POLICY: STUDENT
SELF-EXPRESSION AND STUDENT DISTRIBUTION OF LITERATURE
The Constitution of the United States and the Constitution of Vermont guarantee the right of public school students to freedom of speech. The school board of the ______________School District respects the right of students to express themselves in word or symbol and to distribute and post materials in areas designated for posting as a part of that expression. The school board also recognizes that exercise of that right must be limited by the district’s responsibility to provide a safe and orderly environment in which to accomplish its central goal of educating its students.
It is the policy of the _________________School District to allow limited distribution of non-school sponsored literature on school grounds or at school events by students. Accordingly, the superintendent/principal may permit the distribution of non-school sponsored literature without discrimination as to the viewpoint of the literature in accordance with this policy.[i]
Non-school sponsored literature
means any printed, written, or electronic
materials prepared by non-school organizations, groups, or individuals for
posting or general distribution that are not prepared as a part of the
curricular or approved extracurricular programs of the district. Non-school
sponsored materials includes such things as fliers, invitations, announcements,
pamphlets, posters, photographs, pictures, films, audio recordings,
digital media recordings, and electronic messages. Literature prepared as under the supervision of instructional
personnel as part of instruction or authorized classroom activities is not
restricted by this policy.
Distribution means circulating copies of non-school sponsored literature in the following ways: handing to others on school property or during school-sponsored events; posting on school property such as walls, bulletin boards, and district web-sites; placing upon desks, tables, on or in lockers; making available in principal’s office; or engaging in any other manner of delivery of non-school sponsored literature to others while on school property or during school functions.
This policy prohibits the distribution of literature that:
When a student wishes to distribute more than __ [7]
copies of non-school sponsored literature,
the literature shall be submitted to the Superintendent/Principal for prior
review as to the following:[8]
-to confirm that the literature
includes the name of the person or organization sponsoring the distribution,
and that there is no implication that the literature is endorsed by the school
district, and
-to confirm that the
literature does not fall in one of the prohibited categories listed above.
Prior review of literature is not required when the non-school sponsored
literature is distributed by a student to other attendees at a meeting of a non-curriculum
related student group authorized to meet at school during non-instructional
time.[9]
Even when prior review is not required, students must comply with all
other provisions of this policy regarding the distribution of literature.
The Superintendent/Principal may place reasonable time,[10] place, [11] and manner[12] restrictions on the distribution of non-school sponsored literature.
Student Self-Expression
Students have a right to
express themselves on school property and at school functions,[13]
through speech or expressive actions, provided they do not materially and
substantially interfere with the orderly operation of
the school and the rights of others.[14]
This policy prohibits
student self-expression that:
The context in which students express themselves may affect the amount of latitude they are afforded in their speech. In the context of school-sponsored publications, when a reasonable listener would perceive that the speech is endorsed by the school district, more control may be exercised. School district representatives may exercise editorial control over the style and content of student speech in school-sponsored expressive activities, such as class work or a school newspaper, so long as their actions are reasonably related to legitimate pedagogical concerns.[18]
Date Warned:
Date
Adopted:
Legal Reference(s): Morse v. Frederick, 551 U.S. __, 127 S. Ct. 2618 (2007)
Good News Club v. Milford Central Schools, 533 U.S. 98 (2001)
Rosenberger v. Univ. of Virginia, 515 U.S. 819 (1995)
Lamb’s Chapel v. Center Moriches Union Free School
Dist., 508 U.S. 384 (1993)
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988)
Bethel School District No. 403 v.
Fraser, 478 U.S. 675 (1986)
Perry Educ. Ass’n v.
Perry Local Educ. Ass’n, 460 U.S. 37 (1983)
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1979)
Legal Reference(s): Wisniewski v. Board of Educ. of the Weedsport
Central Sch. Dist., No. 06-3394-cv (2d Cir. July 5, 2007)
Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006)
Peck v. Baldwinsville Central Sch. Dist., 426 F.3d 617 (2d Cir. 2005)
Walz v. Egg Harbor Twnp. Bd. of Educ., 342 F.3d
271 (3d Cir. 2003)
Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir. 2003)
Hedges v. Wauconda Community Unit Sch. Dist. No.
118, 9 F.3d 1295 (7th Cir. 1993)
Raker v. Frederick
Cty. Pub. Sch., 470 F. Supp. 2d 634 (W.D. Va. 2007)
M.A.L. v. Kinsland, No. 07-10391 (E.D. Mich. Jan. 30, 2007)
Cross Reference:
1 The basic principle in evaluating the
constitutionality of restrictions on distribution of materials in a limited
public form is that the restrictions may not be based on the viewpoint of the
materials or the one distributing them. Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508 U.S. 384 (1993); Rosenberger v. Univ. of Virginia, 515 U.S. 819 (1995); Good News Club v. Milford Central Schools,
533 U.S. 98 (2001). The situation
that tends to cause the most controversy is the distribution of religious
materials. The law is currently evolving
and changing in this area. In the cases
cited here, the Supreme Court specifically held that religious groups’ use of
school facilities must be permitted when other groups seeking to teach morals
have been permitted to use facilities; the same approach applies to
distribution of materials.
[2] Examples of literature that is not restricted
by this policy include handouts from a student as part of a presentation of a
research project or distribution of Valentines to classmates at a holiday party
in the classroom.
[3] Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (student may be disciplined for
giving speech at school assembly that contained sexual innuendos and vulgar
language).
[4] Prohibitions that maintain discipline or
prevent school disruption are always allowed.
Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th
Cir. 2003). The
standard for evaluating the reasonableness of controls on student
self-expression and student speech is whether or not the speech substantially or materially disrupts school activity, or
could reasonably be forecast to cause such disruption. Tinker
v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1979).
[5] As indicated here, a district could choose to
prohibit all distribution of literature that promotes the sale of products or
services. As with all viewpoint neutral
prohibitions, care must be taken that the prohibition is evenly enforced
without exceptions. If a district wishes
to allow distribution of materials supporting some commercial activity but not
others, it must make the distinction based on criteria that are objective and
viewpoint neutral.
[6] A common question may be whether students
selling items to raise money for parent-teacher organizations is
permitted. If such
organizations are clearly delineated (either in this policy or elsewhere) as
school-sponsored groups and their literature is delineated as school-sponsored
literature, then distribution of their fundraising materials would not be
restricted by this policy.
[7] This policy is not meant to require prior
review of personal notes to other students or limited numbers of invitations to
a birthday party or a similar gathering.
The district should set a reasonable figure for the number of copies of
literature that will trigger the need for prior review.
[8] Prior review of literature by a school
official is allowed when the policy sets forth narrow and clear standards for
that review. Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir. 2003).
[9] Prior review of literature is allowed by the
law primarily for the purpose of preventing disruption of the school’s
educational activities. Those concerns
are not present when literature is distributed after school hours, so prior
review can be viewed as an unconstitutional prior restraint in that
instance. Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir. 2003).
[10] Although the
Superintendent or Principal may establish a “time” restriction that specifies
when students may distribute literature, the restriction cannot require that
distribution take place outside the school day unless the district can
demonstrate that such a restriction is necessary to prevent disruption of
school operations. Raker v. Frederick Cty. Pub. Sch.,
470 F. Supp. 2d 634 (W.D. Va. 2007). However, restrictions may take into account
the age of the students and the nature of the classroom activities. Thus, for example, it may be permissible to
prohibit the distribution of candy and pencils with a religious message in an
elementary school classroom if it interferes with a pedagogically based
classroom activity. Walz v. Egg Harbor Twnp. Bd. of Educ., 342
F.3d 271 (3d Cir. 2003); see also
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
271 (1988) (“Educators are entitled to exercise greater control over
[school-sponsored expressive activities] to assure that participants learn
whatever lessons the activity is designed to teach, that readers or listeners
are not exposed to material that may be inappropriate for their level of
maturity, and that the views of the individual speaker are not erroneously
attributed to the school.”).
[11] Examples of a
“place” restriction might be that literature be posted only on bulletin boards
and not on windows, or that it be made available on a specified table in the
principal’s office. The district must
bear in mind that the restrictions must be aimed at preventing disruption to
student learning. Any broader
restriction could be held unconstitutional.
See M.A.L. v. Kinsland,
No. 07-10391 (E.D. Mich. Jan. 30, 2007)
(student distribution of literature in hallways must be allowed because there
was no finding that it would disrupt school operations).
[12] A “manner”
restriction might specify whether or not persons distributing the material may
stand at the main entrance to the building, or might limit the number of copies
of a pamphlet that may be distributed. Hedges v. Wauconda Community Unit Sch. Dist. No. 118, 9 F.3d 1295
(7th Cir. 1993). Such
restrictions must be applied without discrimination as to viewpoint of the
individual who wishes to distribute non-school sponsored literature. Note that the courts have held a school
district’s internal mail distribution system is not a public forum, and thus
school districts are not required to allow the mail system to be used for
distribution of non-school sponsored materials.
Perry Educ. Ass’n v. Perry Local Educ. Ass’n,
460 U.S. 37 (1983).
[13] When students
are excused from class and go outside under school supervision to watch the
Olympic Torch relay on the street near the school, they are at a school
function. Morse v. Frederick, 551 U.S. __, 127 S.
Ct. 2618 (2007).
[14] The standard
for evaluating the reasonableness of controls on student self-expression and
student speech is whether or not the speech substantially
or materially disrupts school activity, or could reasonably be forecast to
cause such disruption. Tinker v. Des Moines Indep. Community Sch. Dist.,
393 U.S. 503 (1979) (students protesting Vietnam War entitled to wear black
armbands).
[15] Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (student may be disciplined for
giving speech at school assembly that contained sexual innuendos and vulgar
language). T-shirt that impugned
character of sitting U.S. president was not vulgar or offensive within meaning
of Fraser according to Second Circuit
Court of Appeals. Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006).
[16] Morse v. Frederick, 551 U.S. __, 127 S.
Ct. 2618 (2007) (school officials may prohibit speech
that they reasonably believe advocates illegal drug use, so long as the speech
cannot be interpreted as commenting on any political or social issue). Student had First Amendment right to wear
T-shirt that criticized President Bush by depicting him as a drug and alcohol
user and a “chicken-hawk” because it did not advocate use of drugs. Guiles
v. Marineau, 461 F.3d 320 (2d Cir. 2006).
[17] In evaluating
whether an activity is reasonably forecast to cause disruption, it is enough
that there be a reasonably foreseeable risk or disruption, even if there is no
“true threat” to someone at school. Wisniewski
v. Board of Educ. of the Weedsport Central Sch. Dist.,
No. 06-3394-cv (2d Cir. July 5, 2007). Furthermore, in some circumstances, a
student’s speech outside of school may be reasonably viewed as materially disrupting
school activity; therefore this policy does not prevent the imposition of
discipline on a student whose disruptive speech occurs off campus. See
Wisniewski v. Board of Educ. (potentially
threatening instant message icon depicting teacher being shot that was sent by
student to other people from home computer properly resulted in suspension of
student; no First Amendment protection.)
[18] Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 273 (1988) (school officials may exercise editorial control over
school newspaper); Peck v. Baldwinsville
Central Sch. Dist., 426 F.3d 617 (2d
Cir. 2005) (teacher may censor elementary school student’s poster expressing
religious views when it did not meet pedagogical requirements of class
assignment).