Christian Children’s Free Expression in Government Schools
by Ed Taylor Vol. XVIII, No. 6, June/July 2005
Pastor, Amissville Baptist Church
What do you do if your children attend a public school and their religious views or the free expression thereof are challenged. Last election day I found out as my seventh grade daughter ran afoul of the teachers and administration at her school because she wore a pro-life t-shirt. Using this situation as a model, here are some valuable lessons in dealing with a society that is growing ever more secular.
The incident began as soon as my daughter got off the bus that day. One teacher saw the t-shirt and conferred with another teacher as well as the student handbook. I would note that this was not an “in-your-face” shirt, it tastefully made the case for being pro-life. My daughter was sent to the principal’s office and I was called to bring her another, more appropriate shirt to wear. I went to the school with another shirt. Once there, the principal, vice principal, my daughter, and I had a very cordial conversation. A brief synopsis of that conversation follows:
I was informed that even though they personally agreed with the sentiments of the shirt, the teachers found it offensive and feared that some of the children might also find it offensive. The principal stated that the policy forbade the wearing of offensive shirts. The analogy he gave was that the wearing of a Confederate flag was not permitted. Another reason for removing the shirt was that it was a politically sensitive day due to the close election and the fact that abortion was one of the key issues. In addition, the principal also stated that the courts have mandated the separation of church and state and he was charged with keeping religion out of the school. I did mention that the First Amendment only prohibits Congress from making laws restricting or prohibiting religion, however, that was a debate for another day.
The vice principal then stated that perhaps the shirt would be permissible at the high school, however, it was not permissible in the younger grades. Her example was that a kindergarten age child might see the shirt and comment that it was a pretty picture of a baby. When told what the shirt really meant, it might overly disturb them. Or, they may go home and ask their parents about abortion and the parents may not know how to handle it. (It would seem to me the kindergartners have more intelligence than many adults because they understand that the killing of human life, even in the womb, is wrong while many adults have tried to rationalize it into being a constitutional right.)
Given these or similar circumstances, what can be done? First, understand that the initial conversation with staff or administration is not going to change their minds. Most, though not all, school personnel are nice people trying to keep their jobs by doing what someone above them has told them to do. Regardless of how you feel, do not make any kind of threat (or promise), raise your voice, or behave in any manner other than cooperative and Christlike. Keep in mind that this is only the first fusillade.
The second step is to request a copy of the applicable policy from either the student handbook or the school policy manual. Study it carefully to discover if the school followed their own policy, if the policy is too vague, does it conflict with court rulings (case law), or are there any other problems with the policy.
In our case the dress code generically stated, “Clothing of any kind with inappropriate messages displayed or implied will not be allowed at school.” This is a very broad statement. For example, a University of Virginia fan might find a Virginia Tech shirt to be offensive. This may seem trivial, but without a clear definition anything may be offensive to someone. On the other hand, the broadness of the statement may prohibit any enforcement. The school policy manual stated, “Students are expected to dress in a way that does not interfere with the orderly process of instruction.” In this case the instruction day had not begun so no disruption was even possible.
The third step is to discover what the law says. Though I contacted several Christian attorneys, the most helpful were at the Thomas Moore Center for Law and Justice. They provided me with an example of case law that works in a Christian’s favor. In Tinker vs. Des Moines Independent School District, 393 U. S. 503, 506, where the Supreme Court of the United States clearly stated that public school students do not lose their constitutional rights of freedom of speech or expression once they pass through the doors of the school, Tinker, 393 U. S, at 511 states:
“In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.”
In addition, Tinker, 393 U. S. at 512-12 states:
“A student’s rights [of free speech and expression] . . . do not embrace merely the classroom hours. When he is the cafeteria, or on the playing field or on the campus during the authorized hours, he may express his opinions, even on controversial subjects . . . if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason - whether it stems from time, place or type of behavior - materially disrupts classwork or involves substantial disorder or invasion of the rights of others is of course, not immunized by the constitutional guarantee of freedom of speech.”
Therefore, in order for a public school to justify prohibition of one’s freedom of speech and expression, the public school, according to the Supreme Court:
“must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained. (Tinker, 393 U. S. at 509)
Legally, the bottom line is whether or not the school proves that the expression of free speech “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” It should be noted that if you try to challenge the court-manufactured separation of church and state clause of the First Amendment you stand a greater chance of losing. Instead, use the free speech clause of the First Amendment.
The next step is to find out when the school board meets in public session as well as their rules for public comment. Usually one must be recognized for comment, names of school personnel cannot be used in open session when registering a verbal complaint, and a time limit is imposed. In our case, all public comment is limited to two minutes. Because of the time limit and the need to use names to explain exactly who did what, prepare a brief. In this brief write out the facts exactly. Do not exaggerate or interject personal comments. Do not make personal accusations regarding the character of school personnel or their perceived behavior. For example, do not state that a particular staff member has never liked your child. While this may be true, you cannot prove it and it will only serve to make the administration believe that this is some kind of personal vendetta on your part. Then include a synopsis of relevant case law you have received from an attorney or legal organization and how it applies in this situation. Next, write down exactly what you want the outcome to be and include a time frame within which it is to be accomplished. If you are prepared to take the matter to court, state that in your conclusion. Thank them for their time and consideration in the matter. Make enough copies to give to all board members, the superintendent, the principle, and a few extra.
Finally, go to the school board meeting and present your brief to the board. Obviously, everything you wish to say cannot be presented verbally. First, give your copies to the board. In a brief statement tell the board that your child’s right of free speech was violated as detailed in the brief you have provided. Briefly state your desired outcome and add that you will pursue the matter further if need be (provided you are willing to do so). Thank them for the job they are doing and for their time in this matter. Inform them that you are available should they have any questions or wish to pursue the matter further in closed session. Many organizations, including the Thomas Moore Center, will provide any further legal action necessary free of charge if your religious freedoms have truly been violated.
Oh, how did our case turn out? We received two letters of apology and there have been no further difficulties.