LITTLE, LOIS MOD 5 EXAM CASE ANALYSIS TEMPLATE FOR STUDENT RIGHTS CASE ANALYSES Identify the section

of law in which the case falls by checking the box that applies to the case that is being analyzed.

School Attendance Student Records School Curriculum Freedom of Expression Student Appearance Search and Seizure
Given the box you checked, provide legal background on this section of law (you will be paraphrasing the lecture notes) and then narrow down to which test/s or legal principle/s should be applied to this case and describe why. This case will need to be analyzed by looking to the tests established in the decision of the US Supreme Court in the 1969 case of Tinker v. Des Moines Independent Community School District et al. However, it will also be taken a step further in analysis and be examined under the test established in the 1988 US Supreme Court case of Hazelwood School District v. Kuhlmeier et al (Cambron-McCabe, McCarthy and Thomas, 2009). The Tinker case dealt with freedom of expression when students wore black armbands to school as a way of protesting the Vietnam War and were suspended as a result. The students sued claiming that their right to Freedom of Speech, guaranteed by the national government in the First Amendment and extended by the 14th amendment to be guaranteed by the state government as well, had been violated by the action of the school. The United States Supreme Court, in finding for the students, established the following parameters for such cases:

First it has to be determined if the action in question constitutes expression

Is the conduct meant to communicate an idea If the action passes both of those tests, then it is considered speech and is subject to the following tests to determine if a violation of the first amendment right to free speech has been violated: Is it defamatory, obscene, vulgar or lewd? Did the speech cause a disruption? Is the school rule being uniformly applied or is there evidence of viewpoint discrimination? Is the action of the school related to legitimate pedagogical concerns? However, this case must also be examined through the ruling of the US Supreme Court in the Hazelwood case. This case added a criterion to the tests established in Tinker, by saying that in cases of school sponsored student speech, the school can censor actions which are considered (according to the Tinker case) to be speech, if the speech bears the schools

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imprimatur. In the case of the censored park bench painting at La Jolla High School, the issue will come down to whether or not the school bench painting was free student expression or if, since the school owns the bench and allows students to paint on them, if they were within their rights to white out the messages urging freedom for Iran under the auspices of the bench and the tradition attach the schools imprimatur to the action.

Lawyer for the parents on behalf of the child

Copy all parts or points of the test (make sure to include each and every component) and generate the arguments that the parents lawyer could make to win the case. The lawyer for the students/parents in this case will look exclusively to the precedent set in Tinker to argue the case. The lawyer will no doubt recall the statement made by the Supreme Court in their Tinker decision that students Do not leave their rights at the schoolhouse gate. Each part of the Tinker tests will be examined, and answered as follows: The painted message urging independence for Iran qualifies as speech since the conduct is expression The conduct is clearly designed to communicate an idea. Based upon these two criteria, the lawyer will argue that speech is the issue here, as determined in Tinker. The lawyer will then go on to apply the rest of the tests from Tinker as follows: The message was NOT defamatory, obscene, vulgar or lewd The message itself did NOT cause a disruption...in fact; it can be argued that the school paining over the message caused a disruption, not the speech of the students. The school rule is NOT being uniformly applied, as no other bench was painted over, and no parameters or prior restraints were given to the students when they were allowed to do the painting. The school simply decided it did not like this message or was afraid this particular message was going to cause a disruption...both of which fail the Tinker test, as viewpoint discrimination is evident and fear of disruption is not enough to censor an action of free expression. Blatant viewpoint discrimination abridges the First Amendment (Cambron-McCabe et al., 2009, p. 99). The schools action cannot be linked to legitimate pedagogical concerns since they allowed the students to paint the benches and since a Persian Club exists on campus. Furthermore the lawyer for the students/parents will argue that the censorship of the painted message cannot be justified since there was no significant evidence to conclude that a reasonable likelihood of substantial disorder was present, especially given the fact that there was no indication of similar disruptions occurring in the past. The schools actions must be based on fact, not intuition, and the facts needed in this case simply do not exist.

Lawyer for the school

Copy all parts or points of the test (make sure to include each and every component) and generate the arguments that the schools lawyer could

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make to win the case. The lawyer for the school will establish and argue that while Tinker set the precedent for free expression in schools (as described above), this case must be decided based upon the decision of the Court in Hazelwood because of the imprimatur of the school being associated with (1) allowing the students to paint the benches and (2) the fact that the benches are on school property and are used by people, not just the school, as a place to sit. It stands to reason then that the schools name and resources are clearly at the heart of the matter and as such, the school is within its right to censor the message under the auspices of the speech being school sponsored. The lawyer will further argue that whether or not a disruption erupts over the message is immaterial, since the speech, being school sponsored, can and should be heavily censored. The Hazelwood standard would apply here in that the speech, being considered school sponsored, does give the school a legitimate pedagogical interest in regulating the expression.

Your overall assessmentWho has the stronger case? Justify

your opinion always basing it on legal principles (so although it is your assessment, it should have some grounding in the law). The students will prevail in this case. The criteria established in Tinker (as described above) clearly define this expression as within the rights of the students, especially when it is considered that (1) the school ALLOWS the students to paint the benches and (2) no prior restraint was imposed upon the students before the painting took place. The school may claim that the message bears its imprimatur, (citing the Hazelwood case as described above), but the court will find that since no prior restrictions were given to the students before allowing them to express themselves with the paint, the school cannot then back track and refuse to allow such a message to have the schools name and resources associated with it. The school, in so doing, would be showing significant evidence of viewpoint discrimination, which is an out and out violation of the First Amendment. It also must be noted that the school likely created a significant disruption by censoring the message, since the response (from other students, presumably not involved in the original message) was swift and indicated a growing tension between the students and the school. The court will likely find that the only disruption that took place in this matter was a direct result of the actions of the school, thereby increasing the strength of the students case under Tinker. If the school had ideas about what would and would not be acceptable expression on the benches it should have been communicated to the students ahead of time, establishing prior restraints. They did not do so, and instead reacted to one message they did not like, depriving the students of their freedom of speech but also demonstrating viewpoint discrimination. The students deserve to and will prevail in this matter.

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REFERENCE Cambron-McCabe, N. H., McCarthy, M. M., & Thomas, S. B. (2009). Legal rights of teachers and students (2nd ed.). Boston: Pearson Education.