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Chaos in Public Schools: Federal Courts Yield to Students while Administrators And Teachers Struggle to Control the Increasingly Violent and Disorderly Scholastic Environment

B.A., Philosophy, State University of New York at Binghamton, 2001. J.D., Benjamin N. Cardozo School of Law, 2005. Notes Editor, Cardozo Public Law, Policy, and Ethics Journal, 2004-2005. I would like to express my sincere gratitude to Professor Marci Hamilton for cultivating my interest in constitutional law and guiding me through the process of writing this article. I would also like to thank the entire staff of the Cardozo Public Law, Policy, and Ethics Journal for their hard work and determination regarding my article and production of the journal as a whole.

Introduction.

With every decision upholding students' right to free expression in public schools, the federal courts of this country weaken the structural integrity of the foundation that is our system of public education. The case of Barber v. Dearborn Public Schools1 is no exception. Despite the fact that the population of Dearborn, Michigan "has the largest concentration of Arabs anywhere in the world outside of the Middle East,"2the United States District Court for the Eastern District of Michigan, Southern Division, chose to allow Bretton Barber to fuel the fire of racial and political controversy that existed at Dearborn High School.3

Specifically, the court upheld Barber's right to wear a T-shirt in public school depicting President George W. Bush and emblazoned with the political rhetoric "International Terrorist"4in the face of rising ethnic and political tensions. Such a decision is both repugnant to the current state of the law5and reveals a weakness in the law-specifically, the fact that school officials must meet an often unobtainable standard to restrict students' First Amendment6speech.7More often than not, teachers and administrators are unable to meet that burden.8

This note will examine the history of First Amendment litigation relating to speech in public schools, provide evidence of escalating violence in public schools associated with unfettered First Amendment rights, and will argue that the standard by which school officials and administrators may infringe on a student's First Amendment rights in order to preserve the integrity of the scholastic environment should be reduced.

Specifically, Part I of this note will analyze how the federal courts have arrived at the current state of the law; Part II will discuss how the standard is flawed and no longer applicable by providing evidence of escalating school violence associated with student insubordination; and Part III will propose an alternative standard which is more flexible and more congruent with the current state of world affairs. This new standard aims to provide school officials with the discretion they need to maintain the integrity of the public education system.

I. The History of First Amendment Litigation Regarding Constitutionally Protected Speech in Public Schools.

The following line of cases will demonstrate, among other things, how the lack of specific guidance from the Supreme Court has led to confusion and irregularity among the lower federal courts.9Without a workable standard that is both definitive and practical, the confusion will continue and the grasp that educators have over the public school system will continue to weaken.

A. School Administrators and Officials are Increasingly Required to Meet an Insurmountable Burden to Repress Students' First Amendment Speech in the Face of Potential Dangers and Disruptions to the Scholastic Environment.

In 1969, the Supreme Court of the United States decided the case of Tinker v. Des Moines Independent Community School District.10In that case, three students attending Des Moines public schools wore black armbands to voice their disapproval of the Vietnam War and were subsequently suspended from school after they failed to adhere to a regulation banning any student from wearing such an armband.11

The Supreme Court overturned the district court's ruling12by stating that there was "no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone."13The controlling standard for school officials to suppress students' First Amendment speech14emerged from this case and has been sustained with a few minor adjustments ever since. The Court stated, "Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible."15

The Court, presumably seeking to prevent public schools from becoming totalitarian communes, was misguide...

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