ACLU Warns Against Sixth Circuit’s Dangerous Grant of Power to Censor to High School Administrators

January 5, 2011

In an op-ed published last week in the Knoxville News Sentinel, Hedy Weinberg of the ACLU of Tennessee and Catherine Crump of the national ACLU warn of the dangers of a recent Sixth Circuit Court of Appeals ruling regarding high school speech. The case, Defoe v. Spiva, concerns the suspension of a high school student who wore Confederate flag paraphernalia to school. In finding that the suspension did not violate the student’s First Amendment rights, the Sixth Circuit ruled that "school administrators can limit speech in a reasonable fashion to further important policies at the heart of public education."

As Weinberg and Crump point out, this dangerously broad grant of the power to censor to high school administrators invites obvious abuse:

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.

Weinberg and Crump also note that this disturbing ruling confirms the worries that FIRE and other free speech watchdogs expressed following the Supreme Court’s infamous 2007 ruling in Morse v. Frederick, in which the Court found that the suspension of a high school student who raised a banner reading "BONG HiTS 4 JESUS" at an off-campus event did not violate the First Amendment. As Greg wrote at the time, the Court’s leaky reasoning in Morse "opened the door to further viewpoint-based exceptions to free speech." Now we’ve seen that fear realized.

The student in Defoe has submitted a brief to the Sixth Circuit, requesting that the case be reheard en banc (i.e., by the full Sixth Circuit, not just a three judge panel). Like the ACLU, which submitted an amicus curiae brief in support of the petition for rehearing, we hope that the request is granted and this egregious threat to high school (and, by extension, collegiate) free speech is reversed.