Inclusivity and Civility

• In Event: Tinkering With Student Speech: Emerging Legal Debates in P-20 Education

Abstract

Issue #2:

Objectives
The panelists examine P20 student speech rights when issues of inclusivity and civility arise. This presentation is intended to generate discussion about how schools/colleges and courts resolve competing rights of students.

Perspective
This work builds on previous socio-legal studies, especially Wong and Nicotera (2004) and Yudof (1978), which explored judicial interpretations regarding educational inclusion.

Methods/Modes of Inquiry
Student free speech cases across the P20 spectrum have challenged the boundaries of student rights and administrative authority. Recently, these cases have emerged in the form of competing interests (e.g., race, sex, and religion). The panelists analyze cases using legal approaches of constitutional analysis and precedence, and they incorporate a social science approach of a collective case study (Stake, 2010).

Data Sources
This presentation draws on federal and state court opinions. Specifically, the panelists investigate how courts have addressed contests involving student expressions that lead to discipline based on justifications of educational inclusivity or civility.

Selected Results/Substantiated Conclusions
The P20 cases on student free speech leading to discipline on the basis of educational inclusivity or civility presents several key findings.

■ Courts tend to respond to racial conflicts by supporting school administrators when recent events are active memories of the educational community. For instance, when a middle school student wore various confederate flag t-shirts to school containing different political messages, school officials asked her to remove these shirts on several occasions and eventually disciplined her for noncompliance. Asserting the First Amendment, the student argued that the t-shirts expressed her heritage and religious faith. Relying on Tinker (1969), the Fourth Circuit reasoned that the speech (i.e., t-shirt) threatened to disrupt order because of past racial tension in the district (Hardwick v. Heyward, 2013).

■ Developing Rights as Micro-aggressions: Courts have treated rights of emerging groups as micro-aggressions. Most evident are responses to LGBT attacks. Courts have been inconsistent on the treatment of micro-aggressions. Thus, legal questions remain about First Amendment protections related to political and religious speech that denigrates LGBT students.

■ Courts have deferred to education purposes of inclusion even when religious rights are raised. For instance, in Christian Legal Society (2010), the Supreme Court supported the constitutionality of an “accept-all-comers” policy, which opened group membership to all students even when opponents argued that the policy infringed on members’ rights to engage in religiously expressive conduct. Rather than religious tenet justifications, the Court ruled on institutional authority using educational values.

Scholarly Significance
This issue contributes to the scholarship and practice areas of education law by (1) filling a gap in academic fora that addresses educators’ authority in enforcing standards related to inclusiveness and civility from a P20 review and (2) reveals subtle factors that enter into the discussion of student free speech cases (e.g., established educational values and effects of recent and historical events in a district).

Authors

• Suzanne E. Eckes, Indiana University

• Jeffrey C. Sun, University of Louisville