Question No 1:
In the eighth edition of the book, on page 437 under School Sponsored
Publications it says: "Non-school publications may be
regulated only by time, place and manner of distribution; they cannot
be regulated as to content. The time, place, manner restrictions
of student publications are contingent upon the school having created a
limited public forum as opposed to a nonpublic or closed forum." What
does this sentence mean?
Answer:
There are a lot of odd comments in the casebook, particularly when it
stretches beyond the subject of education law and addresses general
First Amendment issues. I'm not a 100 percent sure what the quoted
sentence means, but I'll take a stab at what it means. It is comparing
the greater protection given to publications like newspapers outside
the public school context to the results in Hazelwood. The Hazelwood
standard allows the school to regulate (censor) the content of the
school newspaper if it can justify the regulation because it has a
legitimate pedagogical objective. That's a pretty low standard. In
Hazelwood, the principal had two such reasons, journalists should get
both sides of a story they write about and student journalists need to
protect the privacy of students they write about. Neither justification
would be acceptable as a grounds for censorship of a newspaper outside
the school newspaper context. The comment that non-school publication
could be regulated based on time, place, and manner of distribution,
but not content is not exactly true. It's basically saying that the
government could never regulate a private newspaper based on its
content (unlike the school newspaper in Hazelwood). That's usually the
case, but in theory at least, the government could regulate based on
content if it could satisfy strict scrutiny. However, as a practical
matter its almost impossible to satisfy that standard when it comes to
private newspapers. This doesn't tell you anything you don't know. It
tells you that the standards for protecting speech in school are
different (less protection) than nonschool speech and even less if it
is speech in a school-sponsored publication like in Hazelwood.
The reference to time, place, and manner regulations in the first
sentence is related to regulations that are based on something other
than the content of the speech. For example, if the government said
newspapers couldn't be delivered to homes after 10 p.m. at night and
before 6 a.m. in the morning in order to protect the privacy and safety
of residents, that would be based on time, place, and manner (time) and
it wouldn't be based on content. Such regulations would only have to
satisfy intermediate scrutiny, but even that is more rigorous than the
Hazelwood standard. We didn't look at the First Amendment outside the
schools context (speech at school or student speech away from school
that affects school and is treated much like school speech) so that
part of the sentence doesn't refer to anything we studied.
The reference to time, place, and manner regulations of student
publications in the second sentence is related to situations where a
school creates a public forum for student speech rather than sponsoring
a publication (as it did in Hazelwood). Students have more protection
if the speech is not school-sponsored (since Hazelwood wouldn't apply,
but Tinker likely would (at least assuming that the paper doesn't
contain foul language and depending on how you interpret the scope of
Fraser). Content regulations of an underground newspaper (written by
students but not in connection with an official school activity) which
the students want to distribute at school would be governed by Tinker.
If the restriction wasn't based on the impact of the paper (whether it
caused disruption), it could be a regulation of how it could be
distributed (only before or after classes, only from a table in the
hall and not in the hallway as students moved between classes, etc.). A
court might use the time, place and manner standard (content neutral,
substantially related to an important government interest, and leaves
open ample, alternative means of communication) to evaluate a
restriction on distribution (as the sentence suggests) (see the review
on the subject of the public forum doctrine to see this test) if it
considered the opportunity to distribute the paper (like setting up a
table for purposes of distributing student speech) to be the creation
of a public forum (see next paragraph). When it comes to the regulation
of student speech based on its content (the subject of all the student
speech cases we read), they were all analyzed under the Supreme Court's
student speech quartet. You should use those if an exam question asks
about student speech at least if there is no public forum argument that
could be made as an alternative argument (see below).
The final reference in the sentence is to the possibility that a school
could create a limited public forum. We read a few cases where that
happened (Lamb's Chapel and Good News Club). If a school does that it
can only regulate speech based on its content if it satisfies strict
scrutiny. That's why the regulations failed in both Lamb's Chapel and
Good News Club. They couldn't satisfy that standard. It's also why lots
of other cases involved failed efforts to argue something was a public
forum (the opportunity to deliver a solemnizing message before football
games in Doe, the bulletin board in the classroom in Lee v. York County
School Division). That argument is made by a challenger in the school
context because if the government has created a designated public forum
(limited or unlimited), it has to provide more speech rights than if it
hasn't. In Hazelwood, the Court said the school newspaper wasn't a
limited public forum, but was a school-sponsored expressive activity.
There are very few cases where schools are found to have created public
forums in the elementary and secondary school context if the forum is
for students rather than for non-students. It's no accident that the
two cases where the public forum doctrine was relied on in the schools
context involved use by community members after the school made its
facilities available while school wasn't in session. While school is in
session, it's much less likely a school would have such an intent. The
Equal Access Act is based on the premise that if a school created a
club period before or after school, the club period would be a
designated public forum. The Supreme Court has never decided that
question in an elementary or secondary education case.
In general, just forget about the sentence and focus on the cases we
read and the material in the outline.
Question No 2:
I just did the practice exam question about the school bulletin board
from your Fall, 2001 First Amendment Rights exam.
In your exam sheet, you did not mention the response of the students
and teachers who complained. How would those complaints be used. Would
they be used as part of the Pickering/Connick balancing test? Would the
complaints be part of the weighing of the school’s interest in an
efficient workplace and evidence that the postings on the board caused
a problem? Could you apply Tinker and use the evidence of disruption
under that analysis?
Also, is it important that the school did not have a policy for
moderating the specific bulletin board, but the principal maintained
ultimate control over all of the bulletin boards? Does that factor into
the argument that it is a nonpublic forum? I recall the policy
discussion coming up during Lee v. York County School Division on page
840 in the Seventh Edition, but my notes are sparse on that topic.
Answer:
As you suggest, the complaints by students and teachers are only
relevant for possible use under the Pickering/Connick.balancing test.
The students and teachers who complain are not asserting a First
Amendment right to take the postings down, they are just complaining
because they don't like the postings. It is the principal whose action
is being challenged. She is the government actor whose action is
challenged as violating Mr. Downs' First Amendment rights. The
reactions of the teachers
and students are part of her motive for the removal, or at least why
she was aware of the postings. Disruption is not relevant here in
exactly the same way it would be under a Tinker analysis which uses a
material disruption standard. You could argue that Tinker should apply
to teachers are well as students, but none of the Supreme Court cases
since Tinker
apply Tinker to teacher speech so that is a stretch.
Also as you suggest, the nature of the bulletin board, why it was
created, who is allowed to post items on it and why, and who controls
the content of the board are relevant to whether the board is a limited
public forum or not. There are three possibilities for the character of
the forum: (1) a designated/limited public forum (which can be
regulated by time, place, and manner regulations or by content-based
regulations that satisfy strict scrutiny); (2) a nonpublic forum (which
can be regulated by regulations that are reasonable in light of the
nature of the forum and not based on viewpoint); or (3) a forum only
for the school's own speech (there are no first amendment limits on the
school's ability to communicate its chosen message; the first amendment
limits are on the government's ability to regulate private speech). You
could also argue that the bulletin board contains school-sponsored
speech, as in Hazelwood, and, therefore, it can be censored so long as
the censorship is related to reasonable pedagogical objectives.
However, the board isn't for student speech just teacher speech and so
you have the same problem with this argument as you do in applying
Tinker to teacher speech.
You're right to see the relevance of Lee and his classroom bulletin
board. In that case, the court used two different modes of analysis.
First, it used Pickering/Connick. Second, it used Hazelwood to
establish that the speech was curricular speech imputed to the school
and therefore within the control of the school. I think the court used
the Hazelwood analysis as the equivalent of arguing that the speech was
official duty speech under Garcetti or, in the alternative, the
school's own speech. Either of these arguments, if accepted, would
allow the school to control the speech on the bulletin board without
worrying about the First Amendment. These arguments are different than
the public forum analysis which classifies the bulletin board as a
nonpublic forum that the school can control by reasonable regulations
that are not based on viewpoint. Under public forum analysis, the board
would be classified as a nonforum because the school did not make it
available so teachers could express themselves, but instead it was made
available to assist the educational program of the school. The purpose
of providing the board, as well as the school's practice of allowing
the principal to control the content of the board, are the two criteria
that would be used in establishing that the board is a nonpublic forum.
Question No. 3:
The Lemon Test and the
Endorsement Test are similar. Under the post you put up on this,
it says that endorsement was originally meant to frame/highlight
the important aspects of the first two prongs of the Lemon test, but
that some courts apply them separately. I am wondering for our
purposes, if given the opportunity, should we analyze them as separate
tests or in conjunction?
Answer:
On an answer
sheet, it’s likely I’ll award points separately for applying the
Lemon test and the Endorsement test. Therefore, I would suggest
you discuss the
Endorsement test separately after applying the Lemon test. The
main way in which the Endorsement test adds something distinct to the
analysis is under
the effect prong where it causes you to look at the challenged practice
or activity by focusing on how it would affect the knowledgeable
observer who observes or participates in the challenged activity (like
students who attend a graduation or a football game where a prayer is
included). In Doe, the football prayer case, the effect prong
under Lemon would look at whether there is psychological coercion and
whether the school’s involvement with the prayer is such that it puts
the imprimatur of the school on the prayer. By contrast, under
the endorsement test you would slightly reframe the effect analysis to
focus on whether students and families who attend the game and who are
knowledgeable about the history of football prayer beginning with the
student chaplain would perceive the school as endorsing religion by
allowing the prayer. While the two tests do overlap, they can be
separately applied and that is probably a better choice in terms of
maximizing points earned on an exam.
Question No. 4
I'm not sure what we are supposed to do when we are asked to use the
Stone Constitution on the exam. Are we only supposed to answer
the question based on the language in the Stone Constitution?
Answer:
You need to make arguments that rely on the language in the specific
provisions cited. These arguments start with the text, but can use
interpretative techniques that were used in cases that we read
involving state constitutions. Some of those techniques could be
applied to the 2011 Stone Constitution even if the language isn't
identical. However, all of the arguments you make have to be linked to
the specific language in the Stone Constitution. Examples of the kind
of factors that can be considered in interpreting the language are
described in the course review section on state constitutional
provisions.