How far can public school officials go in regulating student speech? The traditional rule is that officials can quell speech that creates a “substantial disruption” of the educational process. Now, the United States Court of Appeals for the Fifth Circuit appears to have provided school officials in the Fifth Circuit with a broader definition of substantial disruption than previously available. In A.M. v. Cash, –F.3d–, (5th Cir. 2009), in response to previous incidents, a high school adopted a policy prohibiting the display of the Confederate flag on school grounds. When two students were prevented from carrying bags decorated with the Confederate flag, the students filed suit arguing the policy violated their free speech and expression rights.
The court found that while students maintain freedom of speech and expression rights in school, school official have the right to prescribe and control conduct in the schools. The court noted the seminal United States Supreme Court case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which set forth the standard that school officials may prohibit student speech and expression if school officials can reasonably forecast that the speech in question would cause a substantial disruption of, or material interference with, school activities.
In the new Fifth Circuit case, the court found that the student body had been plagued with racial incidents; it further held that “[e]ven if these events do not rise to the level of a “substantial disruption” under Tinker (thus justifying the ban based on past actual disruption), they serve as a factual basis for administrators’ forecast that disputations might occur if students were allowed to display racially charged symbols such as the Confederate flag.”
The court upheld the action of the school, and concluded that school officials are not required to wait for the speech to cause disruption before acting. The court also pointed out that the speech in question did not have to have been disruptive in the past. “Tinker does not require a showing of past disruption; administrators can also meet their burden by establishing that they had a reasonable expectation, grounded in fact, that the proscribed speech would probably result in disruption.”
While A.M. only is binding on courts in the Fifth Circuit, this case provides additional guidance for school officials in an area of law that is often murky. For more information about how this case and others may affect your District’s expression, speech, or dress code policies, please contact our office.
