Since the election of Donald Trump, who made divisive language a centerpiece of his campaign, school administrators across the country have found themselves in a tough spot, trying to promote civic engagement among students and protect their First Amendment rights while ensuring that all students feel safe and free from bullying.
“That’s always been the question when it comes to the First Amendment, even for adult speech: Where is the limit?” said activist Mary Beth Tinker, whose own First Amendment case led to a landmark Supreme Court ruling on free-speech protections for K-12 students.
In 1965, when Tinker was a junior high school student in Des Moines, Iowa, she was suspended for wearing a black armband to protest the Vietnam War — violating a new district policy. She sued with the help of the American Civil Liberties Union, and the justices ruled 7–2 that children do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The decision determined that students have the right to free expression in school unless their speech incites a “substantial disruption” or invades the rights of others. What that means, however, is still the subject of debate in schools and in courtrooms.
“The courts have said, ‘You cannot substantially disrupt school, you cannot impinge on the rights of others, you cannot have lewd speech, you cannot have speech that promotes illegal drugs,’ ” Tinker said. “So there are limits in the schools.”
A hard line on immigration rang sharply through Trump’s campaign rhetoric, and minority children became a primary target for school bullies after he won the presidency, said Katherine Cowan, spokeswoman for the National Association of School Psychologists. They were far from alone, however: Girls and LGBT students have also found themselves on the receiving end of abuse.
Cowan, who has worked for the association for nearly two decades, called the reaction to the election results unprecedented. The group, she said, has never received so many calls from educators reporting students in high distress — stemming largely from bullying and harassment.
“School psychologists are on the front lines of helping schools respond to those events, and I’ve never seen anything like this,” Cowan said.
Across the country, girls have described being grabbed by their genitals. “If a president can do it, I can too,” one boy responded. In one Maryland school, a poster for a blood drive was defaced by a handwritten racial slur.
Students who supported Trump have been bullied as well. In Rockville, Md., a 15-year-old boy in a “Make America Great Again” hat was attacked during an anti-Trump student protest.
In the days following the election, the Southern Poverty Law Center documented hundreds of incidents of harassment, primarily in K-12 schools. After accounts became pervasive on social media, reporters at The 74 began documenting the reports and spoke with students, parents and educators from around the country who recounted increased bullying in the past few weeks.
As far back as April, schools were reporting a new climate of harassment and fear. Two thirds of about 2,000 educators responding to a survey told the center that their students, especially Muslim and immigrant children, were fearful of the election results — and more than 40 percent said they had become hesitant to teach lessons about the 2016 presidential election.
In a few instances, student speech following the election led to school discipline, and even criminal charges. At Silverton High School in Oregon, a pro-Trump rally in the high school parking lot ended in suspensions after students used racist language toward Hispanic classmates. In a local news report, the principal said students have the right to express themselves but that threats aren’t acceptable. In another instance, while specifics weren’t released, a California student was disciplined for handing out “deportation” notices to minority students.
Frank LoMonte, executive director of the Washington-based Student Press Law Center, said context is important in determining whether student speech is protected by the First Amendment. (Disclosure: I previously worked at the Student Press Law Center.) Generally, he said, courts err on the side of protecting students who are victims of bullying, and the distinction is usually pretty clear between true political speech and a message intended to instill fear.
“A message like ‘Your parents are going to be deported’ is not a political argument,” LoMonte said. “That’s really intended, primarily, to cause the student to be scared and uncomfortable, and I think a judge would be highly unlikely to protect that speech if the school disciplined it.”
Still, he said, a chant like “Build the wall” could be protected speech, depending on the context.
“If students are doing that chant during a break period on the sidewalk outside the front of school, then that’s probably protected speech,” he said. “If they’re doing it in a confined space where the chant makes students feel targeted and unsafe, and the students aren’t free to leave that space, then that may cross the line into disruption or into invasion of the rights of others.”
The issue is complicated for teachers, too. In California, a high school history teacher was placed on paid leave after comparing Trump to Adolf Hitler, a move the teacher said “feels like we’re trying to squash free speech.”
In Kansas, an uproar followed one school district’s decision to forbid teachers from wearing safety pins on their clothes on the grounds that even a silent display of solidarity with LGBT and other vulnerable populations could disturb the classroom environment. The district argued that communication inside a classroom is “considered speech on behalf of the school district, and there is a limitation on that speech.”
LoMonte agreed that the courts generally have hesitated to grant K-12 teachers the same academic freedoms that college professors, for example, enjoy. “The prevailing legal view is that the teacher is a mouthpiece for the school,” he said, “and has to stay on the school’s dictated message or risk discipline.”
While “you can’t be letting fists fly in the hallways,” LoMonte said, schools should embrace students who have passionate opinions about politics.
“If it’s just a spirited exchange of opinions, by all means let’s embrace the teachable moment,” he said. “You can’t make schools a civics-free zone, and you can’t ban the discussion of divisive political topics if people are going to learn to be participatory citizens.”
Researcher and commentator Richard Kahlenberg, a senior fellow at the left-leaning Century Foundation, agreed that classroom discussions about American politics are an important part of creating engaged citizens — including “our egregious history” of slavery, segregation and the subjection of women, and how these groups fought back.
But he blamed K-12 schools for neglecting to prepare students to become responsible citizens — leading in part, he said, to Trump’s election. Educators have de-emphasized the democracy-promoting function of public education, he argued in a study released after the election.
Meanwhile, educators from across the country are calling for civility in schools. In the past few weeks, the National Association of School Psychologists has released a series of resources, including a guide to reinforce safe school environments and tips to help support marginalized students.
After a viral video from Michigan’s Royal Oak Middle School showed students chanting “Build the wall” in the cafeteria, the superintendent said in a statement that officials had “addressed this incident when it occurred.”
“In responding to this incident — indeed, in responding to this election — we need to hear each other’s stories, not slogans, we need to work towards understanding, not scoring points, and we need to find a way to move forward that respects and values each and every member of our community,” Shawn Lewis-Lakin said in the statement.
In New York, Education Commissioner MaryEllen Elia and Attorney General Eric Schneiderman sent a letter to districts with guidance on how to ensure that schools are “safe havens” free from discrimination, harassment and intimidation, after news reports identified “a number of disturbing incidents of bias and hate-based acts of bigotry, including vandalism, harassment, bullying and even violence across New York communities.”
“I encourage all schools and educators to consider how they can foster constructive dialogue among students in order to combat hate and create a culture of understanding and respect,” Schneiderman said in a news release.
Tinker offered a similar message.“I like to remind teachers and students that the First Amendment is really about respecting each other in our democracy,” she said. “The First Amendment is very important in doing that, but it it’s hard to tell students to respect each other when you have adult role models that are in such important positions that are going against that. I’m sorry to say that Donald Trump is one of those.”