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3. Oklahoma City Public Schools Board of Education
When 5-year-old Cooper Barton showed up to kindergarten one day wearing a University of Michigan T-shirt, the die-hard Wolverines fan had no idea that his shirt—navy, with "The Big House" in bright gold letters—violated a section of the district's dress code prohibiting "Clothing bearing the names or emblems of all professional and collegiate athletic teams (with the exception of Oklahoma colleges and universities)." Upon discovering the offending T-shirt, the principal of Wilson Elementary instructed the kindergartener to go behind a tree on the playground and turn his shirt inside-out.
Although the U.S. Supreme Court has held that the First Amendment permits public school officials a significant degree of discretion in regulating the expression of students during school hours, such discretion is not absolute. School officials are not permitted, for example, to impose policies that purposely discriminate on the basis of viewpoint. In a letter to the Thomas Jefferson Center, the Oklahoma City Board of Education defended the policy, stating its purpose had nothing to do with promoting Oklahoma colleges over their counterparts in other states. Rather, the policy was born out of a concern for student safety. "It is a fact of life that gangs and gang colors are an unfortunate fact in America today ... The intent of the policy was to address this concern ... At the time of conception, no gangs reportedly employed the primary colors of our two state schools."
The eradication of gang violence in Oklahoma schools is without question a laudable goal, but it does not fully explain this provision of the school district's dress code. For one, the policy says nothing about permissible colors, only "names" and "emblems." Furthermore, Oklahoma has 27not two"state schools" with a color palate rivaling a jumbo box of Crayolas.
Public reaction to the incident was swift and overwhelming. Perhaps realizing that its treatment of Barton was likely unconstitutional, the school board quickly suspended enforcement of its "home teams only" policy. A task force was convened to develop a revised dress code, but as of May 2013nine months after the incident took place—no action has been taken and the policy remains on the books.
As for Cooper, he became something of a folk hero among Wolverine fans. When the University of Michigan heard about his ordeal, the Barton family was invited to a home football game where they were honored on the field at halftime before more than 100,000 fans. The school also presented Cooper with a custom-made two-sided Michigan T-shirt—just in case.
4. The North Carolina General Assembly
When North Carolina legislators enacted the School Violence Prevention Act in 2009, their intent was clear. "The sole purpose of this law," they said, "is to protect all children from bullying and harassment." Now, thanks to a 2012 amendment, that same act could be used to go after students accused of bullying their teachers or other school officials on the Internet.
The problem is twofold. First, the act treats the same speech differently depending on where it appears. A student who vents against a teacher in the cafeteria is unaffected by the law, but identical comments made online could subject him to discipline, including—depending on his age—fines or imprisonment. As noted by the ACLU of North Carolina: "students have been complaining about their teachers for as long as there have been students and teachers. They've been writing it on bathroom stalls or carving it into desks ... Just because they post it online doesn't make it suddenly any less protected."
The second problem has to do with the language of the act itself. The law, which went into effect December 1, 2012, prohibits online activity intended to "intimidate or torment" school employees. Legislators, however, neglected to define those terms, making it unclear what will violate the law. With no clear legal standard, the threat of arbitrary enforcement against students is significant. This last point is particularly troubling since the law expressly applies to statements made about school employees "whether true or false."
Teenagers are prone to making rash and unflattering statements about others, including classmates and teachers. The harmful effects of this trait are no doubt increased when the statements are posted online, reaching a much larger audience than before the advent of social media. But while young people may lack discretion when it comes to making such remarks, they are, by virtue of their age, also more susceptible to emotional injury when others direct hurtful comments toward them. Hence, one can understand laws directed at protecting children during this especially vulnerable age. By contrast, educators (hopefully) possess the maturity to react to student criticism with a tough skin and, if necessary, respond to most excesses within in the school environment. For those rare instances where a student engages in speech that is not protected by the First Amendment, existing laws are a sufficient deterrent. North Carolina state Sen. Tommy Tucker, the sponsor of the bill, sees it differently. Tucker suggests that the law is necessary to protect teachers from malicious students. "These children are bright and conniving," he says.
But what Tucker fails to appreciate is that the vagueness of the new law creates the very real possibility that students may be charged with a crime for speech that previously would have resulted in staying late after class. Moreover, the law discourages respect for free speech by teaching young people that government officials are above criticism.
5. The Idaho State Liquor Division,
In the United States, there are 18 "control states" in which the wholesale and/or retail sale of alcoholic beverages is subject to a state monopoly. One such body, the Idaho State Liquor Division, offers the following description of its mission: "to provide control over the importation, distribution, sale, and consumption of distilled spirits; to curtail intemperate use of beverage alcohol; and to responsibly optimize the net revenues to the citizens of Idaho." Notably missing from that statement is any mention of protecting consumers from words or images that some of them might find offensive. Yet that is exactly what happened when a Utah company, Ogden's Own Distillery, attempted to sell its award-winning "Five Wives Vodka" in Idaho. The liquor division refused to include Five Wives on its list of products available for sale at bars and in liquor shops after determining that the "concept" of the product was "offensive to a prominent segment of our population."