Legal Mailbag – 1-14-21

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:

I am a high school administrator at the James Hetfield High School (the board chair when the school was named was a big Metallica fan). A number of my faculty and staff have come to me very upset because a group of our students has organized a non-school sanctioned chapter of a national activist group that is very politically charged. They are referring to their “club” as the “James Hetfield High School Chapter of ___.” As of late, they have created a social media page and are taking pictures of themselves holding signs in different areas of the school building (library media center, gymnasium, etc.). Only willing participants are in the pictures, but some of the signs, while containing no swears, do contain some suggestive language.

Faculty members are asking me to do something, but I believe these students are within their First Amendment rights to organize and publicize their club. Our administrative team has told these students several times that their club is not school-sanctioned, but we have also told them that they can congregate and discuss things appropriately as an outside club during non-instructional time, since this is a public building. However, they do have this one big banner that spells out their chapter name, which includes the school name.

With the climate in the world today (and here at JHHS as of late), I either want to straighten out these students or inform the staff that the students have the legal right to do what they are doing. So, my question is two-fold. Am I correct that these students have a First Amendment right to hold their signs and take their photos? Can we at least tell them that they can’t use the name of our school as their chapter name?

Getting N. Earful


Dear Earful:

Taking your second question first, Legal Mailbag assures that you may tell these students that they cannot use the name of the high school in publicizing their club. As you emphasize, the club is not approved by JHHS. Use of the high school’s name, however, conveys the opposite impression, and students do not have the First Amendment right to confuse people by including the name of your high school in the name of the club.

Your other question is a little more complicated, and Legal Mailbag must use the all-purpose legal response – it depends. The students can hold their signs and take their photos, which is expressive activity. But such conduct must be allowed only if their actions are neither vulgar nor disruptive of school operations. Legal Mailbag notes that you describe some of the students’ signs as including “suggestive” language. If the signs are vulgar, you can prohibit them on that basis.

Legal Mailbag also notes that in posing your question, you describe the group as the Chapter of ______. How you fill in the blank may affect whether the students will be able to hold their signs, take their photos, and engage in conversation related to their club. As is implicit in your question, the students’ First Amendment right to free speech in the school setting is subject to the rule that the Court announced in Tinker v. Des Moines Independent Community School District (U.S. 1969): students have a right of free speech in school unless school officials reasonably forecast material disruption or substantial interference with the educational process or the invasion of the rights of others. A Chapter of the Young Democrats or the Young Republicans would be one thing, but a Chapter of the Proud Boys would be quite another.

Given your measured response to these students, Legal Mailbag presumes that these students are not disrupting school operations. That being the case, you should just leave them alone unless and until their activities are disruptive. However, you should also know that these students could ask for recognition of their club under the Equal Access Act. That status would guarantee the students the ability to meet during non-instructional time. Please let Legal Mailbag know if you want to know more about the Equal Access Act.

Legal Mailbag also notes your interest in the First Amendment, and asks that you stay tuned. Last year, the Third Circuit Court of Appeals considered the case of a student who received school discipline for posting vulgar comments on her Snapchat account after she did not make the varsity cheerleading squad. In B.L. v. Mahanoy Area School District, 964 F.3d 170 (3d Cir. 2020), the court affirmed the decision of the district court and held that the suspension of the student for her vulgar post violated her First Amendment rights. In its ruling, the court answered a question that many, including Legal Mailbag, have pondered — does the Tinker rule apply to off-campus speech? The court ruled that off-campus speech, including the social media post that got the student in trouble in the first place, is protected by the First Amendment and that the Tinker rule does not apply to such speech.

On January 8, 2021, the United States Supreme Court granted the request of the defendant school district that it hear the case. In the fifty-two years since Tinker was decided, the Court has revisited the issue of student free speech only three times before. Legal Mailbag is very excited that the Court has taken this case for review. Aren’t you?