Readers of the blog know that I’m interested in the intersection between students’ Constitutional rights and school discipline. A recent story about a group of 8th graders who refused to take a photo with House speaker Paul Ryan, while ultimately relatively harmless, presents some fun questions for fellow Constitutional nerds out there.
It’s long been established that students “don’t shed their Constitutional rights at the schoolhouse door,” but several high-profile court cases have established limits on the free-speech rights of students at school. Most notably, Tinker v. Des Moines established the “Tinker standard,” which requires schools to determine whether student speech “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” In other words, if the speech does not constitute a substantial disruption to school operations, it is protected.
Choosing whether or not to have one’s picture taken with a prominent politician certainly represents symbolic political speech. These students’ choice is protected under the First Amendment, but did this choice represent a substantial disruption? Managing 150 students on a busy public street in a major metropolitan area is extremely challenging; was it not disruptive and potentially dangerous for students to choose to separate from the group to avoid this picture? (I’m playing devil’s advocate for a second here…)
On the other hand, if engaging in symbolic speech by taking photos with politicians is part of the trip, does the school not have a responsibility to the students to provide a safe alternative for those who choose not to engage in said speech? In that sense, the students can hardly be blamed for creating the disruption; the disruption only exists because the school failed to provide accommodations for students who did not wish to engage in political speech.
What other aspects of a trip to Washington DC could be considered forced political speech? Would a tour of the White House represent a de facto endorsement of a sitting president? Would a tour of the halls of Congress violate the free speech rights of a group of student anarchists? In that case, how would the school provide an equivalent educational experience for students who opt out? And to what extent would they be obligated to do so?
Ultimately, the students from New Jersey–whether they took the photo or not–walk away with a valuable civics lesson, and none of the thorny questions posed above will probably ever come to pass. That doesn’t mean we can’t have a little fun though.