Recently, a large hateful spray-painted message appeared overnight on the road nearby my home. It proclaimed in large bright yellow letters that a local high school student was a fag. The graffiti was deliberately placed in front of the driveway of the student’s grandmother. Upon seeing it, I felt shock and outrage and initiated a call to the local police department. The response was immediate, as a result of which, I like to think the victim’s grandmother was spared from viewing the message. Unfortunately, the paint could not be removed, so the only option was to tar over it. A large black scar on the road now serves as a daily reminder of how hurtful mindless freedom of speech can be.
Freedom of speech is protected by the First Amendment of the United States Constitution. A 1969 decision by the U.S. Supreme Court, Tinker v. Des Moines, ruled that schools, as agents of the state, could not abridge student’s free speech rights. However, it also held that student speech, which was likely to disrupt the operations of the school or interfere with the rights of others, was not protected under the First Amendment. Courts have continued to struggle with the issue of what speech is protected and what is not. Schools struggle with encouraging students to express themselves, on one hand, and with promoting tolerance and respect for others, on the other hand.
Increasingly, school codes of conduct do not condone bullying or sexual harassment. In the case of Zamecnik v. Indian Prairies School District, the court sided with the school’s decision to refuse to permit students to wear t-shirts saying “Be Happy Not Gay.” Controversy continues over messages related to abortion, religion, and homosexuality. Of interest, many religious conservatives who have traditionally sided with the authority of schools are now supporting free speech, whereas liberals are attempting to suppress statements such as those condemning homosexuality (Frederick v. Morse).
When a student’s writings or artwork become particularly violent or disturbing, schools often seek psychiatric consultation. Such was the case with the massacre at Virginia Tech. In cases where violence has actually erupted, it is always easier to predict in hindsight, and pundits are quick to say one should have known. If there is no prior history of violence, troublesome statements, or behavior, predicting that a student is in danger of acting on his violent fantasies is not an easy call to make. Multiple levels of decision making are involved in making a mental health referral starting with the teacher or classmate who voices concern about a student, assessment by a school guidance counselor, and the administrator who must make a call as to whether or not to suspend the student until a psychiatric assessment is completed. Once consensus is obtained, the mental health professional must make a risk assessment. Hospitals, in some cases, must make the call as to whether it is safe to release the student. Even when a dangerous person is safely committed, lawyers may get into the fray arguing for the patient’s liberty interests.
Families may be resentful of enforced interventions and may bring suit against schools. In the case of Demers v. Leominster Sch. Dept., a school became alarmed by the violent writings and drawings of a student with a history of violent and assaultive behavior and demanded that he undergo a psychiatric assessment. When he refused to do so, he was barred from returning to school. His family argued that he was unconstitutionally disciplined because his violent drawing was protected by the First Amendment. The federal district court held that the school acted appropriately because the drawing was a true threat, and thereby not entitled to Constitutional Protection. It also noted that, even if it had not been a true threat, the school’s interest in protecting students and staff justified the school’s decision to bar his return in light of his refusal to undergo a psychiatric evaluation. His parents attempted to argue that the school’s demand that the student undergo a psychiatric evaluation was in violation of his Constitutional right to privacy in as much as the psychiatrist would be providing information about their son to the school. The district court held that the psychiatric evaluation was not a violation of his privacy rights. It concluded that the actions taken by the school were justified and had balanced his right to free expression with the school’s interest in protecting the safety of students and staff.
Students today have many venues of self-expression ranging from body piercings, hairstyles, tattoos, provocative dress, and t-shirt messages, to more traditional sublimated messages through art, music, writing, and poetry. We appear to be in an era of “let it all hang out” that goes well beyond a bare midriff. Crudity, profanity, and misogynist statements pervade popular music, and films and videos are packed with raw and gratuitous violence as well as sexuality. It is no wonder that students exposed to these role models are confused as to the limits of self-expression. Those who cross the line may also be expressing their defiance of authority and exhibiting symptoms of a conduct disorder. Some students may end up in the reader’s office where you will have to do a balancing act weighing the limits of privacy and confidentiality while exploring the underpinnings of their rage and the risks they may pose to themselves or others.