Surgically Removing Student Rights

The Boston Phoenix recently ran a minor article called Eraser Heads by Harvey Silverglate and James F. Tierney that documents the eerie deletion of student rights in the Emerson College Student Handbook. Emerson is a Boston liberal arts school that boasts a journalism legacy.

Emerson’s deletion of student rights from its handbook places the university at the vanguard of a larger, nation-wide campaign that neither began nor will likely end there. Lawyers specializing in advising colleges — including campus “general counsel,” who are reflexively more concerned with minimizing the schools’ legal liability than in protecting students’ rights — have been recommending for several years now that the once-ubiquitous listings of students’ rights be either modified or, worse, eliminated altogether. The main reason for this backlash is that courts in several states have suggested that schools must honor the promises of fairness and freedom they make to students in those handbooks.

Here in Massachusetts, in the 1999 case of Schaer v. Brandeis, in which a student sued the university, the Supreme Judicial Court based its ruling on a stated assumption that the guarantee of fair disciplinary hearings, found in the student handbook, could constitute an enforceable legal contract. (The student lost the case anyway, because the court concluded that Brandeis had provided him with a hearing that, in fact, lived up to the promise made in the handbook.)

Frightened by the thought of courts interpreting their handbooks as contracts, schools have started to make an end-run around the handbooks’ becoming legally binding. According to the Foundation for Individual Rights in Education — a nonpartisan organization that advocates for academic freedom and due process on campus [Ed. Note: and on which Silverglate serves as chair.] — no other schools have taken the radical step of Emerson’s administrators, though some have started down that road.

First, for instance, schools have started to explain that the rights are not contracts and are unenforceable; then they reserve the right to change the handbook language altogether. The University of New England in Biddeford, Maine, informs students that the school “reserves the right to change the policies, procedures, rules, regulations, and information in this handbook at any time.” Similarly, Creighton University, in Omaha, Nebraska, lists students’ rights but renders them meaningless by explaining that the school can “deviate from this handbook at any time.”

That schools have relied on this ploy is unsurprising. As a result of Schaer and similar court opinions around the country, campus administrators panicked over the possibility that words — and rights — were suddenly going to have real meaning in campus life. But lawyers and administrators, ever creative at figuring out how to avoid having to deliver on what one promises, started to backtrack.

Giving rights real meaning is what America used to stand for not too many years ago but this incident serves as an apt metaphor for the war this generation of politicians is waging on children and teens. This is not so much about liability as it is about inalienable responsibilities of American citizens to ensure that the promise of human rights and fair play in our form of government is not an empty sham.

Holy Moley! Bong Hits 4 Jesus!

Today, the Supreme Court is hearing arguments on a Freedom of Speech issue driven by our old friends Kenneth Starr and George "The Decider" Bush.

A high school student seeking nothing more than his fifteen seconds of local TV exposure created the nonsensical banner entitled, Bong Hits 4 Jesus. The principal of the school destroyed the sign. The issue is whether or not students have the right to free expression when the ideas expressed distress the school administrators. This is not about pornographic, salacious, or profane messages, this is about words.

In this case the prosecutors think that if the substance implied in the message is illegal then the words used as labels for the stuff that's illegal is illegal as well. Welcome to Bush World.

From Free-Speech Case Divides Bush and Religious Right by Linda Greenhouse, New York Times:

On the surface, Joseph Frederick’s dispute with his principal, Deborah Morse, at the Juneau-Douglas High School in Alaska five years ago appeared to have little if anything to do with religion — or perhaps with much of anything beyond a bored senior’s attitude and a harried administrator’s impatience.

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Mr. Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

Mr. Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, “to be meaningless and funny, in order to get on television.” Ms. Morse found no humor but plenty of meaning in the sign, recognizing “bong hits” as a slang reference to using marijuana. She demanded that he take the banner down. When he refused, she tore it down, ordered him to her office, and gave him a 10-day suspension.

Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Furthermore;

What galvanized most of the groups on Mr. Frederick’s side was the breadth of the arguments made on the other side. The solicitor general’s brief asserts that under the Supreme Court’s precedents, student speech “may be banned if it is inconsistent with a school’s basic educational mission.”

The Juneau School Board’s mission includes opposing illegal drug use, the administration’s brief continues, citing as evidence a 1994 federal law, the Safe and Drug-Free Schools and Communities Act, which requires that schools, as a condition of receiving federal money, must “convey a clear and consistent message” that using illegal drugs is “wrong and harmful.”

Mr. Starr’s main brief asserts that the court’s trilogy of cases “stands for the proposition that students have limited free speech rights balanced against the school district’s right to carry out its educational mission and to maintain discipline.” The brief argues that even if Ms. Morse applied that precept incorrectly to the facts of this case, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.

The religious groups were particularly alarmed by what they saw as the implication that school boards could define their “educational mission” as they wished and could suppress countervailing speech accordingly.

“Holy moly, look at this! To get drugs we can eliminate free speech in schools?” is how Robert A. Destro, a law professor at Catholic University, described his reaction to the briefs for the school board when the Liberty Legal Institute asked him to consider participating on the Mr. Frederick’s behalf. He quickly signed on.

Having worked closely with Republican administrations for years, Mr. Destro said he was hard pressed to understand the administration’s position. “My guess is they just hadn’t thought it through,” he said in an interview. “To the people who put them in office, they are making an incoherent statement.”

Incoherent? And that's a surprise?

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