Archive for the ‘First Amendment’ Category

Many school kids are wearing “I Love Boobies” bracelets in memory of a relative who has died of cancer, or in support of a cancer survivor in their family. Why isn’t more being done to support these students?

Schools are continuing to try to ban the controversial “I Love Boobies” bracelets, even after a federal court in Pennsylvania ruled that such bracelets were protected by the first amendment.  How can they do that?  Well, what we find in the Pennsylvania court’s 40-page opinion is that the judge ruled that the particular school district in question failed to prove a “well-founded expectation of material and substantial disruption from wearing these bracelets….”  So other school districts are apparently spending their limited financial resources on lawyers they hope will make a better case for them.  Case in point, the Watertown School District of Massachusetts, which banned the bracelets recently and will soon face a court challenge.  Since I first blogged about the “Boobies” bracelets last October, I have received a handful of emails every month from students looking to fight their schools.  My advice is as follows.

• Step one: Read your student handbook for appeal procedures on any disciplinary action you receive (e.g. detention or suspension).
• Step two: Write the appeal letter and deliver it.  (Most appeal procedures first require a hearing in front of the principal, and then the school board.)
• Step three: Contact the media.  Look up newspapers and local T.V. stations online, and email them.  Many schools will back down from the embarrassment of such a ban.
• Step four: If that doesn’t work, call your local chapter of the ACLU.

As a lawyer who has actually represented school districts before, my advice to schools is:  “Give it up!”   You school districts won’t win, even if you take the case to the Supreme Court! Here is why the schools won’t win on this: the bracelets will never be shown to be sufficiently “disruptive” to justify a ban, particularly now that the bracelets are so commonplace.  While at first the bracelets may have led to snickers, now they are so common as to be boring.  And school districts are forgetting the fundamental rule of American popular culture.   First something is trendy, then it goes mainstream, then it becomes universally hated.  By the time your lawyers finish proof-reading their legal briefs, the “I Love Boobies!” bracelets will be cast aside for another trend.

For prior blog posts on other First Amendment issues in school, check out here, here, and here.

Last October we discussed the story of Riverside High School Students Suspended for Wearing “I Love Boobies!” Bracelets”.  At Riverside High School in Spokane, Dakota Jewell and  Zack Jordan were suspended from High School for two days for refusing to remove their bracelets that read “I Love Boobies!”.   In that case, the matter was resolved by a compromise whereby the kids agreed to wear their bracelets inside out.  Well, this week, a federal judge in Pennsylvania ruled that students do have a constitutional right to wear the bracelets in a classroom.  See the court decision.  Apparently the case unfolded when a student wore her bracelet to school in defiance of a ban.  During lunch, a cafeteria monitor noticed her bracelets and summoned a security guard.  The student agreed to take it off, but the next day, with her mom’s encouragement, she again defied the ban.  She was suspended, and she sought a restraining order prohibiting the school from enforcing the ban on the bracelets.  Legal precedent allows a school to ban or prohibit “lewd” speech, but the court found that the “I Love Boobies!” bracelets were not lewd in the context in which they were worn.

The Westboro Baptist Church protested outside nearby schools today.  See article.  In response, Ferris High School closed early. Was this the right thing to do?  Shouldn’t the police prohibit any protest that would be so close as to disrupt a public secondary school?

Here is the background: If you don’t already know, the Westboro Baptist Church is a small group out of Topeka Kansas that thinks homosexuals are destroying our country, and feels that God is punishing the U.S. for its tolerance of homosexuals by killing American soldiers overseas.  The church has outraged many Americans by protesting nearby military funeral with signs that read “God hates Fags”, “Thank God for IEDs”, “Thank God for dead Soldiers”, “Semper Fag” etc.  In response, there have been large counter-protests staged.  A group call the Patriot Guard Riders follow the Westboro protests at funerals and try to drown out the protesters with their loud motorcycles.  The Westboro Baptist Church has been sued for intentional infliction of emotional distress by families of deceased veterans.  Albert Snyder, the father of a young man killed in Iraq in 2006, sued and won $500,000.  However, the appellate court overturned the jury award on appeal, and the case is now pending before the U.S. Supreme Court.  The oral arguments have been held, and it looks like the court is poised to rule that the particular protest that Mr. Snyder sued over was protected by the First Amendment.  Part of the problem with the  case is that the Westboro protest was 1000 feet away from the funeral, and the funeral wasn’t actually disrupted.  More on that case here.  Meanwhile, today in Spokane the church wasn’t protesting at any funerals, rather the church singled out locals schools.  The protestors visited Gonzaga, Whitworth, EWU, and Ferris High School.  Check out this YouTube video of the Spokane protests.

According to the Spokesman-Review article, “Ferris High School students were released from school before the Westboro members arrived to avoid congestion from all of the protesters, said Terren Roloff, Spokane Public Schools spokeswoman. Administrators also did not want students to have to be exposed to the church’s hateful and offensive messages as they left, she said.”
In my opinion, the police should have set up a perimeter around Ferris High School in which protestors were not allowed. Under court precedent, the government is permitted to take measures to prevent disruption of classes for children in public schools. In this state, school attendance is compulsory. See RCW 28A.225.010. Additionally, under Article 9, Section 1 of our state constitution, public education is a right for children.  So while, the society may have to put up with raucous protests near universities, such is not the case of our secondary schools.  Under the “captive audience doctrine” the government can protect people from having to listen to disturbing messages while they are “stuck” in school, on the job, at job centers, and occasionally even at their home.  Different rules apply there than in a town square, a park, or random street corner.  “Captive” listeners have a recognizable privacy interest in avoiding unwanted communication where “the degree of captivity makes in impractical for the unwilling viewer or auditor to avoid exposure.”  Hill v. Colorado, 530 U.S. 703, 718 (2000).  The Ninth Circuit Court of Appeals has ruled that it is appropriate to consider that a public school consists of an audience that is “essentially captive and composed of impressionable adolescents…” Nurre v. Whitehead, 580 F.3d 1087, 1094 (2009).

For more news on the protest at Ferris High School see here. What do you think? The Westboro Baptist Church does an average of 6 protests per day. Should we really have to cancel school days just for them?

At Riverside High School in Spokane County, and elsewhere around the nation, students have clashed with school officials over their right to wear bracelets that support breast cancer awareness. The bracelets read “I Love Boobies!” and are sold by the Keep A Breast Foundation. The Keep A Breast Foundation is a non-profit corporation committed to reducing breast cancer, and the group focuses on educating younger people. The Spokesman-Review today covered the story of how Dakota Jewell and  Zack Jordan were suspended from Riverside High School for two days  on Thursday for allegedly refusing to remove their bracelet that read “I Love Boobies!”  When word got out that the two boys were suspended, many of their classmates joined them, wearing similar bracelets, and creating signs with the same slogan.  More students were suspended Friday.  The Spokesman-Review reported that Dakota Jewell donned the bracelet because he has had family members die of the disease and he wanted to promote awareness.   Several students joined their friends in protest and were also suspended, and now some students are vowing to wear the bracelets this Monday as well. I have been in contact with a few of the students and have given them some pointers on how to have their rights respected, and how to avoid suspension.

Similar disputes are going on nationwide.  Other schools nationwide have tried to prohibit these bracelets in school.   I have not heard of any such cases going to court.  It is certainly a matter of freedom of speech, but maybe the ACLU isn’t volunteering to take up causes like this because the speech really doesn’t involve overtly political or religious speech.  But that’s just a guess.  Last week, Professor Howard Wasserman of Florida International University School of Law offered his opinion on the subject of “I Love Boobies” bracelets in school.  Wasserman accused the cancer foundation of going for the “lowest common denominator”.  He opined that the students wouldn’t “have a prayer” of prevailing on first amendment grounds.   However, professor Kathleen Bergin of South Texas College of Law wrote last month that she thought the “I Love Boobies” bracelets might be protected by the first amendment.  She wrote: “… it’s hard to see much of a difference between arm bands worn to protest the Vietnam War, which the First Amendment protects, and a bracelet worn to raise awareness about cancer.”  (The legal precedent she refers too is Morse v. Tinker, which I blogged about last year here.)  In the Tinker decision, the U.S. Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam war and to push for a truce.  The school banned all armbands, and when the students wore them anyway, they were suspended.  In 1969, the Supreme Court struck down the school rule, explaining that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But a student’s right to freedom of speech is not unlimited, and in 1986, in Bethel School District v. Fraser, the U.S. Supreme Court upheld the punishment of a student who used vulgar and lewd language when speaking at a school assembly.   The student gave the following speech in support of a candidate for student government:

I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.  ‘Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. ‘Jeff is a man who will go to the very end — even the climax, for each and every one of you.

The bracelets the kids at Riverside wear are certainly less disruptive than giving a speech such as the above.  My opinion is that a court would strike down Riverside’s prohibition of such bracelets.  I believe a court would likely side with Dakota Jewell and Zack Jordan.  The “I Love Boobies” bracelets are not as “political” as armbands protesting a war.  However, the way breast cancer research is funded, and the way its survivors are treated is a very hot political issue in the country.  And lets face it the word “boobie” might be a little silly or immature, but it is hardly “vulgar” or “lewd”.

I have a great deal of sympathy for the students of Riverside.  They will be faced Monday with a decision of giving up their rights or attending class.  I remember when MaryBeth Tinker spoke at Gonzaga (see post), she mentioned that it was three years after her suspension before the case went to court.   It would seem to be pretty demeaning to the students to be told that they are so immature that they cannot handle seeing the word “boobie” in small print around someone’s wrist.  If it were my son or daughter, I would tell him to go to school with the bracelet on, but with a little black tape covering the “offensive” word.  Nothing protests censorship like duct tape.

For earlier posts on the subject of freedom of speech in the school setting. see here, here, and here.

What do you think?  Was the principal right to ban these bracelets?  Could these bracelets lead to sexual harassment at all?  Does it matter that these kids seem to have a well-intentioned concern for people with cancer?

Last week I blogged about a teacher in Spokane who had been put on leave for passing out lyrics to a Blue Scholars song.  See post.   Since that time, a Facebook site sprung up in his defense.  See here.  The site announced that teacher Brad Read would be back to work soon, and this is confirmed by a story posted this morning in the Spokesman-Review.  His return to work was heralded by some, but when you read the details, the way the school treated him is pretty discouraging.  In order to be rejoin his students, Brad Read had to forfeit 19 days pay, and sign a “last chance agreement”.   Such an agreement makes it very easy for the school district to get rid of him even for a minor error.  Additionally, Brad Read had to admit wrongdoing, and agree not to make any public statements in his own defense contrary to that admission.  In other words, he had to agree to a gag order. 

I wondered in my earlier blog post who it was exactly that was imposing the discipline.  That question is answered by the disciplinary letter that Shadle Park School District provided to the Spokesman-Review.  The school official is Assistant Superintendent Staci Vesneske.  You can see why Staci Vesneske would have a problem with what Brad Read did.   Look again at the lyrics of the song he distributed.  The song is very critical of the public school system, a system in which  Staci Vesneske has thrived.  When the Spokane school district was under fire for having too many high paid administrators (rather than teachers), Staci Vesneske spoke in defense of the $175,000 salaries.  See source.   Why are the administrators getting paid so much when they are doing such a bad job of keeping kids in school?

When news came out that Brad Read was placed on leave, many people wondered why a teacher would be suspended just for distributing song lyrics that contained the word “fuck”.    People didn’t understand because the same word is in books in the current curriculum such as  “A Separate Peace”.  The truth is that the disciplinary action against Brad Read has less to do with the word fuck, and more to do with the criticism of Staci Vesneske’s school system.  I have never met or spoken to Brad Read, but you have to feel a little bad for a teacher who was forced to choose between the students that he loved and his first amendment rights.

You have to wonder about those students at Shadle Park High School.

The Blue Scholars

Their popular English teacher Brad Read was placed on leave the other day for passing out the lyrics to a rap song, and the students have not come out publicly in his defense.  Apparently some parents complained about the song that contained foul language.  Here are a sample of the lyrics by Seattle hip-hop artists Blue Scholars:

With the grade point average hanging over head,
Brother sister please don’t believe the bullshit they said.
Fuck the pledge of allegiance and arrogant teachers
But peace to the people who don’t ever preach in the front of a classroom
All day long, planting seeds of revolution,
We dedicate this song.
It goes one for the student who refuses to submit
And two for the teachers who are underpaid as shit
It’s the next generation of miseducated youth
Who demonstrate the truth and manage to make it through

If you want to check out the Blue Scholars video, click here.  Looking at the lyrics you can kind of see that the problem may have less about the word “fuck” and more about the the irreverence of the song.  The latest word on the subject was that the teacher Brad Read was on leave pending an ” investigation.”  See article in the Spokesman-Review.  What is there to investigate?  He passed out some lyrics – give him an oral warning and put him back to work.  Why are the students at Shadle Park High School putting up with this baloney?  Are they content to have to deal with a substitute while the school administrators meet to make sure that the students are exposed to only the blandest, most non-controversial curriculum?  Isn’t it an insult to the students’ intelligence for the school to think that Shadle Park kids need to be sheltered from the words “fuck” and “bullshit”?  I blogged earlier this year about students of the past demonstrating with black armbands.  (See post.)  Maybe armbands aren’t the way for the students of today. But what about starting a Facebook page in the defense of this aptly-named English teacher?

I guess it is a school’s job to build character. And I suppose one virtue the school is supposed to instill is courage. It doesn’t show a lot of courage for school officials to overreact and put a teacher on leave simply because one person complains about something that might be controversial. Couldn’t this have been handled short of putting teacher Brad Read on paid leave? It does not show a lot of courage for Shadle Park to kowtow to the person or people who complained. It is a waste of the school district’s money to be paying a substitute and having a teacher sit at home. I would kind of like to know the name of this school official who freaked out about these lyrics. He or she should be named in the paper. So far all I have seen in the paper is the name of the spokesperson for Shadle Park High School.

(Note from 9/24/10: To see the outcome of this case, see the recent post here.)

The Star – Online broke a news story earlier this month about a local bar owner who announced his plan to have topless dancers at his establishment in Grand Coulee.  See story.  Ted Wolf, the owner of Wolf’s Den Tavern, apparently announced his intentions at a city council meeting.  The city’s police chief reviewed the city code, and apparently did not find any prohibition on such an activity.  The news story explains the regulations that one would face would come from the State Liquor Control Board.  Under the law, if it weren’t for the Tavern’s liquor license, the government would be limited in its ability to restrict such topless dancing.   The Washington Supreme Court has ruled that the expression of a nude dancer receives constitutional protection.  See Kitsap County v. Kev Inc. (1986).  Courts consider nude dancing “low value” speech, but nevertheless speech that is protected by the first amendment.  In Erznozick v. City of Jacksonville (1975) the U.S. Supreme Court ruled that entertainment involving nudity cannot be banned.   However, the U.S. Supreme Court also ruled that States may prohibit sexually explicit live entertainment in places where alcohol is served because states are vested with the power to regulate alcohol under the 21st Amendment.  New York State Liquor Authority v. Bellanca (1981).   In Washington, the State does allow topless dancing at bars provided that the dancers are compensated and remain on a stage 6 feet away from patrons.  See WAC 314-11-050.  These sort of performances are not typically very lucrative for the licensees, and as reported by The Star, only one such topless bar exists in Eastern Washington.    Most nude dancing occurs in establishments that only serve soft drinks.  In some of those alcohol-free establishments, it is pretty much anything goes if you believe the frequent news reports of west-side newspapers.  However, local governments are able to prevent dancer-on-patron contact with local regulations.   For example the city of Bellevue prohibits fully nude dancers from coming within 4 feet of patrons, requires stages to be well-lit, and requires that the “adult cabarets” close by 2 a.m.  The State Supreme Court found Bellevue’s ordinance to be constitutional in the case of Ino Ino, Inc. v. Bellevue (1993).  In that case, the court rejected the argument of the dancers that the lighting and proximity restrictions interfered with their freedom of expression.   In this country, dancing involving nudity is subject to what we call “time, place, and manner” restrictions.   Oftentimes, local officials attempt to restrict the dancing so much that clubs simply give up and move to other locales.  Such intent on the part of city officials is hard to prove, and State Supreme Court has explained that “a court should not strike down an otherwise constitutional statute on the assumption that the legislative body had a wrongful purpose.”  See Ino Ino, Inc. v. Bellevue.  Additionally, courts have upheld local zoning ordinances that prohibit “adult” establishments within 1000 feet of a church, park, school, or even a residence.  Such was the U.S. Supreme Court’s holding in Renton v. Playtime Theaters (1986), a case that originated in Renton, Washington.  These strict regulations were found to be justifiable due to the “secondary effects” of adult entertainment, meaning the crime and prostitution and drug use that often is associated with these clubs.  I am not sure that merely providing topless dancers would justify such stringent regulation.  Adult bookstores and “lap-dance” clubs, particularly when concentrated in certain areas, are bound to have more problems then a single tavern providing dancing only on Friday and Saturday nights.   Additionally, many local governments do not have any nudity-restrictions at all when it come to the female breast.   It will be interesting to see how this plays out.  The city of Grand Coulee is attempting to change their ordinances right now to stop Ted Wolf from allowing topless dancing at his Wolf’s Den Tavern.

What do you think?  Should Grand Coulee take active steps to try to prevent such dancing within city limits?