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Just as schools were beginning to solve the gang problem, a scarier threat emerged: mass killings like the April 1999 massacre at Columbine High School near Littleton, Colo. Some teachers and principals began to see potential threats behind all kinds of behavior, provoking free-speech disputes that often landed in court. In 2000 a teacher at Northwest School in Leominster, Mass., kicked Michael Demers, 15, out of class for talking. Another teacher asked Demers how he felt about the ejection, and Demers drew two pictures: one of explosives surrounding the school and another of a gun pointed at the superintendent's head. The principal did nothing until the next day, when Demers wrote on a paper "I want to die" and "I hate life." School officials recommended a visit to a psychiatrist, but Demers refused, so they suspended him for the rest of the school year. He sued, claiming the punishment violated his First Amendment right to express himself through his drawing. In 2003 a federal district court ruled against him, saying Demers should have known his drawing and note were "true threats."
The line between protected speech and disruptive or dangerous comments has gotten even fuzzier since the Internet blossomed. In December 2005 Justin Layshock, a senior at Hickory High School in Hermitage, Pa., used his grandmother's computer after school to create a parody profile of his principal on MySpace.com When the school found out, it suspended Layshock, citing evidence that Layshock's prank made the school temporarily shut down its website. Although Layshock eventually returned to his school, the lawsuit continues.
The case has outraged civil-liberties advocates, but Francisco Negrón, general counsel of the National School Boards Association, says students and parents should expand their understanding of a school's boundaries. He notes that schools in Prince Georges County, Md., and elsewhere now hold some classes online and that many public schools are as much virtual communities as real ones. "When kids go on MySpace and make threats against teachers or other students," he says, "that becomes a safety issue for schools."
If there is a single organization most responsible for the surge in student-speech cases, it may be the Alliance Defense Fund (ADF), an Arizona-based network of Christian lawyers. Since 1994 the ADF has filed hundreds of cases advocating religious speech in the schools and a spokesman claims that it is "the driving force on this issue in the courts today."
A typical ADF case involves a student prevented from singing a religious song, distributing antiabortion pamphlets or, most recently, wearing an anti-gay T shirt at school. In a case decided last month, the organization's lawyers represented Heidi Zamecnik, 17, a senior at Neuqua Valley High School in Naperville, Ill., a suburb southwest of Chicago. Zamecnik wanted to wear a T shirt that said BE HAPPY, NOT GAY on the day after students observed a Day of Silence in support of gay rights. The school said she could wear a shirt opposing homosexuality, but one with a less derogatory message like be happy, be straight. The ADF lawyers argued that the proposal violated Zamecnik's free-speech rights, but a federal judge disagreed. He ruled that the school's "legitimate pedagogical interest" in "promoting policies of tolerance" allowed it to restrict Zamecnik's speech to a positive message.
Mike Johnson, an attorney for the ADF, criticizes the decision as illogical: "Certainly the First Amendment has got to protect negative statements as well." Johnson views ADF lawsuits as helping public schools, rectifying what he calls the "intimidation and misinformation" that has made schools skittish about religion on campus. But the substantial cost that these and other suits impose on education has others deeply worried.
Sally Jensen Dutcher, general counsel for the Napa Valley schools, says the dress-code case will cost the district at least $50,000 in expenses if it goes to trial, and perhaps "hundreds of thousands" if it's appealed. That's a small piece of the district's $118 million budget, but it "bothers me when that money could be better spent educating students," she says.
Money isn't the half of it. Arum's research indicates that cases like Tinker encourage students and teachers to believe that kids have far more legal rights than they actually do. Possibly as a result, 82% of public school teachers and 77% of principals practice "defensive teaching" like ignoring misbehavior so they can avoid lawsuits, according to a 2004 Harris poll. "What these cases do," says Negrón , "is have a chilling effect on [the ability of] administrators and teachers to make the decisions they need to make."
In 2002 the Juneau-Douglas High School in Alaska let students cross the street to watch the Olympic torch pass on its way to Salt Lake City. As TV cameras rolled, senior Joseph Frederick and several friends unfurled a banner that said BONG HITS 4 JESUS. Frederick later testified that the banner was supposed to be "meaningless and funny, in order to get on television." But the school principal was not amused, and she suspended Frederick for 10 days.
Frederick sued the school for violation of his free-speech rights and won in the lower federal courts. But the Supreme Court accepted the school's appeal and is expected to rule on the case before July. It is the most significant high-court case since Tinker to test a school's authority to suppress student dissent, but that may be where the similarities end. "Tinker was all about explicitly political topics, and the courts were sympathetic about protecting students' fundamental political rights," says Arum. "It's quite different when you're talking about bong hits." Or, for that matter, Tigger socks.