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Pangle v. Bend-Lapine School District8/30/2000
ystem, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school * * * are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the State. * * * [Students] may not be confined to the expression of those sentiments that are officially approved." Id. at 511.
Those principles are not limited to supervised discussion in the classroom; personal intercommunication among the students is both an inevitable part of attending school and an important part of the educational process. A student may express opinions at school, even on controversial subjects, so long as he or she does so without materially and substantially interfering with the requirements of appropriate discipline or colliding with the rights of others. Id. at 512-13.
When I examine the district's stated reasons for expelling Chris in light of Tinker, I do not see how we can sustain its action. According to Frickey, he expelled Chris because of vulgar and threatening language in the newspaper. Even assuming that vulgar language by itself could somehow constitutionally be a basis for disciplining a high school student, the vulgarity in the newspaper was no different from what is presently common in many other sources. As to the allegedly threatening language, Frickey did not claim that distributing the newspaper caused any disruption at the school, and he admitted that one thing that was apparently particularly disconcerting to teachers--listing home telephone numbers--did not violate any district policy or regulation. In addition, there is no evidence that Chris or anyone else engaged in, or planned or prepared to engage in, any of the suggested conduct that the majority quotes. The newspaper was not the equivalent of crying "fire" in a crowded theater.
Certainly some of the content of the newspaper, including portions of what Chris wrote, could be disconcerting to some readers, although the most disconcerting portions are apparently widely available on the Internet. Speech, however, is often disconcerting. People who believe strongly in what they say do not always speak in dulcet tones, and their voices sometimes grate on their hearers. That is the nature of the open society that the First Amendment protects; under Tinker, schools are part of that open society. Given the climate in the country in December 1965, when the students in Tinker wore their armbands, I suspect that their actions were at least as disconcerting as were Chris's actions in this case. The Supreme Court held, nevertheless, that the suspensions violated the students' rights under the First Amendment. I would hold, similarly, that the district violated Chris's rights and that he has a claim under section 1983. I dissent from the majority's contrary conclusion.
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