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This is the final issue of the Texas School Administrators’ Legal Digest, a publication that has served the Texas school community since 1984. It has been our mission to provide timely, relevant and accurate information to Texas educators about the legal issues that they confront on a daily basis. TSALD and its parent, Park Place Publications, will continue to do that, but no longer in this familiar print format. So it’s time to say goodbye. As I do so, I find myself thinking about that term—“the Texas school community.” What, exactly, does that mean?

There probably is something that we could call “the Texas school community,” but it is so large and diverse that the term “community” may be misplaced. A community is a place where each member has a sense of belonging. A community typically has a set of common core values. In a community, the members know each other, respect and support each other. In some broad sense, these attributes can be applied to Texas educators from El Paso to Texarkana, but to get a true sense of community it is better to look at each individual school. In a single school building, where teachers and parents and students interact with each other every day, you have a genuine opportunity to create a community. In a single school, people have common memories, victories, losses, struggles.

After almost 40 years of law practice, 36 of them almost exclusively devoted to school law, I hope for the day when the courts and our legislators recognize that each public school is a community. Moreover,each one is a community unlike any other. There are other communities that are open to all. There are other communities that serve lofty and important goals.There  are other communities that teach. There are other communities that care for children. But there is no other community that does these things with the scope and purpose of the public school.

That scope is universal, long lasting and broad. We serve every child, with no exclusions, and do so from as early as three until high school completion. We teach everything—from the three R’s to high level physics, from how to hold the lunch tray, to how to play the piccolo, from Dr. Seuss to Shakespeare.

That purpose is nothing less than to prepare the next generation to carry on our way of life, our values, our prosperity, our freedom and our responsibility. It prepares them not only as individuals, but also as members of a community, entrusted with the duty to care for that community as a whole.

It’s precisely because the public school is a unique community that we fight so much over it. Public schools are at ground zero in the culture wars because everyone on all sides of those wars understands what is at stake—the transmission of values from one generation to the next. We all want the public school to reflect our values. But we don’t agree on our values.

So we have considerable litigation. Much of the litigation involving public education could happen anywhere. People get injured in a bus accident, or slip and fall at Back to School night. The roof on the new school starts to leak after six months, and the architect, the builder, the sub-contractors and the school all point fingers at each other. A teacher is fired and believes it has something to do with his ethnicity or gender. A student is injured in gym class and the parents believe it was the teacher’s fault. There may be lawsuits over these incidents. Those lawsuits will be decided with the application of the law to the facts, and the nature of the school as a community will not figure much in the analysis. Nor should it.

But then you have litigation over issues that directly involve the transmission of values. You have litigation over the content of the curriculum, over student rights of free speech, over religion, overt the dividing line between parental rights and the authority of the school.

Let’s consider student free speech. I am convinced that if judges thought about each public school as a living organism, a special community, it would make a difference in how they rule on cases. Litigation over student free speech usually involves a student who says or writes something that someone in the school finds offensive, or disruptive or vulgar, or dangerous or threatening. The school imposes a disciplinary penalty, and the student sues, claiming an infringement of the constitutional right of free speech. With the advent of social media and the Internet, the power of expression is enhanced. A Facebook post can reach far more people than an underground newspaper from the 1960s.

The Supreme Court guides us on this issue in the landmark case of Tinker v. Des Moines. The clash of values in that case is easily understood. We value free expression, and want to
encourage kids to be thoughtful and involved citizens. Mary Beth Tinker chose to don a black armband to express her support for a truce in the War in Vietnam. We value this. But we also value respect for authority. The principal had flat out told the kids that anyone who wore a black armband to school would be suspended. We want to support our school administrators. Moreover, we also want to maintain order and decorum, environment conducive to learning.

Balancing those values, the Supreme Court held that students in school retained a right of free speech, even in school during school hours. But the school officials could restrict this expression, or punish it, if there was a reasonable forecast of a “material and substantial” disruption of school.

That decision was a product of its times, the 1960s. The oral argument in the case occurred shortly after the Democratic convention of 1968 in Chicago. All of us, including the justices on the High Court, had seen on TV the clash of police with student protesters who chanted, “The whole world is watching.” Tinker v. Des Moines must have looked to the Court like just another example of the forces of freedom vs. those of repression. The same drama had been playing out on college campuses all over America for most of the decade.

In the Tinker case, no one said anything about the school as community. Seven justices supported Tinker, because they valued free expression more than respect for authority. Justice Black saw Tinker’s armband as a slap in the face of authority figures. He dissented, and memorably predicted a “revolutionary era of permissiveness, fostered by the judiciary.”

It is now 46 years since the Tinker case. Perhaps it is time to set aside that entire paradigm of the clash of values, and look at this in a different way. What would happen if judges took to heart the notion that the public school is a living community? How would that affect the legal analysis? If they did that, they would focus less on the “material and substantial” disruption of classes, and focus instead on whether or not there has been damage to the relationships that form the foundation of community.

Consider, for example, the recent 5th Circuit decision of Bell v. Itawamba County School Board. This is the case in which an 18-year old student composed and recorded a rap in which he accused two coaches, identified by name, of sexual improprieties with students. The rap, available on Facebook and YouTube, was defamatory and vulgar, with suggestions of violence. The three-judge panel decided this case in favor of Mr. Bell, holding that his rap was constitutionally protected under the First Amendment. The majority opinion carefully applies well-established law to these facts. The student did all of this on his own time, away from school, using his own equipment. He did not play the rap at the school, did not directly threaten anyone, and there was not a major disruption of school activities. Therefore, following the Supreme Court’s decision in Tinker v. Des Moines, the rap was protected speech and the disciplinary penalty imposed by the school violated the student’s constitutional rights.

That’s what you get with a legalistic analysis that ignores the true nature of the public school. The public school is a community. In a community, relationships matter. The foundation of community is a network of healthy relationships. This is especially true in a school, the very purpose of which is to teach children. Those children need to feel safe, nurtured, encouraged. Any action of one member of the community that directly attacks, threatens, defames, intimidates, bullies, or harasses another member of the community does damage, not just to the intended target, but to the entire community.

That damage is not quantifiable, but it is real. It may not be “material and substantial” if one only looks at the operation of the school for that day. But the first cancer cell that invades the body does not cause a “material and substantial” disruption either. Not right away.

The dissenting opinion in the Bell case points us in the right direction. It cites an 8th Circuit decision that addressed off-campus expression by students. The court said that school administrators should have the authority to discipline students for off-campus expression if it was “reasonably foreseeable that the speech will reach the school community.S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. 2012) (emphasis added).

The Bell case will be reviewed by the full 5th Circuit, with oral argument scheduled for May 11th. Let’s hope the full panel recognizes the unique nature of the school community.

If the courts looked at schools as a living community, Mary Beth Tinker would still win her case. Some students and teachers found her armband offensive, but she did nothing to directly attack any member of the community. But Taylor Bell would lose his case, as would any student who bullies, harasses or threatens another member of the community in the guise of free speech.

Judges have not yet recognized the public school as a living community, but educators are becoming increasingly aware of it. You can see this in the increased emphasis on “Social and Emotional Learning” and “Restorative Discipline.” Our students will not be successful in the workplace or in life simply because they have mastered an academic curriculum that is more rigorous than in the past. Passing the STAAR tests does not indicate career readiness. What’s more important is the ability to play well with others. Whether a student ends up working at Dell Computers or Taco Bell one thing is certain: the student is going to have to operate in a sometimes stressful, sometimes high pressured environment, with a diverse group of co-workers and customers. To do that successfully, the student has to demonstrate social/ emotional skills– handling emotions, communicating thoughts and feelings effectively, taking responsibility for his or her own actions and words. In short, the student has to learn how to be a contributing member of the larger community. When we consider the “essential knowledge and skills” that kids—all kids—really need, these so-called “soft” skills rise to the top.

Perhaps this has not always been the case, but after all, the importance of many skills is changing quickly. Consider, for example, the skill of being able to do simple arithmetic problems in your head. Who has not had the experience of seeing a young person at a cash register (or whatever they are called these days) when the machine fails to indicate how much change is due? The kid has no clue. The older person usually helps out—“No… that’s too much. You owe me .57 cents. Take this dime back.”

It’s a handy skill to be able to calculate correct change in your head. But this skill is far less important than it used to be. Spelling correctly is a good skill to have, but less important when we have tech tools like Spellcheck available. There are numerous examples of skills that were essential to previous generations that are less important today.

However, the skill of living in a diverse community is all the more important. Our communities are far, far more diverse than they have ever been. America has always been a melting pot, but there are more ingredients in the stew today than ever before. Moreover, the speed of our lives, the omnipresence of technology, the lack of privacy, the ubiquitous advertising, the sheer noise of our culture in which silence must be sought out and savored—all of these things together put a premium on the cultivation of a network of healthy relationships that can form the foundation of community.

What it takes to live in a community cannot be learned in the family alone. The family is critical, of course, but it is not enough. Kids in our culture need to learn to live and work with people who are very different from their family members. This is why school—public school—remains essential. Educators are embracing Social and Emotional Learning and Restorative Discipline because they understand this. Let’s hope that the judges who rule on our cases get it also.

It’s tough to build a community in a diverse school system. One very successful school superintendent once told me, privately, that the key to making a lot of academic progress in a school system is a lack of diversity. “You can make a lot of progress,” he told me, “if everyone is the same. It doesn’t matter if they
are high income or low, it doesn’t matter what race. If everybody is pretty much the same, you can make a big difference.”

It is easier to build a sense of community in a private school, where everyone is there by choice. The same goes for charter schools, and magnet schools that parents seek out. Much of the push for single sex schools is coming from that desire for a “sameness.” Whatever you think of single-sex schools, or schools focused exclusively on Hispanic girls, or African American boys—it would be easier to create some sense of community in a place like that.

But take your typical neighborhood public school, serving every race, income level, religion, language group, and ability group. In that school, it’s hard to create a climate where every student feels that sense of belonging that is an essential hallmark of community. This is why it is so important that policy makers, legislators and judges support the neighborhood public school in that effort. As we close out the final issue of this publication, that is our hope.