march that day upon hearing about their devious Old Glory-clad peers.

The gringos went to court … and lost. The Ninth Circuit recently declined to hear their appeal, citing “prior events” that took place at the school, including an “altercation” (presumably between a white and Hispanic student), as a rationale. (There had been some 30 fights between white and Latino students in the past six years at the school.) The appellate panel said “school officials ‘acted properly to prevent a substantial and material disruption of school activities.’”

(Check out The College Fix coverage of this case here and here.)

The US Supreme Court indeed has granted a lot of leeway over the last few decades to public school officials when it comes to regulating student speech. One notable ruling from seven years ago is the “Bong Hits 4 Jesus” case (Morse v. Frederick) in which a (public school) student unfurled a banner with “BONG HiTS 4 JESUS” on it across the street from his school during the Olympic torch relay.

SCOTUS Chief Justice John Roberts wrote for the majority in the case (emphasis added):

Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers . . . poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

Perhaps anticipating the ensuing controversy, those in the majority with Roberts emphasized that this ruling “applied only to advocacy of illegal drug use.” Justice Samuel Alito, joined by Justice Anthony Kennedy, noted the “Bong Hits” case “‘provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue’ … including student opposition to the drug laws themselves” (emphasis added).

Confused yet?

You probably should be. The courts have pretty much been all over the map when it comes to lower ed. student speech rights.

The standard for such rights had been the Tinker case from 1969. The SCOTUS ruled then that students were indeed permitted to wear black armbands at school to protest the Vietnam War. The famous quote to emerge from the case was “Students don’t shed their constitutional rights at the school house gates.”

But since then, Tinker has arguably been eroded, despite Justice Alito’s reassurance in the Morse case. In addition to Morse, 1988’s Hazelwood v. Kuhlmeier allowed school administrators to censor student newspapers, even despite “protective” measures taken by student writers and editors.

Which brings us back to the situation at Live Oak High School. Does Morse apply here? Why or why not? Have we actually reached the point in this country where showing the American flag can legitimately be banned … despite it being displayed in front of our schools … and in each classroom within?

As an educator, I can fully appreciate the need for an “orderly educational environment,” and back in 2007 during the Morse case I was fairly sympathetic to the high court’s reasoning.

But these days, I’m not so sure.

If we’re actually at the point where a display of our own flag can be considered “offensive” — and hence banned — then where does it end? Will administrators now ban student displays of other national flags because they may offend some students, i.e. native-born Americans? And/or because such displays, like at Live Oak HS, may lead to some student scuffles?

Or, are only certain (politically correct) groups permitted to be “offended?”

More importantly, will this case now go to the US Supreme Court … and will the justices legitimize the heckler’s veto that the case enshrines?

Dave Huber is an assistant editor of  The College Fix. Follow him on Twitter @ColossusRhodey.

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In a decision that’s drawing alarm from public-disclosure and press groups, the Missouri Court of Appeals ruled that course syllabi at the University of Missouri aren’t subject to open-records laws.

The reason? Professors own the copyright.

The Student Press Law Center reports that the National Council on Teacher Quality plans to appeal to the Supreme Court:

The NCTQ filed suit against the university system in Boone County Circuit Court in October 2012 after the UM System declined to release course syllabi that “students actually receive from their professors” for a college evaluation project the group is working on with U.S. News & World Report.

“In responding to the NCTQ’s request for course syllabi, we felt it was important to respect the rights of the faculty members who created the syllabi,” John Fougere, the university system’s spokesman, said in a statement. …

Kate Walsh, president of NCTQ, an education research and advocacy group based in Washington, D.C., said they were “dismayed and surprised” by the court’s ruling. She also said that the ruling, if upheld, could suggest that any governing body can deny access to published documents by claiming its employees own the rights to the materials. [emphasis added]

The group is hopeful the Supreme Court will take the case:

The U.S. Supreme Court can hear appeals from state courts if there is an issue of federal law that is conclusive; in this case, the argument would be that the federal Copyright Act is the basis of Supreme Court jurisdiction.

In the meantime, students, if your professor is peddling a ridiculous syllabus full of bile toward anyone right of Che Guevara, just post it online.

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The Internet isn’t exactly known for reasoned, nuanced conversation. Well, maybe it is if you follow an excellent legal blog like The Volokh Conspiracy, which had a post Monday about the little-known translations of the U.S. Constitution into German and Dutch at ratification.

But if you’ve ever read the comments on a YouTube clip, or participated in a flame war in a Facebook post, surely you’ve agonized for the future of humanity.

What you may not have expected is that acting like a jackass online could be a criminal offense – and that it has bearing on hot-button campus issues like sexual harassment.

The Supreme Court is weighing whether to overturn a ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia that essentially criminalizes some out-of-context speech online, which worries the First Amendment advocates at the Student Press Law Center.

That group along with two other free-expression groups asked the high court to “set a high standard for criminally prosecuting speakers for references to violence on social media,” as SPLC said in a press release Monday.

The case revolves around a man whose Facebook posts “fantasized in graphic terms about killing his estranged wife and law-enforcement agents,” SPLC said.

Why is that relevant to college students? The groups’ friend-of-the-court brief notes:

Students and other young adults are prolific users of social media. As such, they are particularly affected by the court of appeals’ application of a negligence standard [i.e., you are responsible for the effect of your words on your listeners] to a statute criminalizing, inter alia, threats communicated through social networks.

The nature of social media communication and the rise of apps means that your intended meaning in any given post may get stretched and twisted into a different meaning for other readers, the brief says, citing the “narrative” building app Storify. This activity can happen

with or without the knowledge and consent of the original speaker. … Thus, a Twitter user’s harmless musing about a violent scene from a movie or television program could turn up, devoid of context but attributed to its original author, in a published narrative that gives the remark ominous unintended meaning.

Something similar happened to a Texas teen who, in an argument following an online gaming session with another user, made a sarcastic comment on Facebook about shooting up a school followed by “LOL” and “J/K,” the brief says. He spent months in jail after he was reported to authorities by a totally unrelated user.

The brief also notes a New Jersey professor was suspended by his college for posting a photo of his young daughter wearing a shirt with a violent Game of Thrones quote on it, on speculation that it was “threatening a school shooting”:

Such is the school’s concern that, even after the misunderstanding was revealed and the teacher reinstated with back pay, the school required him to remain off campus for more than a week and to visit a psychiatrist before returning to work.

Veteran observers of federal investigations of sexual harassment on campus may recall this similar attitude – that context is irrelevant when it comes to guilt – in the “blueprint” document that the departments of Education and Justice signed with the University of Montana last year.

The Foundation for Individual Rights in Education said then, quoting the federal agreement:

“sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” If the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

There are parallels between the government’s view of sexual harassment in the blueprint document, and the 3rd Circuit’s naive view that venting on Facebook is a genuine threat. Consider:

A school’s Title IX coordinator is required to log and keep records of complaints indefinitely (speech on social media is basically permanent, leading to future misunderstandings); “every case must be investigated,” in FIRE’s words (every off-color social-media utterance is worthy of reporting to authorities); “universities may even punish a student before he or she is found guilty of any offense” (venting online can be punished as a specific, credible threat).

Sadly, it seems more likely the Supreme Court will put strict limits on the criminalization of venting online, than that federal agencies will adopt commonsensical regulations when it comes to judging sexual offense.

Greg Piper is an assistant editor of The College Fix. (@GregPiper)

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The Supreme Court on Thursday gave Wheaton College the injunction it wanted against the Affordable Care Act’s contraceptive mandate.

But it’s not now deciding the broader question of whether Wheaton must follow the Obama administration’s so-called accommodation for religious nonprofits.

In the court’s dense legalese:

If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

The Associated Press translates that:

The court said it was not ultimately deciding the issue Thursday and noted that it is likely to take up the nonprofits’ cases at some point.

For now, though, it said in an unsigned opinion that the letter to [the Department of Health & Human Services] is sufficient and that the government can rely on the letter to ensure that women covered by Wheaton’s insurance can obtain emergency contraception at no cost.

See our previous coverage about Wheaton’s “community covenant” and the Justice Department’s claim that the Hobby Lobby decision actually goes against what religious colleges are asking for.

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The Department of Justice is trying to stop the religious-freedom logic of the Supreme Court’s decision in the Hobby Lobby contraceptive-mandate case from spreading to religious colleges and other nonprofits seeking the same exemption.

The Associated Press reports that DOJ asked the Supreme Court Wednesday to turn down Wheaton Colleges’s request to get itself out of any complicity in the provision of “objectionable contraception”:

The issue in the lawsuits filed by Wheaton and other nonprofit groups is different because the administration already has allowed them to opt out of paying for the objectionable contraception by telling the government that doing so would violate their religious beliefs.

But they must fill out Form 700 that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other provisions of the health care law.

The fight is over completing the form, which the nonprofits say violates their religious beliefs because it forces them to participate in a system to subsidize and distribute the contraception. …

“The decision in Hobby Lobby rested on the premise that these accommodations ‘achieve all of the Government’s aims’ underlying the preventive-health services coverage requirement ‘while providing greater respect for religious liberty,'” the Justice Department said, quoting from Justice Samuel Alito’s majority opinion.

Read the full article here.

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Free speech on college campuses scored an indirect victory in a Supreme Court decision this week concerning “false statements” in an Ohio congressional race.

Groups supporting student speech hailed the ruling in SBA List v. Driehaus, where the high court ruled unanimously that the Susan B. Anthony List, a pro-life group, has legal standing to sue Ohio even without being punished for its assertions in political campaigns.

That’s because the group has engaged in “arguably” protected speech and faces a “credible threat of enforcement” in the future under Ohio law, according to Justice Clarence Thomas’s opinion for the court.

The Foundation for Individual Rights in Education (FIRE), which filed a brief supporting the pro-life group’s position, compared the enforcement threat to a campus group that risks punishment for advocating outside of “free speech zones” on campus. In a blog post hailing the court ruling, FIRE argued that such speech rules lead to students self-censoring instead of possibly facing punishment.

FIRE is all too familiar with such cases. At the University of Hawaii-Hilo, members of Young Americans for Liberty (YAL) were prohibited from handing out copies of the Constitution outside of the designated free speech zones.

At the University of Cincinnati, which falls under the Ohio false-statement law, YAL was ordered to stay in a small free speech zone on campus, limiting the group’s ability to collect signatures for a “right to work” law.

The Student Press Law Center also applauded the ruling, saying it will embolden students who face threats of expulsion or lawsuits from their university.

The group argued in a brief that a ruling in favor of SBA List would likely change the current system, where students often avoid lawsuits against unconstitutional laws because possible expulsion from school will “deprive them of once-in-a-lifetime experiences.”

One immediate impact of the ruling, according to the Student Press Law Center, is in allowing students to create parody accounts of student officials. A North Carolina law that ostensibly targets bullying, signed by then-Gov. Bev Perdue (D) in 2012, also makes it illegal for students to “build a fake profile or Web site” if it’s done with “the intent to intimidate or torment a school employee.”

After the Supreme Court ruling, students will now have standing to file suit against rules limiting advocacy to free speech zones before violating public university rules mandating certain activities only occur within those zones.

As noted by the First Amendment Center, a project of Freedom Forum, Robert Van Tuinen of Modesto Junior College wanted to hand out copies of the Constitution on campus last fall but was told he would have to reserve time in the free speech zone, and time would not be immediately available. Under the Supreme Court ruling, Van Tuinen could challenge that rule without first violating it.

College Fix contributor Matt Lamb is a student at Loyola University-Chicago.

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