Legal Mailbag – 12-18-19

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

My district has a project where students create a novel from the ground up, creating the characters, the location, the time period, etc., to show how the different aspects of a story all impact one another. Students can choose themes (their favorite sport, a favorite band, etc.) for their novels.

One of our new teachers came to me with the following problem. A student in her class used a Satanic symbol in his novel-writing project. A more experienced colleague had told the new teacher that students are not allowed to use such symbols in this project, and the new teacher directed the student not to include the symbol in his project. Now the student’s parent is threatening to sue. She is worried because she doesn’t have educators’ insurance and doesn’t want to get sued.

Can we really be forced to allow the student to include such a potentially-offensive symbol in a project? And is it too late for her to get that insurance?

Just helping out a Colleague

Dear Helping:

Legal Mailbag does not understand why a parent would be so eager to claim that his child somehow has the right to use a Satanic symbol in a class project, but ours is not to reason why. Ours is to understand the rights of students, parents and school administrators. Legal Mailbag is happy in this case to tell you that the parent does not have a valid claim against your colleague simply because she will not permit the use of Satanic symbols in a language arts project.

Presumably, the parent is claiming some sort of First Amendment right here. What he fails to recognize is that the rules are different when class projects are involved. We all remember the decision by the United States Supreme Court in Tinker v. Des Moines Independent School District (1969), holding that students have free speech rights in school as long as administrators do not reasonably forecast that the speech will cause substantial disruption or material interference with the educational process. We should also remember, however, the Court’s decision in Hazelwood School District v. Kuhlmeier (1988).

In Hazelwood, students editing the school newspaper asserted that they had the same right to a free press as do journalists in general. The Court rejected their argument, holding that school officials do not have to predict disruption to exercise editorial control over a school newspaper. Rather, school officials need only show that they have a legitimate pedagogical interest in exercising such control. Key to the holding was the fact that the school newspaper carries the imprimatur of the school, and school officials should therefore be able to control its content, provided that exercising such control is based on legitimate educational interests.

Since Hazelwood was decided, its reasoning has been extended to various other activities in the schools, including the school play or books used in the curriculum. Here, your colleague has a legitimate educational interest in restricting students doing their school projects from using symbols that others may find distracting, upsetting or offensive. The student may be free to wear a Satanic symbol on his T-shirt (Legal Mailbag reserves judgment pending review of the T-shirt) because that would involve individual student speech subject to the Tinker rule. But given the rule in Hazelwood, the teacher can hold firm in prohibiting the use of the symbol in a class project.

Finally, please tell your colleague not to worry about insurance. Teachers, administrators and school board members have extensive protection under Conn. Gen. Stat. § 10-235. That statute requires that boards of education indemnify and hold school officials harmless from claims made against them for actions they take in the course of their duties. That protection includes legal representation when school officials are sued. If this parent is so unwise as to carry through on his threat, the teacher will not be exposed to any personal liability. Happy Holidays to her, to you and to all!