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Pangle v. Bend-Lapine School District8/30/2000
controversial viewpoint must be balanced against our society's interest "in teaching the boundaries of socially appropriate behavior," id. at 681, the Court stated that
"it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the 'fundamental values necessary to the maintenance of a democratic political system' disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the 'work of the schools.' Tinker, 393 at 508[.] * * *
"The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers--and indeed the older students--demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy." Fraser, 478 US at 683 (emphasis added).
Ultimately, the Court held that the
"School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as [the student's] would undermine the school's basic educational mission." Id. at 685 (emphasis added).
So far as we can discern, the United States Supreme Court has not ruled on any case involving facts that are analogous this case. Although Tinker, Fraser, and Kuhlmeier are not factually on point, they instruct our analysis. First, as did the Court in each of its decisions, our analysis must engage with the unique set of factual circumstances present in this case. Also, we must decide the standard of review that applies to the trial court's ruling. We are mindful that Barcik suggests that we are to apply federal standards to section 1983 cases. When a federal district court upholds a restriction on speech as constitutional, the Ninth Circuit Court of Appeals conducts a de novo review unless the district court has made specific findings on disputed fact issues such as the credibility of witnesses. The latter are reviewed under a "clearly erroneous" standard.
The reason often given for such a standard of review is that First Amendment cases often involve mixed questions of fact and constitutional law, and the Ninth Circuit chooses to particularly scrutinize those cases in which the district court has upheld a restriction on the freedom of expression. See, e.g. Perry v. Los Angeles Police Dept., 121 F3d 1365 (9th Cir 1997), cert den 523 US 1047 (1998); Lovell v. Poway Unified School Dist., 90 F3d 367 (9th Cir 1996). Here, we adhere to the Ninth Circuit's standard of review.
Second, we observe that the United States Supreme Court did not hold in Tinker, Fraser and Kuhlmeier that the "protected" or "unprotected" content of the expression was the determinative issue. Rather, the Court determined whether a school district could discip
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