Punishing students for speech often backfires

On Board Online • July 18, 2022

By Bo Malin-Mayor

Editor's Note: The author, a former teacher in New York City public schools, is a student at Yale Law School. The article below is adapted from a longer treatment published in the April 2022 issue of The Yale Law Journal.

Since the 1969 U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District, student-speech cases have most commonly turned on the distinction between disruptive (punishable) and nondisruptive (not punishable) speech. Courts also have allowed schools to punish or censor speech categorized as "lewd," pro-drug or school-sponsored. Despite decades of jurisprudence, it is still difficult for both educators and courts to determine which forms of speech are disruptive or inappropriate enough that schools are allowed to punish them - especially when off-campus speech is involved. And even when school districts win in court, disciplining students for speech often backfires.

For example, in the 1986 case Bethel School District No. 403 v. Fraser, Matthew Fraser's school in the state of Washington suspended him for two days and removed him from a list of graduation speakers after he used sexually suggestive language at a school assembly. A key passage in his speech to nominate a fellow student for a student council office was:

I know a man who is rock hard - he's firm in his pants, he's firm in his shirt, his character is firm - but most of all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall.

The U.S. Supreme Court upheld the district's decision to punish Fraser, stating, "It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." The court reasoned that schools must be able to punish lewd speech in order to teach students "the habits and manners of civility."

But the students at Bethel High, it seems, did not learn their lesson. Fraser was still elected graduation speaker as a write-in, and students protested his punishment with signs reading "Stand Firm, Matt." Rather than teaching civility, the punishment seems to have turned students against it.

Fraser is far from the only student-expression case in which students failed to learn school authorities' intended lessons. In Doninger v. Niehoff, a student who was forbidden from running for student government due to "disruptive" and disparaging comments about administrators received a plurality of votes as a write-in candidate. The student in Hazelwood School District v. Kuhlmeier, whose article in a school newspaper was censored in a supposed attempt to teach responsible journalism, stated in 2010 that she "wouldn't change a thing" about her actions.

Then there is Joseph Frederick, who was suspended for hoisting a banner with the cryptic message "BONG HiTS 4 JESUS" at a school-supervised event. The school principal, Deborah Morse, interpreted the message as pro-drug and suspended him for five days (and doubled the punishment after Frederick quoted Thomas Jefferson's "speech limited is speech lost.") While the U.S. Supreme Court ruled in favor of the district in Morse v. Frederick, Frederick received a standing ovation from students when he visited his former high school several years later.

The pattern in these cases is that courts allow schools to punish a certain category of speech in order to teach a certain lesson, but students do not learn the lesson. This backfire effect happens frequently, yet schools and courts continue to ask only whether speech fits into a punishable category - not whether punishing it will work. Schools and courts both operate on the assumption that punishing a disruption leads to order, punishing lewd speech leads to civility and punishing pro-drug speech leads to anti-drug values. The examples above show that this assumption does not always hold.

The key issue is how students perceive discipline. Research shows that when students perceive discipline to be ad hoc, discriminatory or disrespectful, it only teaches students to turn against authority. When students perceive discipline as fair and respectful, they internalize rules as legitimate guides for conduct.

Many scholars have identified what contributes to the perception that an authority is fair and respectful.

These include the following:

Fairness

  • Clarity of rules
  • Consistent application of rules
  • Accuracy of punishment
  • Proportionality of punishment to misbehavior

Respect

  • Showing care for students and interest in their lives
  • Listening to student voices; reciprocal relationship with students
  • Warm or supportive demeanor
  • Explaining decisions

School leaders need to be more deliberate, and courts need to give greater scrutiny, to ensure that discipline for speech is fair. This is especially true for two types of speech (1) nondisruptive speech, and (2) sensitive political, religious or other core First Amendment speech. I suggest that, as a rule of thumb, students should always receive a full warning before punishment in such cases.

In other words, punishment would not occur upon the first violation of a speech rule. On that first violation, the student would have a chance to discuss with an authority what rule the student broke, how they broke it and how to avoid doing so in future. School officials would then issue a first strike or warning rather than punishing the student.

When school officials have warned a student about certain behavior and the student continues to engage in it, both the student and peers are more likely to regard punishment as legitimate.

The full-warning rule is an attempt to draw a line in the sand to make it easy for judges to evaluate school discipline for controversial speech. Judicial review could focus on whether warning was given rather than the intricacies of how particular discipline will be perceived by particular students in particular contexts. If a school suspends a student for political, religious or even "inappropriate" speech, and did not warn or counsel them first, the suspension should be overturned.

The full-warning approach may appear lenient. But when speech touches on highly sensitive topics, it is important to ensure that discipline is perceived as evenhanded and aimed at the student's own good. Because speech discipline often aims at shaping minds, the school's approach and judicial review ought to be calibrated to make sure that students understand the lesson being taught.


Read Malin-Mayor's 56-page article at bit.ly/3OFRMtD . The full citation is Proceduralize Student Speech, Note, 131 YALE L.J. 1880 (2022). Contact the author at bo.malin-mayor@yale.edu.

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