Mosinee and Gale-Ettrick-Trempealeau Schools Must Defend Student Speech

Friday, June 18, 2010

Wisconsin students have the right to free speech, even when it causes offense. In the recent examples of students wearing controversial t-shirts in Mosinee and Gale-Ettrick-Trempealeau schools, the ACLU of Wisconsin underscores the need for a greater understanding of student expression rights and clearer policies on discipline for disorderly conduct.

Wisconsin media are reporting on two recent controversies over student free speech and the confiscation of t-shirts by public school officials. In Mosinee, school officials confiscated “Stop Abuse” t-shirts designed to raise awareness of sexual assault. At the Gale-Ettrick-Trempealeau school in western Wisconsin, students could face discipline or even disorderly conduct charges after some wore t-shirts which depicted KKK figures playing in a band.

The ACLU of Wisconsin has pointed out in both controversies that while public school students’ right to expression is limited at school, high school students do not lose all their rights at the schoolyard gate. The landmark U.S. Supreme Court ruling in Tinker vs. Des Moines applies to these Wisconsin incidents. The Court ruled that officials may ban expression when it disrupts the educational environment. However fear of disruption or offending other students, staff or community members is not enough to justify censorship.

In media reports on both cases, Mosinee’s stop sexual assault t-shirts and G-E-T’s KKK band t-shirts were described by school officials as offensive. The ACLU understands that First Amendment protections include offensive speech. If it only protected speech everyone either liked or ignored, it would be irrelevant.

The G-E-T superintendent, according to one article, suggested that the school “…was a pretty hostile place to be if you were an African American student.” However, justifying censorship on those grounds requires some evidence. For instance, if the students who wore the controversial t-shirts had repeatedly confronted black students during the school year, then the school is right to respond to intimidation. However there is a difference between a single instance of expression and creating a hostile environment. This must be clear: students’ expression of their religious or political beliefs is constitutionally protected, while actions of harassment, violence, or intimidation are not protected speech.

The media has not reported all the facts and some school officials have not been entirely forthcoming (citing student privacy laws). G-E-T’s Superintendent Gunderson refused to show the t-shirts to one TV reporter. Based on media accounts, neither Mosinee nor G-E-T officials have provided evidence that the t-shirts caused disruption.

WEAU-TV 13 quotes one G-E-T student as saying that a fight broke out between some of the t-shirt wearing students and a few black students. It is unfortunate that the school is caught between protecting students’ privacy and expression rights. Students and school officials may have witnessed the controversial incident, but the community also has the right to know if students are being disciplined for their conduct or for their expression. The ACLU of Wisconsin is continuing its independent investigation.  In both controversies, school officials need to educate their students and respond to conflict. At G-E-T there is also apparently a need to work on race relations. The ACLU of Wisconsin has been developing programs to assist schools in such efforts.