By Jerry Snyder
On the day of the National Student Walkout, a protest seeking legislative action relating to school shootings, Noah Christiansen, a 17-year-old student at McQueen High School, called Rep. Mark Amodei’s (R-NV) office to express his opinion on the necessity for gun control measures. He did so somewhat colorfully, by urging congress to “get off their fucking asses.”
Rep. Amodei’s staffer who took the call, Arturo Garzon, called the school and relayed the incident to administration. The school administration consequently suspended Mr. Christiansen for two days and determined that he may not serve in student government the following year. The school gave Christiansen a one-day reprieve from suspension so he could participate in a debate tournament.
There is a lot of room for opinion on the questions of whether Rep. Amodei’s office scored a public relations win or loss based on this incident. There is also probably some room for opinion as to how the school administration ought to have handled the matter.
What I want to talk about is specifically the question of whether the school violated Mr. Christiansen’s First Amendment rights by punishing him for engaging in the subject speech.
Summary of Relevant United States Supreme Court Cases
The seminal case regarding free speech rights of high school students is Tinker v. Des Moines Ind. Comm. School Dist. (1969). In Tinker, the United States Supreme Court held that a school violated its students’ free speech rights when it suspended five students for wearing black armbands to protest the Vietnam War.
The Court held that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” The Court ruled that in order to justify prohibition of a particular expression of opinion voiced by a student, a school district must show that the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The Court noted that the black armbands constituted speech that did not “intrude upon the work of the schools or the rights of other students.”
Notably, the speech at issue in Tinker was expressly political speech, which “is at the core of what the First Amendment is designed to protect.”
The Supreme Court has decided a number of cases in the wake of Tinker that limit the extent of the ruling in Tinker. In Bethel School Dist. No. 403 v. Fraser (1986), the court held that the school may punish a student for delivering a speech nominating a fellow student for a student government position using “an elaborate, graphic, and sexually explicit metaphor.”
The school concluded that this speech violated a disciplinary rule which provided that “conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” Consequently, the school suspended the student for three days. The Supreme Court held that the student’s speech was not entitled to protection because to permit such “vulgar and lewd speech … would undermine the school’s basic educational mission.” The court further noted that speech may be restricted where its content is sexually explicit and the audience may include children.
In Hazelwood School Dist. V. Kuhlmeier (1988) the Supreme Court held that a school did not violate students’ First Amendment rights when it deleted two pages of a school newspaper prior to publication. The deleted stories included a story about three students’ experience with pregnancy, and a story about divorce.
The school concluded that the discussions of sexual activity and birth control were not appropriate for younger students. The court noted a distinction between the questions of “whether the First Amendment requires a school to tolerate particular student speech” and “whether the First Amendment requires a school affirmatively to promote particular student speech.” The court noted that educators may exercise greater control where the expression occurs in the context of instructional activity such as school theatrical productions or publications. Accordingly, the court held that the standard articulated in Tinker applies only to the question of whether a school may punish student expression and not to the question of whether a school must assist in publishing student expression.
The Supreme Court next addressed the question in Morse v. Frederick (2007). In that case, a student displayed a banner reading “BONG HITS 4 JESUS” at a school sponsored trip to view the Olympic torch relay. The school principal confiscated the banner and suspended the student. The Supreme Court found that the analytical framework of Tinker was not absolute; that the “substantial disruption” analysis was not necessarily the test to be applied in every case. The Court held that because schools have an “important – indeed perhaps compelling” interest in deterring drug use, the school acted properly in limiting speech that promoted marijuana use.
Summary of the Legal Rule
In Tinker, the Supreme Court held that schools may only restrict student speech where that speech “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” The court has since held that this analysis does not fully apply in instances where the speech at issue is not merely “tolerated” by the school, but is “promoted” by the school by appearing at an assembly or in a school newspaper. The Court has further held that the Tinker “substantial interference” analysis does not apply where schools have an important or compelling interest in limiting the particular expression.
Did McQueen Violate Christiansen’s First Amendment Rights?
The first question is whether Christiansen made the subject speech in the context of a school sponsored event. The Reno Gazette-Journal has reported that Christiansen made the phone call during a 17-minute student walkout. This walkout was not a school-sponsored activity; while the Washoe County School District advised that it would not punish students for participating, it did not sponsor and condone the walkout. As such, this matter falls within what the Hazelwood Court referred to as the question of “whether the First Amendment requires a school to tolerate particular student speech,” and not whether the school must promote that speech.
The next question is whether Mr. Chistiansen’s speech intruded into an area where the school has an important or compelling interest. There is no indication that it does. Mr. Christiansen’s speech does not promote drug use or other activity that the school has an important or compelling interest in regulating. Most importantly, Mr. Christiansen’s call to Rep. Amodei was, at its core, political speech, and as such entitled to the highest degree of protection.
Because none of the cases that have limited the scope of Tinker apply to the facts here, I think that the core ruling of Tinker defines the rule to be applied: the fundamental question is whether Mr. Christiansen’s call to Rep. Amodei’s office “materially and substantially interfered with the requirements of appropriate discipline in the operation of the school.”
I don’t see facts to support the school’s action. Christiansen made the call during a student walkout, not during a school sponsored activity. There are no facts to indicate that other students even heard the allegedly offensive comment. His comment was made in the context of political speech and as such is at the heart of what the First Amendment protects.
This analysis is not terribly deep; I have not delved into circuit court cases that may be relevant. Furthermore, I can’t pretend to accurately predict what nine people who live in Washington D.C. and wear black robes might do. However, based on the broad principles articulated by Supreme Court cases since Tinker, it seems to me that the school administration, in punishing Christiansen for the statement he made to Rep. Amodei’s office, has violated Mr. Christiansen’s First Amendment rights.
Jerry Snyder has been practicing law for nearly two decades in California and northern Nevada, both in private and government practice. Jerry has represented individuals and businesses of all sizes, from small entrepreneurs to large public companies. Jerry has worked with individuals, companies and communities, and excels at delivering sensible solutions, regardless the size of the client or the scope of the situation. He has extensive experience litigating cases in areas of construction law, water law, corporate governance, real property law, business torts, and intellectual property.
