This Piece Is Reposted With Permission
From time to time, K-12 News Network features the work of guest bloggers on education issues. This piece is reposted with permission.
Adam Juratovac is currently a football coach at Palo Alto high school (CA) and an attorney. He was a student-athlete, a 4-year Academic All-Conference selection from the University of Idaho, and an Arena Bowl XXIII Champion with the Spokane Shock. He is utilizing his athletic and legal background to build a support system for athletes of all levels through AthletesLTD.com. Follow him on Twitter: @JvacAttack.
Students in public schools are subject to searches without probable cause, having personal items seized, and are subject to punishment for speech that would normally be protected under the First Amendment. Generally, these lesser Constitutional rights are accepted and understood because the Government has a compelling interest in the educational system and more specifically, maintaining safety in schools. But schools can overreach. More rights may be restricted by the school than reasonable, and students do not shed all of their Constitutional rights, including freedom of expression, at the schoolhouse gate.
Earlier this week, the administration at Fort Bragg High School (Fort Bragg) prohibited the Mendocino High School (Mendo) boys and girls basketball team from playing in its tournament unless those student-athletes obeyed Fort Bragg’s restriction from wearing t-shirts printed with the words “I Can’t Breathe.” T-shirts with the same message were worn earlier this month by Lebron James, Jeremy Lin, Derrick Rose, and multiple NFL players who felt they had the right to express themselves and their political beliefs in a public forum. But Mendo’s situation is different. Mendo is a public high school in Northern California, those student-athletes are not playing professionally, they are not adults, and their Constitutional rights aren’t coextensive to people outside of a school setting. But is restricting student-athletes from stating “I Can’t Breathe” worth telling them that they can’t speak?
Schools have a right to restrict students speech and expression within the confines of a school setting but that power is not absolute. After originally being denied by the school, Supreme Court granted students the right wear black arm bands to express their disapproval of the Vietnam War. The Supreme Court later agreed with a school to when it refused to publish controversial articles in the school sponsored newspaper. But this current situation reads more like a law school Constitutional law essay prompt (read: lots of analysis) than what can be easily explained in an article. For example, does a weekend basketball tournament where other teams, fans, and family are invited constitute a non-public forum or a quasi-public forum? You’re able to restrict your own students’ expression but are you able to restrict another school? Does mere participation in a tournament show that host schools support or does the adversarial nature of athletic events negate any perceived imprimatur by the opposing team?
Let’s assume that Fort Bragg actually can meet all of these requirements which would lead them to prove the one thing that the courts have historically given much deference to the schools: Do the facts reasonably lead the Fort Bragg’s administration to believe that the t-shirts would lead to a substantial disruption of or material interference with school activities?
From the article cited just above:
“School district lawyer Patrick Wilson said Fort Bragg officials wanted to avoid the cost of a legal battle but remained concerned the shirts could cause a disruption in the community that’s still mourning the death of a sheriff’s deputy killed in the line of duty in March.”
The totality of the circumstances should be examined and based off of those facts we need to see whether the schools actions are reasonable based off of the perceived disruption. Both of Mendo’s teams wore the same “I Can’t Breathe” shirts at issue here against Fort Bragg on December 16, 2014. No incidents were cited. The coach of Mendo’s girls team stated that they wore the same shirts at two other tournaments without any problems from the tournaments or the fans of those tournaments.
I mean, there will always be a “disruption” in the community when the minority voices their political opinions but that is no reason to silence that voice. If that were the case, voicing your love for apples could be restricted when oranges are the topic of conversation. I understand why Fort Bragg would disagree with the speech but that doesn’t make the restriction constitutional.
When Lebron James of the Cleveland Cavaliers and Andrew Hawkins of the Cleveland Browns wore those same shirts, pressure was applied. But it wasn’t at the sporting event or even in person. This is where Fort Bragg’s decision starts to falter.
James’ and Hawkins’ received pushback from individuals and groups with opposing viewpoints who wanted to silence them. The athletes’ political expression was criticized by some who stated their desire to silence the expression. This is what makes the First Amendment so powerful and important. The First Amendment was created to protect the group that could so easily be silenced by the majority because that is only type worth protecting. Disapproval of the content of political expression is not a reason to censor it.
Fort Bragg not only prohibited Mendo’s teams from wearing the “I Can’t Breathe” t-shirt but it also restricted all spectators (adult or youth) from protesting the t-shirt ban citing safety reasons as the excuse. Fort Braggs’ restrictions were based on unsupported and unsubstantiated fears of physical violence among the spectators, parents. In my opinion, the fact that there was no disruption with the professional athletes, no disruption at the previous tournaments, and no disruption with the previous match up between Mendo and and Fort Bragg is indicative of the unreasonableness of Fort Bragg’s decision.
As a high school football coach, I would not restrict my players from expressing themselves about issues that they feel strongly about. I would never use my influence as a coach to hinder their right of free expression simply because I disagree with the message, but I would step in if their actions were a danger to themselves or the fans. The t-shirts worn by the Mendo team were neither. Had there been previous bad acts when the team wore the t-shirts, Fort Braggs action would be justified. Had this been the first time the Mendo teams were going to wear the shirts, the decision to restrict them would be more deferential. But with all of the facts I believe that Fort Bragg’s actions overreached and restricted First Amendment rights more than reasonably necessary given the acts they stated they wanted to prevent. Also, based on the previous instances of Mendo wearing the “I Can’t Breathe” t-shirts, there were no reasonably foreseeable disruptions. Thus, Fort Bragg’s administration not only overstepped their bounds with Mendo’s basketball team but also overreached by restricting any expressions displaying displeasure with their actions. The way that athletes play sports is often seen as an outlet and a way for people to express themselves, if Fort Bragg is allowed to restrict expression that it disagrees with, would it then be allowed to restrict the way athletes perform?
I believe that Fort Bragg’s decision restricts much more speech than reasonably necessary. I believe that Fort Bragg’s decision was made because they didn’t want any any disruption to the tournament. I believe that Fort Bragg unreasonably did so based on their own preferences without regard of the Constitutional rights guaranteed, albeit limited, by the student-athletes participating in the tournament. And I believe that political speech, no matter how unpopular, should be protected.