David Blount, Editor

The First Amendment: Speech, Expression and the Public Schools

The General Assembly in recent years has debated and approved bills that touch on First Amendment/free speech and expression issues. This legislation has addressed various forms of speech and expression, including spoken and written threats and harrassment, issues related to the Internet and school uniforms.

In 1994, the legislature overwhelmingly approved HB 481, which created a criminal penalty for certain verbal threats against school employees while on school property.

The following year, school divisions were authorized to require students to wear school uniforms with the passage of HB 2032 and two identical bills. The Board of Education (BOE) developed guidelines to assist school boards that wished to implement such a requirement (only a few have done so in limited circumstances). Also in 1995, the General Assembly approved HB 1614. This bill implemented Virginia’s “zero tolerance” law in compliance with the federal Gun-Free Schools Act of 1994.

Student recitation of the Pledge of Allegiance has had a recurring role in state policy-making discussions in recent years. In 1995, HJ 660 encouraged reciting of the Pledge of Allegiance during school functions. A year later, in 1996, through HB 433 and HB 1118, the legislature charged the BOE with developing guidelines on Constitutional rights and restrictions concerning the Pledge of Allegiance in the public schools. In 2001, SB 1331 was approved to require students to learn and demonstrate knowledge of the Pledge of Allegiance and to recite the Pledge each school day; school boards also must ensure that an American flag is in place in each school classroom. The bill had contained provisions for disciplining of students who refused to recite the Pledge, but those were deleted from the final bill.

As a result of recurring problems with and complaints from teachers about student conduct in classrooms, HB 1877 was approved in 1997. This measure gave teachers new initial authority to remove students from class for disruptive behavior, defined as “a violation of school board regulations governing student conduct that interrupts or obstructs the learning environment.” As a result of the ever-expanding use of computer technology in public schools, local school divisions were required to implement Acceptable Internet Use Policies (AIUP) through legislation approved in 1999. HB 1043 required policies that included provisions to prevent students from accessing material the school division deemed to be harmful to juveniles. Two years later, HB 1691 conformed state law to a federal requirement enacted in December 2000, to require school divisions to select a software technology to filter or block Internet access to child pornography and obscenity (as defined in the Code) through the school division’s computers.

The 2000 legislative session was particularly active with speech and expression-related issues. Amidst considerable debate during the 2000 legislative session, the General Assembly endorsed SB 209 to require, rather than authorize, the daily observance of a (one-minute) moment of silence in every public school classroom, during which students may meditate, pray, or reflect or engage in any other silent activity. The bill also directed the Attorney General to provide legal defense of the law, which was challenged in court shortly after its effective date. Also approved that year were HB 815, to require school boards to include prohibitions against profane or obscene language in its student code of conduct, and HB 1541, which called for school board policies stating that students are not required to convey or deliver any materials that endorse candidates for elective office or that advocate the passage or defeat of any referendum question or matter pending before school boards, local governing bodies and the General Assembly. The bill specifically stated that it “must not be construed to prohibit the discussion or use of political or issue-oriented materials as part of classroom discussions or projects or to prohibit the delivery of informational materials.” The legislature also approved HB 1126, which provides that employers who provide information about a person’s professional conduct or job performance to a prospective or current employer shall be immune from civil liability. Finally, HB 1524 created a crime of computer harassment, prohibiting use of a computer to communicate obscene or indecent language, or to make any obscene suggestion or proposal or threaten any illegal or immoral act with intent to coerce, intimidate, or harass.

In 2001, the General Assembly approved HB 197 and SB 847 strengthened the law concerning threats on school property to include those that are communicated in various ways, regardless of whether the object of the threat actually receives it.

For additional information, please see policy briefings on this website entitled Dress Codes and Uniforms; Citizenship, Character Education and Values; and Religion and the Public Schools.

None anticipated.

1994 – HB 481, HB 1098 (student-initiated prayer), HB 1274 (prayer/religious expression guidelines)

1995 – HB 1614; HB 2032, HB 2136 and SB 1054 (school uniforms); HJ 482 (study of Internet access); HJ 660

1996 – HB 8 (Internet filtering requirement), HB 433, HB 1118

1997 – HB 1624 (Internet filtering requirement), HB 1877

1998 – HB 1317 (Internet filtering requirement)

1999 – HB 748 (sexually explicit email), HB 1043, SB 1244 (law enforcement reporting of offenses to school officials)

2000 – HB 815, HB 1126, HB 1524, HB 1541, SB 209, HJ 239 (study of commercial promotional activities in high schools)

2001 – HB 197, HB 1691, HB 2395 (policies on commercial partnerships), HB 2841 (law enforcement reporting of charges to school officials), SB 847, SB 1331, HJ 661 (promotion of commercial partnerships)

Utah has amended its school uniform law to state that, if adopted by a local school district, the policy must remain in place for one year. It also provides provisions for students to “opt out” of the requirement. North Carolina is considering legislation directing local school boards to adopt dress code and appearance policies that require students to adhere to standards of dress that are compatible with the requirement of a good school environment. School boards in Louisiana and West Virginia now are required to establish student conduct policies that prohibit harassment, intimidation and bullying.

Penalties are established in Arkansas for using profane or insulting language toward a school employee and for communicating a death threat to a school employee or student. Mississippi has given classroom teachers the authority to remove disruptive students as needed. A new Florida law prohibits a student who has committed a felony offense against another student from attending the same school or riding on a school bus with the victim or the victim’s siblings.

In the current session of Congress, two House subcommittees are considering H.J. Resolution 54, which would recognize school division authority to establish a period of time for silent prayer or meditation or reflection, encouraging recitation of the Pledge of Allegiance, and refusing to discriminate against individuals or groups on account of their religious character or speech.

http://thomas.loc.gov/

http://www.ecs.org/ecsmain.asp?page=/html/issue.asp?issueid=145

http://www.sreb.org/main/LegAction/legrept/legreptindex.asp

http://www.le.state.ut.us

http://www.ncga.state.nc.us

Click here for a policy issue briefing on “The First Amendment: Speech, Expression and the Public Schools.”

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