February 27, 2018 Curtis Rhodes Superintendent Needville ISD P.O. Box 412 Needville, TX 77461 rhodesc@needvilleisd.com Re: Freedom of Speech in Schools Dear Superintendent Rhodes: We write in response to a post made on Facebook on February 21, 2018, on Needville High School’s Facebook page, which was signed under your name.1 Several students, parents, and community members have reached out to us with concern, asking questions about their rights in school, including their right to freedom of expression. The statement on Needville’s Facebook page raises two constitutional problems, which could chill protected speech in school. First, it suggests that students cannot participate in any form of political expression at school. Second, it suggests that students participating in walkouts may be subject to harsher punishments than they would otherwise receive for departures from campus without permission. Schools are the place where students learn the things they need to be vibrant and engaged members of our society, and districts like Needville have an important role to play in upholding our 1 We are aware that the post has recently been removed from Facebook. For clarity, the referenced post read: The Needville ISD is very sensitive to violence in schools including the recent incident in Florida. Anytime an individual deliberately chooses to harm others, we are sensitive and compassionate to those impacted. There is a "movement" attempting to stage walkouts/disruptions of the school through social media and/or other media outlets. Please be advised that the Needville ISD will not allow a student demonstration during school hours for any type of protest or awareness!! Should students choose to do so, they will be suspended from school for 3 days and face all the consequences that come along with an out of school suspension. Life is all about choices and every choice has a consequence whether it be positive or negative. We will discipline no matter if it is one, fifty, or five hundred students involved. All will be suspended for 3 days and parent notes will not alleviate the discipline. A school is a place to learn and grow educationally, emotionally and morally. A disruption of the school will not be tolerated. Respect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest. Curtis Rhodes Superintendent of Schools Letter to Needville ISD Page 2 constitutional values and fostering productive dialogue. We hope that this letter helps simplify the constitutional rights at issue, and we ask that the District immediately clarify the applicable policy. The Right to Expression in Schools is Protected by the First Amendment The First Amendment of the United States Constitution protects a person’s right to express her opinion. “Expression” under the First Amendment includes spoken words, made verbally or in writing through petitions and printed materials—but it also encompasses all symbolic acts intended to convey a message, including wearing buttons, armbands, and t-shirts. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969). This holds true even in school. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506. And this makes sense given the educational purpose of our school system: “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). This principle is especially important in circumstances like the one at issue, where students are expressing views about matters concerning political issues at the forefront of our national consciousness. “Political speech, of course, is at the core of what the First Amendment is designed to protect.” Morse v. Frederick, 551 U.S. 393, 403 (2007) (quotation marks omitted). As your Facebook post acknowledges, our country is enmeshed in a political and social debate about gun violence in schools and appropriate ways to redress that violence. Students across the country have also been engaging in political expression concerning immigration policy and police brutality.2 Students have a constitutional right to express their views on those issues, even at school. Although a school can limit student speech that materially disrupts the functioning of the school, is lewd, or promotes drug use, and can implement some content-neutral restrictions, like a complete prohibition of messages on shirts, a school cannot otherwise impose content-based restrictions on student speech. See, e.g., Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 509 (5th Cir. 2009). Indeed, a student’s political expression cannot be censored just because it “could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.” Id. at 409. Only “plainly offensive” speech that is sexually explicit or profane can be restricted. LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001). Nor can a school censor expression under the guise of labeling that speech disruptive. “Officials must base their decisions ‘on fact, not intuition, that . . . disruption would probably result from the 2 E.g., Grace Guarnieri, Students Walk Out of Texas High School After Classmate Detained by ICE, NEWSWEEK, Feb. 14, 2018, http://www.newsweek.com/students-high-school-protest-detained-ice-807400; Chelsea Trahan, Texas Students Walk Out of Class, Rally for Immigrant Protections, SPECTRUM NEWS AUSTIN, Nov. 9, 2017, http://spectrumlocalnews.com/tx/austin/news/2017/11/08/texas-students-will-walk-out-of-class-rallying-forimmigrant-protections; Some North Texas High School Football Players Kneel During Anthem, FOX4 NEWS, Sept. 29, 2017, http://www.fox4news.com/news/some-north-texas-high-school-football-players-kneel-during-anthem. Letter to Needville ISD Page 3 exercise of the constitutional right,’” and “be able to show that [their] action[s] [were] caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 221–22 (5th Cir. 2009) (quoting Butts v. Dallas Indep. Sch. Dist., 436 F.2d 728, 731 (5th Cir.1971), and Tinker, 393 U.S. at 508)). School officials may not ban speech “based on the officials’ mere expectation that the speech will cause . . . a disruption.” Id. at 221. Under this standard, courts have upheld student expression taking positions on various political and social issues. For example, courts have upheld the rights of middle schoolers to wear breast cancer awareness bracelets that read, “I ♥ boobies! (KEEP A BREAST),” Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 320 (3d Cir. 2013); the rights of high schoolers to wear t-shirts, armbands, stickers, or buttons with symbols or phrases expressing support and equal treatment of LGBTQ students, including slogans like, “Equal, Not Special Rights,” “Gay? Fine by Me,” “Gay Pride,” “I Support My Gay Friends,” and “Sexual Orientation is Not a Voice, Religion, However, Is,” Gillman ex rel. Gillman v. Sch. Bd. for Holmes Cnty., 567 F. Supp. 2d 1359, 1362, 1375, 1379 (N.D. Fla. 2008); and the right of a high schooler to wear a t-shirt that displayed an image of George W. Bush surrounded by dollar signs, oil rigs, lines of cocaine, and alcohol. Guiles v. Marineau, 461 F.3d 320, 322, 331 (2d Cir. 2006). Accordingly, students who are protesting and raising awareness in school in non-disruptive ways are protected by the First Amendment. We ask that you clarify to students that they have every right to engage in such speech.   Consequences for School Disruptions and Walkouts Must Be Constitutional The Facebook statement at issue also outlines an automatic three-day suspension of students for any student demonstration during school hours. This raises numerous concerns. First, the Constitution does not permit an administrator to punish a student more harshly than it otherwise for conduct that is associated with political speech. See, e.g., Rolf v. City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1996) (“It is clear that state action designed to retaliate against and chill political expression strikes at the heart of the First Amendment.”); Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006) (explaining that a school official is liable for First Amendment retaliation if students would not have been similarly punished if they had not engaged in the protected speech); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). If participating in a demonstration by leaving class or school grounds (with or without permission) would for another reason be subject to a lesser consequence, the automatic three-day suspension raises constitutional problems.3 Moreover, to punish a student with an out-of-school suspension, the Constitution, state law, and the School Code require an administrator to make an individualized determination relating to the 3 Needville ISD’s Code of Conduct addresses two categories of behavior and accompanying consequences relevant here: (1) leaving school grounds without permission, and (2) engaging in actions or demonstrations that substantially disrupt or materially interfere with school activities. The School Code identifies those behaviors as general conduct offenses, for which a student can be disciplined. The School Code identifies a host of applicable discipline management techniques, ranging from verbal correction, demerits, behavioral contracts, and counseling to detention, in-school suspension, withdrawal of privileges, assignments of school duties, and out-of-school suspension. Letter to Needville ISD Page 4 circumstances of the conduct, including whether the student was engaging in self-defense, whether the student had the requisite intent at the time of the conduct, and the student’s disciplinary history. See Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961); Sullivan v. Hous. Indep. Sch. Dist., 307 F. Supp. 1328, 1342 (S.D. Tex. 1969) (holding that when disciplinary actions can substantially injure an individual, such acts must comply with minimal procedural requirements of due process of law), supplemented, 333 F. Supp. 1149 (S.D. Tex. 1971), vacated on other grounds, 475 F.3d 1071 (5th Cir. 1973); TEX. EDUC. CODE § 37.001(a)(4).4 The School Code also requires that an administrator have an informal conference with that student before making a disciplinary decision.5 Your statement that all students participating in student demonstrations during school hours will be suspended for three days ignores each of these due process requirements. We encourage you to rethink the decision to suspend students from school in these circumstances. Data shows that schools who rely heavily on exclusionary discipline like suspensions have lower school climate ratings and lower rates of student achievement.6 Creating a negative and punitive climate in schools could be particularly harmful now, at a time when students need safe and supportive environments as they grapple with feelings of discomfort and fear and try to determine how to best express themselves and support their teachers and peers. In this spirit, other Texas districts confronted with these circumstances have treated class missed for walkouts as unexcused absences, but have declined to take further disciplinary action. Moments like these are important opportunities for students to learn about civic engagement and put their education into practice. As the Supreme Court has explained, public schools are the mechanism by which we prepare “individuals for participation as citizens” and preserve “the values on which our society rests.” Ambach v. Norwick, 441 U.S. 68, 76 (1979). We encourage the Needville administration to foster productive dialogue about the First Amendment and its limits so that students can make informed choices about civic engagement over the course of their lives. We have enclosed a Know Your Rights pamphlet, in the event it is a useful resource for your students or administrators. We are happy to set-up a conversation to discuss the contents of this letter in more detail, and look forward to hearing from you regarding the clarification of your policy. 4 The language in the School Code mirrors state law requirements set out in the Texas Education Code. According to the School Code: “In deciding whether to order out-of-school suspension, the district shall take into consideration: 1. Self-defense (see glossary), 2. Intent or lack of intent at the time the student engaged in the conduct, and 3. The student’s disciplinary history.” NEEDVILLE ISD, STUDENT CODE OF CONDUCT 11 (2017), https://s3.amazonaws.com/scschoolfiles/265/student_code_of_conduct_17-18.pdf (emphasis added). 5 Id. (“Before being suspended a student shall have an informal conference with the appropriate administrator, who shall advise the student of the conduct of which he or she is accused. The student shall be given the opportunity to explain his or her version of the incident before the administrator’s decision is made.”). 6 See American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in Schools?: An Evidentiary Review and Recommendations, AM. PSYCHOLOGIST 854 (DEC. 2008). Letter to Needville ISD Page 5 Sincerely, Kali Cohn Staff Attorney ACLU of Texas 214-346-6577 kcohn@aclutx.org cc: Morgan Craven Director School-to-Prison Pipeline Project Texas Appleseed 512-473-2800, ext. 110 mcraven@texasappleseed.net Chris Janacek, President Needville ISD Board of Trustees janicekc@needvilleisd.com Kim Janke, Vice President Needville ISD Board of Trustees jankek@needvilleisd.com Scott Valchar, Secretary Needville ISD Board of Trustees valchars@needvilleisd.com Tim Sbrusch, Assistant Secretary Needville ISD Board of Trustees sbruscht@needvilleisd.com Jim Kocian Needville ISD Board of Trustees Kocianj@needvilleisd.com Glenn Vecera Needville ISD Board of Trustees vecerag@needvilleisd.com John West Needville ISD Board of Trustees westj@needvilleisd.com Natalia M. Cornelio Criminal Justice Reform Director Texas Civil Rights Project 832-767-3650, ext. 160 natalia@texascivilrightsproject.org