#whatsnext...what happened with #blacklivesmatter? • #blm is a global movement whose mission is to...

Milwaukee | Madison | Fox Valley - Green Bay | Waukesha County

www.vonbriesen.com

Andrew T. Phillips

Christine V. Hamiel

#WhatsNext

Legal Hot Topics

• Teacher Protection Act (Assembly Bill 693)

• Competitive bidding (SB 236)

• Preventing violence in schools (background checks, search and seizure,

parent notification, use of SROs, etc.)

• The opioid crisis and the impact on schools

• Data privacy and security

• Service/therapy dogs

• Listening devices (such as Angel Sense)

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#HashtagPhenomenon

• Has taken the nation by storm

– #BlackLivesMatter/#BLM

– #MAGA, #ImWithHer, #FeelTheBern

– #MeToo

– #TakeAKnee

– #Enough, #MarchForOurLives, #NationalSchoolWalkout

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What Happened with #BlackLivesMatter?

• #BLM is a global movement whose mission is to build local power and to

intervene in violence inflicted on Black communities, and specifically by law

enforcement.

• As a result of several high profile incidents of black lives taken by law

enforcement, a massive social media movement ensued.

• Organized protests across the nation in support of the movement.

• Violent protests also broke out.

• Confederate monuments, flags, and other symbols of slavery and segregation

were targeted.

• Students/staff wished to express their support or rejection of the movement.

4

How Did Districts Respond to

#BlackLivesMatter? • Panic!

• Students and staff alike posted their views on social media.

• Students and staff desired to express their support or opposition via t-shirts,

posters, etc.

• Students and staff sought to participate in protests.

• Students and staff relayed concerns about their own #BLM experiences.

• Districts struggled to respond to the competing concerns of respecting

students’ and staff members’ rights to expression and protest and

maintaining an educational environment.

• TRANSLATION: Panic to react to the latest #HashtagPhenomenon

5

What Happened with #MeToo?

• Worldwide movement to bring attention to sexual assault and sexual

harassment

• Workplace focused due to a number of high profile incidents of sexual

harassment

– Think: Harvey Weinstein, Matt Lauer, Bill O’Reilly, R. Kelly, Louis CK,

Woody Allen, Bill Cosby, Kevin Spacey………

• An expectation has begun to creep in that if a powerful man has ever created

a toxic environment for others, he will be found out and exposed.

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How Did Employers Respond to #MeToo?

• If an employer was faced with an allegation against an employee, there was

panic to ensure a process was in place to respond to the allegation,

investigations were conducted, and appropriate outcomes arrived at that met

a defined public relations vision.

• Employers without active complaints rushed to position themselves to

respond to the inevitable #MeToo allegation(s).

• Employers started to implement mandatory training for supervisors and

employees.

• School districts were especially on edge due to concerns involving both

students and staff.


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What happened with the “#MAGA,

#ImWithHer, #FeelTheBern” Movements?

• The 2016 election was the most polarizing in modern history, and was fueled

by a never before seen reliance on social media to spread political messages.

• The major party candidates self-created their own #hashtags, or #hashtags

grew out of grassroots efforts in support of a candidacy.

• Young people were politically motivated, as were various segments of the

population.

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How Did Employers Respond to the “#MAGA,

#ImWithHer, #FeelTheBern” Movements? • Employers were left reeling trying to find a happy medium in allowing

employees (and in the case of school districts, students) to engage in civil

discourse while maintaining harmony in the workplace/classroom.

• School districts were tasked with managing employee discussions in the

workplace and on social media.

• School districts were equally concerned with student political activity through

discussions, dress, social media, and other means of communicating the

message of their desired candidate.


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What Happened With #TakeAKnee?

• The protests began in the NFL after San Francisco 49ers quarterback Colin

Kaepernick sat and later kneeled during the anthem before preseason games

of 2016.

• Throughout the 2016 season, members of various NFL and other professional,

semi-pro, college, and high school sports teams (and officials) have engaged

in similar silent protests.

• 2017 NFL season was driven by the question: “Who’s kneeling this week?”

• On September 24, 2017, the NFL protests became more widespread when

over 200 players sat or kneeled in response to Donald Trump's calling for

owners to fire the protesting players.

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How Did Districts Respond to #TakeAKnee?

• School districts scurried to understand whether the act of taking a knee was

disruptive and could therefore be regulated.

• School districts questioned whether there was a student First Amendment

right to kneel.

• School districts questioned whether they could prohibit coaches, employees,

volunteers, administrators, officials, and community members from kneeling

without violating the First Amendment.

• School districts questioned whether they should have a policy applicable to

protesting, and kneeling specifically.


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What Happened With #Enough, #MarchForOurLives,

and #NationalSchoolWalkout?

• In the wake of the school shooting at Marjory Stoneman Douglas High School in

Parkland, Florida, nationwide protests were planned to remember the lives lost

and to protest gun violence.

• March 14 - #Enough – Students/Staff/Community “walked out” for 17 minutes,

purportedly in support of the lives lost in the Parkland shooting. Underlying this

protest was the call to action regarding gun violence.

• March 24 - #MarchForOurLives – Primarily organized by students, marches across

the country were planned to call for school safety and gun control.

– Spurred #50MilesMore – 50 mile march from Madison to Speaker Ryan’s

hometown to call out Ryan for blocking gun legislation reform and to demand

lawmakers take immediate action to curb gun violence.

• April 20 - #NationalSchoolWalkout – 19th Anniversary of Columbine – Walkout

planned to send a message to legislators that students will not tolerate inaction

on gun violence.

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How Did Districts Respond to #Enough,

#MarchForOurLives, and #NationalSchoolWalkout?

• Reactionary.

• Do we have to allow students and staff to walkout?

• Is there a safety concern with such protests?

• Do we create district sanctioned events?

• Should attendance/truancy policies apply?

• Can we create alternatives and prohibit student participation in student

organized marches and instead allow students to participate in district-

created events?


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WHAT’S THE DIFFERENCE?

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#HashtagPhenomenon = Reactionary

Response • Districts have not placed themselves in front of the #HashtagPhenomenon.

• Response is, by and large, reactionary.

• All of the movements mentioned seemingly came out of the blue and could

not be planned for………or could they?

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The Issues

• All of the noted movements share common questions and concerns raised by

District administrators and boards of education:

– Do students have rights, and if so, what are they?

– Do staff members have rights, and if so, what are they?

– How do we control and preserve the educational environment yet

recognize those rights?

– Are there safety concerns we should consider?

– Do we have to allow participation by community members on our school

grounds?

– Are guns the answer? [Well, maybe this is a topic for another day…]

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An Ever-So-Brief Legal Briefing.

• Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)

– Students were disciplined for wearing black armbands to protest the

Vietnam War

– Supreme Court said discipline was impermissible – District was attempting

to regulate pure speech as opposed to “regulation of the length of skirts

or the type of clothing”

– School could not ban the armbands without violating the students’ First

Amendment Rights

• Student speech was “nondisruptive, passive expression of a political

viewpoint”

– School district is required to show “facts which might reasonably have led

the school to forecast substantial disruption of or material interference

with school activities”

• Tinker creates the “substantial disruption” standard

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Ever-So-Brief Briefing, con’t.

• Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. (1986)

– Student disciplined for speech in support of student for class president

– SCOTUS found the student speech to be “offensively lewd and indecent”

– School’s interest in teaching students the boundaries of socially appropriate

behavior gave the school the right to determine “what manner of speech in

the [school] is appropriate”

– Vulgar speech and lewd conduct are wholly inconsistent with the fundamental

values of public school education, and therefore, school districts are free to

regulate.

• Fraser creates the “vulgar, offensive, lewd, and indecent” standard

– But be careful – of “ambiguously lewd speech intended to convey a political of

social message.

• B.H. v. Easton Area Sch. Dist., 725 F.3d 293, 310 (3d Cir. 2013), cert.

denied, 134 S. Ct. 1515 (2014)

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• Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988)

– HS journalism students intended to publish 2 stories on divorce and

teenage pregnancy in student newspaper

– School principal felt the subjects were inappropriate and removed them

– Supreme Court evaluated the type of forum and found the school

newspaper to be a “nonpublic forum” that was reserved as a supervised

learning experience not a publicly accessible medium

• DID NOT violate the students’ First Amendment rights

• Court says educators are entitled to exercise greater control over the type of

speech appearing in student-sponsored publications

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• Hazelwood, con’t.

– “Educators do not offend the First Amendment by exercising control over

the style and content of student speech. . .so long as their actions are

reasonably related to legitimate pedagogical concerns.”

– The paper was sponsored by the school, and so the school had a

legitimate pedagogical interest in preventing the publication of articles

that it deemed inappropriate and that might appear to be school-

sponsored

– Paper was not intended as a public forum where anyone could share their

views; rather the paper was a limited forum for journalism students.

• Hazelwood establishes the standard of regulation “reasonably related to

legitimate pedagogical concerns.”

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You did say “Ever-So-Brief,” right?

• Morse v. Frederick, 551 U.S. 393 (2007)

– “BONG HITS 4 JESUS” Banner

– Confiscation of banner and suspension of student did not violate the First

Amendment

– Schools may take steps to safeguard from speech that can reasonably be

regarded as encouraging illegal drug use

– Special characteristics of the school environment and governmental interest in

stopping drug abuse, allow schools to restrict student expression that they

reasonably regard as promoting such abuse

– Morse recognized that out-of-school speech by a student is subject to less

stringent regulation than in-school speech (for example, lewd speech may be

appropriately regulated if delivered within school, but not if delivered outside

of school)

• Morse provides justification for regulation of speech advocating illegal drug,

tobacco, and alcohol use.

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Brevity at its finest… • Nexus Requirement

• Discipline for off-campus conduct required a nexus between the conduct and the

school environment.

• Look to the effect on the school environment.

• Where there is a potential disruptive effect on the school environment, speech is

within the reach of school officials.

– When is speech sufficiently disruptive of the educational environment to

permit school intervention?

• Litmus Test:

– Students cannot be disciplined for off-campus speech that merely makes

administrators uncomfortable.

– School officials can discipline students when they make a legitimate effort to

disrupt the operations of the school.

– Showing disrespect to school officials while students are away from school is

the sort of discomfort school officials have to endure.

22

Framework for the Analysis

• Is the speech protected under the First Amendment? Specifically, is it meant

to convey a message?

– What did the student mean by the speech and what did other students

understand the speech to be?

• Is the speech within a category that schools may restrict, even absent a

showing of disruption?

– Is the speech vulgar, lewd, or profane?

– Does the speech promote illegal conduct?

• Is the speech school-sponsored?

• Has the speech caused, or is it reasonably likely to cause, a substantial

disruption?

• Does the speech infringe upon the rights of others?

23

ARE YOU READY FOR

#NATIONALSCHOOLWALKOUT?

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April 20, 2018 (Tomorrow)

• 19th Anniversary of the Columbine massacre

• A nationwide protest of U.S. leaders’ failure to pass laws that protect

students (and really all persons) from gun violence.

• Students are encouraged to walk out in protest at 10 a.m.

– When students head outside, they will first take part in 13 seconds of

silence to honor the 13 people killed at Columbine High School.

– The April 20 walkout is set to last from 10 a.m. until the end of the school

day.

• Purpose is to send a message to lawmakers that students will no longer

tolerate inaction on the issue.

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What Has Your District Done in the Wake of the

#HashtagPhenomenon to Prepare for Tomorrow?

• There are several walk outs planned throughout Wisconsin.

• Has your district developed a policy to respond to these #hashtag movements?

• Has your district considered how to respond to a student-led organization of

this walkout?

• Has your district considered how to respond to staff who wish to participate?

• Is there a safety concerns associated with this walkout?

• Will an additional law enforcement presence be necessary?

• Are community members rallying to be involved?

• TRANSLATION: Did your district have a proactive response in place when

students and/or staff indicated this would take place at your district?

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A PROACTIVE APPROACH

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• Tragedy is a tool for the living to gain wisdom, not a guide by which to live.

» - - Robert Kennedy

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Policy Development = Proactivity

• Policies serve as a framework by which issues are judged

• Policies provide guidance as to the District’s pre-determined response to a

situation

• Policies, by their nature, are a reflection of the community’s values

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Why Policies are Neglected

• Who has the time to deal with policies?

• Why do we need to handle something that hasn’t yet happened?

• Who is going to draft the policies?

30

Why the “Process” of “Policy” is Important

• Debate surrounding policy informs potential response to issues

• Addressing issues before they arise calms discontent in a charged

environment

• Policy sets expectations for board, staff, student, parent and community

conduct

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What are the takeways/tools?

• Preparedness is key.

• Beginning planning response efforts immediately (proactively, as opposed to

reactively).

• Initiate prevention-mitigation strategies – diffuse some of the concerns

proactively through policy development.

• Consider bringing all relevant and interested parties to the planning table.

School administration and leadership, teachers, student leaders, law

enforcement, etc.

• Disseminate information.

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What Needs To Be Addressed?

• Contact legal counsel, the questions are the same in every circumstance, but

asked differently...

– Do students have a right to participate?

– Are there privacy concerns involved?

– Are there safety issues to be considered?

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Positioning Your District to Respond to

#WhatsNext • Development of Policies

• Training administration on application

• Ensuring Board understands the policy and implications

• Relaying the policy to stakeholders (board, staff, students, community

members)

34

Policy Components

• Define acceptable behavior

• Identify process, if any, for participation

• Clearly state consequences

35

What About Expressive Conduct?

36

Schoenecker v. Koopman, 2:18-cv-555

• Filed April 9, 2018 by high school freshman against Principal of Markesan High

School

– Alleges he was told her could not wear clothing to school that depicts

firearms

– If plaintiff refused to wear alternative clothing or turn the

“inappropriate” clothing inside out, he would be required to attend

school in “the cubicle”

– Lawsuit alleges there have never been any incidents of significant

disruption based on a student’s clothing depicting firearms in a non-

threatening, non-violent manner.

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Schoenecker, con’t.

• Alleges Schoenecker was prohibited from wearing his t-shirts by Principal

Koopman in violation of his First Amendment rights and due process.

– Alleges that the school policy restricting clothing based on its depiction of

firearms in a non-violent, non-threatening manner, is a violation of

freedom of expression guaranteed by the First Amendment.

– Alleges that the policy restricting all depictions of firearms, regardless

whether the firearms are displayed in non-violent, non-threatening

manner is unconstitutionally overly broad.

– Alleges that the policy, by allowing an administrator to decide on a case-

by-case basis what clothing is “inappropriate,” is an unconstitutionally

vague restriction.

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Legal Implications of Schoenecker

• The Schoenecker case highlights the necessity for Districts to be proactive in

policy development.

• Brings to the forefront issues that administrators across the state are facing

with respect to student expression.

• To impose discipline based on the content of expressive conduct, a district

must be able to show a clear link between the expressive conduct and a

material and substantial disruption.

• Note that expression may be deeply offensive and still entitled to First

Amendment protection.

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Questions?

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Milwaukee | Madison | Fox Valley - Green Bay | Waukesha County

www.vonbriesen.com

Andy Phillips [email protected]

Chrissy Hamiel [email protected]

For more information, visit

our website:

www.vonbriesen.com

#whatsnext...what happened with #blacklivesmatter? • #blm is a global movement whose mission is to...

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