Schools Take Note: Obscurity Can Be Bliss

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on September 10, 2008. Andy Warhol once declared that everybody is entitled to his or her 15 minutes of fame. Lately obscure school districts seem to be seeking their brief moment in the national spotlight. Four years ago the Dover Area School District, outside York, Pennsylvania, achieved notoriety when it tried to inject the study of Intelligent Design into its biology curriculum. A federal district court ruled the effort unconstitutional. Kitzmiller v. Dover Area Sch. Dist, 04 CV 2688, (Middle Dist. PA 2005). Now comes the Watson Chapel School District, outside Pine Bluff, Arkansas. In October 2006 it suspended several students for wearing black armbands to school. Last week a federal circuit court of appeals held that the suspensions violated the students’ Free Speech rights. It affirmed the ruling of the trial court. Lowry v. Watson Chapel Sch. Dist., (8th Cir. 2008). Here are some of the facts of the Watson Chapel case. In the summer of 2006 the school district adopted a mandatory dress code with little student or parent input. The code required students to wear khaki pants and white, polo shirts. Students could not let “personal adornments,” such as rags, ribbons or jewelry, cover the pants and shirts. “(A)ny attempt to defeat the uniformity intended by this policy (was) prohibited.” Many students and parents objected to the terms of the code. They agreed that on a certain day in October students wanting to show their displeasure with the code would wear black armbands to school. The armbands would cover the wrist, forearm or bicep of the student and not his or her uniform. The administration learned of the pending protest from the media. It warned that it would suspend any student wearing a black armband. When several did, it followed through with its threat. Wait a second, you might say. Was not the wearing of black armbands at school to protest the Vietnam War the subject of a landmark Supreme Court case, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)? Did not the Court state that students do not “shed their constitutional rights to freedom of speech or expression at the school house gate?” Did not the Court further rule that the wearing of black armbands is a form of “pure speech” and that school districts cannot ban the armbands unless the wearing of them materially disrupts the school environment? Did not the students prevail in Tinker? Yes to all of your questions. Nevertheless, Watson Chapel attempted to distinguish itself from the school district in Tinker. First, Watson Chapel argued that it suspended the students for violating the uniformity clause of the dress code, not for speaking out against the policy. On the day of trial it dropped the argument and conceded that it suspended the students for speaking out. Watson Chapel also argued that Tinker did not apply, because the Watson Chapel students were only protesting a school board dress policy of limited significance, not a federal war policy. The circuit court found this distinction to be immaterial. It quoted another Supreme Court decision that boards can act as “tyrants” as much as Congress and “none who act under color of law (are) beyond reach of the Constitution.” W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Watson Chapel did correctly point out that the Supreme Court has narrowed the scope of Tinker. A school district need not show material disruption to punish sexually explicit speech which is not obscene, Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), and speech reasonably regarded as encouraging illegal drug use. Morse v. Frederick, _ U.S. _, 127 S.Ct. 2618 (2007). But the speech in this case was not sexually explicit and did not promote drug use. What the students did was “so similar in all constitutionally relevant facts that (the Tinker) holding is dispositive,” so held the circuit court. The circuit court continued the permanent injunction which the trial court granted. It then turned to the issue of attorney fees, $45,600, awarded by the trial court, which may have been the real reason that Watson Chapel appealed. Here too, the circuit court affirmed the trial court. I will explain why in my next column. Let us hope that none of our school districts want to follow in the footsteps of the Watson Chapel School District. Obscurity can be bliss.