Does Criminalizing ‘Disruption’ in Schools Violate Free Speech? 

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Police officers who patrol school hallways have the authority to punish, search and arrest students deemed “disruptive.” But when it comes to arresting students for so-called “disruption” — the most subjective of all school-based offenses, which can entail protests and even the filming of misbehaving school police officers — officers’ outsize power is potentially unconstitutional, argue the authors of a paper published in the Lewis & Clark Law Review.

Examining Masters v. Kentucky, a Kentucky appellate case dismissing a First Amendment challenge to an open-ended “school disruption” statute, authors Frank LoMonte and Anne Marie Tamburro argue that Kentucky and other states have statutes that expose students to criminal penalties based on a threshold lower than what the First Amendment requires to validate even a minor disciplinary sanction.

Leaving intact the nation’s “most aggressively broad” statute criminalizing certain speech and conduct directed toward school employees, the Masters case involved Johnathan Masters, an education graduate student who distributed surveys to secondary school students as part of his research. When the principal failed to distribute the surveys, Masters began arguing and asked the principal to “fight” — an offense that resulted in a misdemeanor violation of the school disruption statute.

The U.S. Supreme Court denied Masters’ petition to hear the case, putting an end to his argument that Kentucky’s statute was unconstitutionally vague and overbroad. Ending at the court of appeals, the case carries broad implications, even if Masters’ behavior was legitimately punishable.

“If the reasoning of Masters were to take hold elsewhere, it would be nearly impossible for speakers to bring successful constitutional challenges against school-disturbance laws,” write LoMonte, the director of University of Florida’s Brechner Center for Freedom of Information, and Tamburro, a UF law student.

The Masters case contrasts with the High Court’s landmark Tinker v Des Moines ruling that determined school authorities may not impose discipline for the content of speech without a showing that punishment “is necessary to avoid material and substantial interference with schoolwork or discipline.”

The 1968 Tinker ruling technically shifted substantial power away from school authorities. In practice, though, school authority figures regularly prevail in First Amendment cases, and courts have bolstered schools’ claims of “disruption,” even where “the risk seems speculative and the speech addresses matters of public concern,” the authors write.

“The existence of Tinker has done little to curtail hair-trigger disciplinary decisions by school administrators in the online-speech era, as momentary lapses in judgment result in disciplinary action because of the perceived power, reach and durability of the internet.”

The imposition of heavy-handed consequences for nonviolent behavior in schools isn’t just potentially unconstitutional; it also facilitates the school-to-prison pipeline, in which punishing students in educational settings can intensify their risk-of-arrest as adults.

Numerous studies have documented the racial disparities that define over-policing in schools.

Chalkbeat, the nonprofit education news platform, reported in 2020 that Black students are 2.5 times more likely than white students to be arrested in public schools in Indiana, for instance.

The offenses that warrant an arrest are wide-ranging, encompassing the refusal to stop texting in class to the participation in a protest. As more students engage in activism, the authors warn that the court’s ambivalence on “disruption” offenses could having a chilling effect on free speech.

“School is, in many ways, the perfect ‘trap for the unwary’ to make a misjudgment and end up in jail: Authority figures monitor students’ every move. They can search and question students with minimal justification. And the more rules schools enact, the more violations police can invoke as a basis for even more intrusive searching, interrogation, and detention.”

To access the full paper, click here.

Eva Herscowitz is a TCR Justice Reporting intern.

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