First Amendment and Local Schools

CLARIFICATION: The Columbine High School shooting left 15 dead: 12 students and one teacher, as well as the two students responsible for the attack. 
ERMA – In March 2018, high school students in Middle Township, Ocean City, Wildwood, and Lower Township walked out of class as part of a nationwide protest against gun violence. 
A month earlier, a 20-year-old man murdered 17 people by semiautomatic rifle fire at Stoneman Douglas High School, in Parkland, Florida. It was the deadliest school shooting in U.S. history, surpassing the 15 killed in Columbine High School, in Colorado, almost 20 years earlier. It came shortly after other mass shootings, in 2017, and launched a renewed effort to address gun violence in schools and beyond. 
Local students joined the impassioned call. In Lower Cape May Regional High School and other schools around the county, staff cooperated with the walk-out. 
“We worked with the kids to make sure it was something safe and appropriate. How do you tell kids they shouldn’t protest school shootings?” said Joseph Castellucci, superintendent, Lower Cape May Regional School District. 
The message itself is not supposed to matter, whether school staff wholeheartedly agree or viscerally disagree with what students want to say. 
Courts allowed restrictions on speech, such as limiting times, places, and methods for individuals to speak their minds. However, if the restrictions are based on the content of the speech, they are likely to face far more scrutiny, according to the Philadelphia-based Freedom Forum Institute. 
For instance, a town may limit the size of a lawn sign, restrict owners from adding lighting or adopt other limitations, but it’s not supposed to matter what that sign says, whether it is advocating a political candidate, or identifying a position of proselytizing for or against a religious belief. 
Schools have far more leeway than governments in controlling what students may say or do. A school district has broad powers over students, under the concept of in loco parentis, or “in the place of the parent.” 
Schools can search lockers, limit expression, and even decide what students may and may not wear, but it’s a balancing act, weighing the rights of the individual against the school’s interests. 
Students have issues they care about and want to be heard, Castellucci said, but that is not what schools are for. 
Supreme Court ToHave a Say 
A showdown between school discipline and the First Amendment erupted over a social media post from a ninth grader, in Pennsylvania. In 2017, the female student shared an image with about 250 friends through the social media app Snapchat of her and a friend presenting an obscene gesture, expressing displeasure that she failed to make the varsity cheerleading squad. It was accompanied by text combining an obscenity with school softball, cheer, and “everything.” 
One of the selling points for Snapchat is that content quickly disappears, so that there is no worry that the images of high school parties will be visible to the human resource officer for one’s first job interview after college a few years later. 
As reported by Adam Liptak in the New York Times Dec. 28, another student took a screenshot and showed it to her mother, who is also a coach. 
The posting student was suspended from cheerleading for a year, reportedly to maintain a team-like environment. The student sued, and the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled that the First Amendment to the Constitution prevented schools from disciplining students for speech outside of school grounds. In court papers, she is identified only as “B.L.” 
On Friday January 8, the justices of the Supreme Court agreed to hear the case. In a brief filed with the Supreme Court, lawyers for the district stated commentators called the appeals court decision a bombshell, and the student’s attorneys called it a landmark, but said that for thousands of school districts and 1.7 million teachers, the decision is a disaster. 
“Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools,” the brief reads. It states that the post was disruptive to the school and the extracurricular activities and argues that the matter is especially important during Covid, when much of school life takes place in remote and virtual spaces. 
“Nor was B.L.’s speech so innocuous or fleeting,” it reads, arguing that cheerleaders rely on each other not only for emotional and moral support, but also for physical safety.
The student and her family are being represented by lawyers from the American Civil Liberties Union (ACLU), who argue the image did not identify her school or the coaches and did not cause a disruption. 
“This case stems from a momentary expression of frustration, voiced by a disappointed student, B.L., on a weekend, far from school, on Snapchat, a medium designed for temporary, self-deleting messages,” reads the brief.
Wide-ranging Issue
Castellucci has been following the Pennsylvania case. He said if it were just any student expressing frustration over a blown history final or a big homework load, it likely would not have made much sense to discipline them, but a cheerleader is, by definition, supposed to be supporting the school. 
“That behavior was not emblematic of what you would expect from a cheerleader,” he said. He tried to get the message across to students: their behavior on social media, in class, or their daily lives, reflects on the school. 
For Castellucci and other local school officials, a threshold question is whether the student’s expression threatens to disrupt school, which was part of the consideration in the Pennsylvania case. 
Students express themselves all the time, he said, not only through prolific social media posts but with T-shirts, buttons, and myriad other outlets. 
Students support political candidates and positions, but also show their favorite bands or performers, support sports teams or show where they’ve been or what they’ve done, as part of the process of defining who they are and who they hope to be. 
In most cases, the district does not get involved, Castellucci said. 
“I may not like the Dallas Cowboys, but I’ll support your right to wear that shirt.It may be a little tougher when they’re playing the Eagles,” he said. 
More significant differences also come up. 
“If a student said, ‘Protect the Second Amendment’ with a button on their shirt, we wouldn’t interfere there,” he said. 
Multiple Cases in State
That was the situation at Montclair State University, in 2019, when three students held a peaceful demonstration in favor of gun ownership rights. A complaint filed by the group Young Americans for Liberty states the students were told they needed to request permission for the demonstration two weeks in advance. 
The suit, filed in 2020, alleges this amounts to an unconstitutional prior restraint. In 2016, the National Rifle Association’s (NRA) Institute for Legislative Action highlighted a New Jersey case in which a high school student faced discipline in connection to a video created for an assignment that advocated against gun control. 
In Lacey Township, in 2019, the ACLU defended two students who posted images of guns to Snapchat. The guns were legally owned and were photographed on a table outside of school. A parent reported to the school that their child felt nervous about attending class after seeing the image. The students were suspended. 
“Only in rare circumstances can school districts discipline students for free speech outside of school during their personal time, and, under the Constitution, school districts can only punish students when their speech would cause a substantial material disruption to the school environment,” reads a post on the incident on the ACLU New Jersey webpage. 
New World, Old Questions 
Students have more ways to express themselves than ever, with new apps and platforms popping up all the time. The question of students’ rights to free expression spans multiple issues, taking in everything from gender identity to religious beliefs, mundane preferences to existential questions, student newspapers to bullying. 
According to a primer on public schools and the First Amendment prepared on behalf of the New Jersey Principals and Supervisors Association, schools have wide powers to prevent obscenity and expressions of bigotry. 
Public schools may set a dress code but cannot mandate the length of a student’s hair. Courts have found that a school district cannot force a student to recite the Pledge of Allegiance or to stand while other students do so. There is no right for students to promote drug use, as a student learned, in 2004, after displaying a 14-foot banner emblazed with “Bong hits 4 Jesus.” 
There are zero-tolerance policies for bullying. That includes bullying on social media and through other electronic means. 
“Cyberbullying is handled exactly as it is if it happened within the school day. We protect all students, regardless of where they are physically located and indiscriminate of day and time,” said Upper Township Superintendent of Schools Vincent Palmieri. “At the end of the day, we will always err on the side of the students and do what we feel is best to protect them from harassment, intimidation and bullying.”
Students are not allowed to post to social media while in school, Palmieri said. Comments made outside of school are not an issue unless they make their way inside the school and cause a disruption, which, he said, is usually not the case. 
Today, however, a significant portion of a student’s class time is remote, attending school through Zoom or other systems, eroding the lines between in school and out. 
Roots in the Vietnam Protests 
“We don’t follow students on social media,” Castellucci said. If there is an issue, chances are it will find its way to his desk without him going to look for it. If the matter includes a threat of bullying, the school is obliged to act. 
“Kids love to use social media to harass and bully each other,” he said, later noting that many adults take the same approach. 
In deciding whether to intervene, he said, there are questions to ask about whether the student crossed the line. Is it threatening or harassing to anyone in the school? Is it creating an undue disturbance in the school? 
“If it does, then you may have to intervene,” he said. 
The standard was part of a landmark decision, in 1969, from a case stemming from a student protest of the war in Vietnam. Students wore black armbands to class. They were told to remove them or be suspended. 
A few, including members of the Tinker family, refused. 
The Supreme Court ruled the school was out of order because the armbands were a form of protected speech, and there was no evidence that they disrupted the school setting. 
At Lower Cape May Regional, students sometimes sought to publicly complain about school policy or take a stand in other matters. According to Castellucci, he will often meet with the student leaders and try to find a way for them to express themselves without interrupting learning. That’s what happened with the walk-out against gun violence, he said. 
There are also legal requirements if a student indicates they may potentially harm themselves or others. At times, even this has led to issues. 
In a case cited in the NJPSA Primer, kindergarteners were warned of discipline after a student told other children he intended to shoot a teacher, and another said he would put a gun in a classmate’s mouth and kill him. 
Five days later, another student was suspended after playing cops and robbers on the playground, after saying in the game, “I’m going to shoot you.” 
The father sued, alleging the child was denied his constitutional right to free speech. 
Issues large and small  
School administrators often approve graduation speeches before the day, to avoid any last-day-of-school dramatics. At times, that extends to redlining any criticism of the district, as a quick internet search will confirm.  
In multiple instances, students went off-script, at times drawing discipline or making headlines. In 2009, an Atlantic County high school required student speakers to sign contracts promising not to stray from their pre-approved texts. This after the previous year’s salutatorian’s microphone was cut and she was escorted from the ceremony after criticizing the school administration.  
Some may seem more trivial, such as a 2009 incident at a Lower Cape May Regional High School talent night meant suspension from a sports team and other discipline when a student band switched from a Red Hot Chili Peppers song to Pink Floyd, singing that they didn’t need no education and “Hey, teachers, leave those kids alone” before staff pulled the plug.  
For one Ocean City student, receiving a message he thought was obviously a joke resulted in suspension. In a conversation that took place on a social-media platform outside of school about getting out of tests , the student’s friend made a joke about blowing up the school.  
“I think it was fairly benign,” he said.  
School staff were not amused.  
Now closing on 30, the student said he better understands the reaction. The incident took place not long after Columbine, and the memory of Sept. 11 remained an open wound.  
But they were 12 at the time, he said, and had not been in any trouble before.  
The former student acknowledged that there are legal requirements for school districts to report any threat of violence, but he said the way it was handled seemed more likely to cement any distrust of authority rather than ease it.  
He said he had no idea why when he was brought into the principal’s office where there were two Ocean City Police officers and school staff. At that point, he said, his parents had not been notified.   
“Basically, they said ‘you’re in trouble and you’re going to find out why,” he said. “I think they set it up so I would piss my pants. I think it was a scare tactic; they were trying to intimidate me.”
To contact Bill Barlow, email bbarlow@cmcherald.com.