Update on DHS Student Suspension

Last week we reported on a Davis High School Student who was purportedly suspended from high school after delivering a speech on an incident where his Malcolm X poster was removed by the teacher. On the poster, the words “by any means necessary” were prominently displayed. The teacher reportedly removed the poster because she felt it conveyed a “terrorist message.”

One of the issues discussed on this blog has been whether this represents a first amendment issue. Some have suggested that there is no free speech rights of high school students.

However, according to conversations I had with a lawyer familiar with this case and the law in this respect, that is not true. I have since verified these claims with another lawyer who is also familiar with this aspect of law.

Basically high school students at assemblies have the same free speech rights as anyone else. The school is not required by any means to provide the forum for speech. But once they have created the forum and invited the student to speak they have no authority to censor what the student can or cannot say in front of the assembly.

There are of course limitations to that right, they are the same limitations that anyone else has, which is the “shouting fire in a crowded theater” exception and also the inciting a riot or posing a “clear and present danger” of causing an unsafe situation. The standard for that is basically if they gave a speech and no action results from said speech, they have not presented a clear and present danger. Also the speech cannot be obscene. However, these are not claims being made to substantiate the suspension.

The student was basically given three reasons for the suspension.

First, the claim was made that the student had deviated from the speech–that the student had essentially given an entirely different speech than the one submitted and that the student had self-censored in the submitted speech in order to engage in some sort of deception to get it approved. Given the law, it is not clear that the school even has the authority to take this step.

Second, the student was cited for basically publicly humiliating a teacher–this despite the fact that the student never mentioned the name of the teacher and the teacher essentially outed herself through her own behavior. The teacher left the assembly in tears and did not return.

The law here would dictate that the speech be actually slanderous and the speech, text of which we have, seems to fall well short of any slander.

Third, the student was cited for disrupting an assembly–this charge is completely inaccurate by any standard that would be used. There was no disruption that occurred.

What this means is that according to the law, the school did not have the authority to suspend this student for a speech he gave in front of the school. And we can construe the actions of the school as a violation of the student’s right to free speech–a right that contrary to some claims, the student does have under the law.

—Doug Paul Davis reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts

32 Comments

  1. Rich Rifkin

    I don’t in any way defend what the school administration (or the teacher) did in this case, per the facts as I understand them. However, I don’t agree with your legal conclusions. I don’t disagree because I think you (or the people you spoke with) are wrong in your understanding of the 1st Amendment, as it relates to students. Rather, I think you are wrong when it comes to a school’s rights to impose a punishment on a student, based on its own internal rules of conduct.

    “Second, the student was cited for basically publicly humiliating a teacher–this despite the fact that the student never mentioned the name of the teacher and the teacher essentially outed herself through her own behavior.”

    This is the heart of where I disagree with you, when you cite constitutional law. You and I might agree that the teacher should not have felt humiliated. Her crying over this tells me that she is not a mature person. But her sense of humiliation is completely subjective. It’s not really a matter of 1st Amendment rights.

    It appears that the vice principal believes that the student’s speech did humiliate the teacher. The v.p. must also believe that the reference to “a teacher” in the speech meant that the student was refering to this one particular teacher.

    You wrote: “He gave the assembly organizers two speeches to choose from–they chose this topic. The organizers were two students who were in charge of Human Relations Week plus the administrator who approved the topic.”

    Was the speech itself approved by a school official? Or was it simply the topic?

    If it was the topic and not the actual words, then the v.p. could conclude that the student was out of line. (I would not conclude that, but the v.p. might.)

    However, if the actual words of the speech — which I should repeat seem reasonable to me — were approved by a school official in advance, then the school administration would have no grounds whatsoever to stand on.

    “What this means is that according to the law, the school did not have the authority to suspend this student for a speech he gave in front of the school.”

    Legally, that is probably true. However, a school would be perfectly within its rights to punish — I don’t know about suspend — a student, if the school believed that a student (by whatever means) publicly humiliated a teacher.

    —-

    Tangentially related aside: When I was a student at Davis High, there was a male teacher who had the reputation of being overly friendly to his good-looking female students. Late in the school year my senior year, we had one of those assemblies where kids put on humorous skits, sing songs, etc., etc. Well, one of the skits got a huge laugh, when two girls, in their skit, referenced that particular teacher by name. The first said something like: “When I need a good grade in Mr. K***’s class, I just lean over his desk.” (As she said that, she demonstrated her cleavage before the assembled crowd.) Then the other girl responded: “Oh yeah… when I need a good grade in Mr. K***’s class, I just go down under his desk.” (She got on her knees and demonstrated ‘getting under a desk.’)

    I recall everyone laughing hysterically. However, no one was punished for that rather risque skit — the girls were cheerleaders — and to my knowledge, the teacher did not start bawling or even lodge a complaint. If there was a major difference in that case, it was that this skit was part of a larger routine where everyone was trying to be funny. But even then, this act stood out. And the other difference was that the teacher had a sense of humor.

    Finally, the teacher’s name was not K***.

  2. Rich Rifkin

    I don’t in any way defend what the school administration (or the teacher) did in this case, per the facts as I understand them. However, I don’t agree with your legal conclusions. I don’t disagree because I think you (or the people you spoke with) are wrong in your understanding of the 1st Amendment, as it relates to students. Rather, I think you are wrong when it comes to a school’s rights to impose a punishment on a student, based on its own internal rules of conduct.

    “Second, the student was cited for basically publicly humiliating a teacher–this despite the fact that the student never mentioned the name of the teacher and the teacher essentially outed herself through her own behavior.”

    This is the heart of where I disagree with you, when you cite constitutional law. You and I might agree that the teacher should not have felt humiliated. Her crying over this tells me that she is not a mature person. But her sense of humiliation is completely subjective. It’s not really a matter of 1st Amendment rights.

    It appears that the vice principal believes that the student’s speech did humiliate the teacher. The v.p. must also believe that the reference to “a teacher” in the speech meant that the student was refering to this one particular teacher.

    You wrote: “He gave the assembly organizers two speeches to choose from–they chose this topic. The organizers were two students who were in charge of Human Relations Week plus the administrator who approved the topic.”

    Was the speech itself approved by a school official? Or was it simply the topic?

    If it was the topic and not the actual words, then the v.p. could conclude that the student was out of line. (I would not conclude that, but the v.p. might.)

    However, if the actual words of the speech — which I should repeat seem reasonable to me — were approved by a school official in advance, then the school administration would have no grounds whatsoever to stand on.

    “What this means is that according to the law, the school did not have the authority to suspend this student for a speech he gave in front of the school.”

    Legally, that is probably true. However, a school would be perfectly within its rights to punish — I don’t know about suspend — a student, if the school believed that a student (by whatever means) publicly humiliated a teacher.

    —-

    Tangentially related aside: When I was a student at Davis High, there was a male teacher who had the reputation of being overly friendly to his good-looking female students. Late in the school year my senior year, we had one of those assemblies where kids put on humorous skits, sing songs, etc., etc. Well, one of the skits got a huge laugh, when two girls, in their skit, referenced that particular teacher by name. The first said something like: “When I need a good grade in Mr. K***’s class, I just lean over his desk.” (As she said that, she demonstrated her cleavage before the assembled crowd.) Then the other girl responded: “Oh yeah… when I need a good grade in Mr. K***’s class, I just go down under his desk.” (She got on her knees and demonstrated ‘getting under a desk.’)

    I recall everyone laughing hysterically. However, no one was punished for that rather risque skit — the girls were cheerleaders — and to my knowledge, the teacher did not start bawling or even lodge a complaint. If there was a major difference in that case, it was that this skit was part of a larger routine where everyone was trying to be funny. But even then, this act stood out. And the other difference was that the teacher had a sense of humor.

    Finally, the teacher’s name was not K***.

  3. Rich Rifkin

    I don’t in any way defend what the school administration (or the teacher) did in this case, per the facts as I understand them. However, I don’t agree with your legal conclusions. I don’t disagree because I think you (or the people you spoke with) are wrong in your understanding of the 1st Amendment, as it relates to students. Rather, I think you are wrong when it comes to a school’s rights to impose a punishment on a student, based on its own internal rules of conduct.

    “Second, the student was cited for basically publicly humiliating a teacher–this despite the fact that the student never mentioned the name of the teacher and the teacher essentially outed herself through her own behavior.”

    This is the heart of where I disagree with you, when you cite constitutional law. You and I might agree that the teacher should not have felt humiliated. Her crying over this tells me that she is not a mature person. But her sense of humiliation is completely subjective. It’s not really a matter of 1st Amendment rights.

    It appears that the vice principal believes that the student’s speech did humiliate the teacher. The v.p. must also believe that the reference to “a teacher” in the speech meant that the student was refering to this one particular teacher.

    You wrote: “He gave the assembly organizers two speeches to choose from–they chose this topic. The organizers were two students who were in charge of Human Relations Week plus the administrator who approved the topic.”

    Was the speech itself approved by a school official? Or was it simply the topic?

    If it was the topic and not the actual words, then the v.p. could conclude that the student was out of line. (I would not conclude that, but the v.p. might.)

    However, if the actual words of the speech — which I should repeat seem reasonable to me — were approved by a school official in advance, then the school administration would have no grounds whatsoever to stand on.

    “What this means is that according to the law, the school did not have the authority to suspend this student for a speech he gave in front of the school.”

    Legally, that is probably true. However, a school would be perfectly within its rights to punish — I don’t know about suspend — a student, if the school believed that a student (by whatever means) publicly humiliated a teacher.

    —-

    Tangentially related aside: When I was a student at Davis High, there was a male teacher who had the reputation of being overly friendly to his good-looking female students. Late in the school year my senior year, we had one of those assemblies where kids put on humorous skits, sing songs, etc., etc. Well, one of the skits got a huge laugh, when two girls, in their skit, referenced that particular teacher by name. The first said something like: “When I need a good grade in Mr. K***’s class, I just lean over his desk.” (As she said that, she demonstrated her cleavage before the assembled crowd.) Then the other girl responded: “Oh yeah… when I need a good grade in Mr. K***’s class, I just go down under his desk.” (She got on her knees and demonstrated ‘getting under a desk.’)

    I recall everyone laughing hysterically. However, no one was punished for that rather risque skit — the girls were cheerleaders — and to my knowledge, the teacher did not start bawling or even lodge a complaint. If there was a major difference in that case, it was that this skit was part of a larger routine where everyone was trying to be funny. But even then, this act stood out. And the other difference was that the teacher had a sense of humor.

    Finally, the teacher’s name was not K***.

  4. Rich Rifkin

    I don’t in any way defend what the school administration (or the teacher) did in this case, per the facts as I understand them. However, I don’t agree with your legal conclusions. I don’t disagree because I think you (or the people you spoke with) are wrong in your understanding of the 1st Amendment, as it relates to students. Rather, I think you are wrong when it comes to a school’s rights to impose a punishment on a student, based on its own internal rules of conduct.

    “Second, the student was cited for basically publicly humiliating a teacher–this despite the fact that the student never mentioned the name of the teacher and the teacher essentially outed herself through her own behavior.”

    This is the heart of where I disagree with you, when you cite constitutional law. You and I might agree that the teacher should not have felt humiliated. Her crying over this tells me that she is not a mature person. But her sense of humiliation is completely subjective. It’s not really a matter of 1st Amendment rights.

    It appears that the vice principal believes that the student’s speech did humiliate the teacher. The v.p. must also believe that the reference to “a teacher” in the speech meant that the student was refering to this one particular teacher.

    You wrote: “He gave the assembly organizers two speeches to choose from–they chose this topic. The organizers were two students who were in charge of Human Relations Week plus the administrator who approved the topic.”

    Was the speech itself approved by a school official? Or was it simply the topic?

    If it was the topic and not the actual words, then the v.p. could conclude that the student was out of line. (I would not conclude that, but the v.p. might.)

    However, if the actual words of the speech — which I should repeat seem reasonable to me — were approved by a school official in advance, then the school administration would have no grounds whatsoever to stand on.

    “What this means is that according to the law, the school did not have the authority to suspend this student for a speech he gave in front of the school.”

    Legally, that is probably true. However, a school would be perfectly within its rights to punish — I don’t know about suspend — a student, if the school believed that a student (by whatever means) publicly humiliated a teacher.

    —-

    Tangentially related aside: When I was a student at Davis High, there was a male teacher who had the reputation of being overly friendly to his good-looking female students. Late in the school year my senior year, we had one of those assemblies where kids put on humorous skits, sing songs, etc., etc. Well, one of the skits got a huge laugh, when two girls, in their skit, referenced that particular teacher by name. The first said something like: “When I need a good grade in Mr. K***’s class, I just lean over his desk.” (As she said that, she demonstrated her cleavage before the assembled crowd.) Then the other girl responded: “Oh yeah… when I need a good grade in Mr. K***’s class, I just go down under his desk.” (She got on her knees and demonstrated ‘getting under a desk.’)

    I recall everyone laughing hysterically. However, no one was punished for that rather risque skit — the girls were cheerleaders — and to my knowledge, the teacher did not start bawling or even lodge a complaint. If there was a major difference in that case, it was that this skit was part of a larger routine where everyone was trying to be funny. But even then, this act stood out. And the other difference was that the teacher had a sense of humor.

    Finally, the teacher’s name was not K***.

  5. anonymous

    Being an avid sailor without a LLD, let me opine as a “forecastle lawyer”. Since the student did give his speech, his 1st amendment rights were not violated. As to the suspension, my counsel agrees with Rifkin . There is a well-known US Supreme Court decision that gives school adiminstrations(up through HS) extremely wide discretion as to cause for suspension(remember, there were several issues cited by the HS administration). That’s not to say that the school administration was not
    overly punative and its reputation seriously damaged by this incident.

  6. anonymous

    Being an avid sailor without a LLD, let me opine as a “forecastle lawyer”. Since the student did give his speech, his 1st amendment rights were not violated. As to the suspension, my counsel agrees with Rifkin . There is a well-known US Supreme Court decision that gives school adiminstrations(up through HS) extremely wide discretion as to cause for suspension(remember, there were several issues cited by the HS administration). That’s not to say that the school administration was not
    overly punative and its reputation seriously damaged by this incident.

  7. anonymous

    Being an avid sailor without a LLD, let me opine as a “forecastle lawyer”. Since the student did give his speech, his 1st amendment rights were not violated. As to the suspension, my counsel agrees with Rifkin . There is a well-known US Supreme Court decision that gives school adiminstrations(up through HS) extremely wide discretion as to cause for suspension(remember, there were several issues cited by the HS administration). That’s not to say that the school administration was not
    overly punative and its reputation seriously damaged by this incident.

  8. anonymous

    Being an avid sailor without a LLD, let me opine as a “forecastle lawyer”. Since the student did give his speech, his 1st amendment rights were not violated. As to the suspension, my counsel agrees with Rifkin . There is a well-known US Supreme Court decision that gives school adiminstrations(up through HS) extremely wide discretion as to cause for suspension(remember, there were several issues cited by the HS administration). That’s not to say that the school administration was not
    overly punative and its reputation seriously damaged by this incident.

  9. Doug Paul Davis

    “Since the student did give his speech, his 1st amendment rights were not violated.”

    I don’t believe that is correct, giving punishment for protected speech would have to be a violation of first amendment rights for the first amendment to meet much.

    I understand the points that you guys are making, however, given who I have spoken with, I am fairly confident in what I have reported.

  10. Doug Paul Davis

    “Since the student did give his speech, his 1st amendment rights were not violated.”

    I don’t believe that is correct, giving punishment for protected speech would have to be a violation of first amendment rights for the first amendment to meet much.

    I understand the points that you guys are making, however, given who I have spoken with, I am fairly confident in what I have reported.

  11. Doug Paul Davis

    “Since the student did give his speech, his 1st amendment rights were not violated.”

    I don’t believe that is correct, giving punishment for protected speech would have to be a violation of first amendment rights for the first amendment to meet much.

    I understand the points that you guys are making, however, given who I have spoken with, I am fairly confident in what I have reported.

  12. Doug Paul Davis

    “Since the student did give his speech, his 1st amendment rights were not violated.”

    I don’t believe that is correct, giving punishment for protected speech would have to be a violation of first amendment rights for the first amendment to meet much.

    I understand the points that you guys are making, however, given who I have spoken with, I am fairly confident in what I have reported.

  13. Sharla

    There were actually two students suspended after the assembly. One that has been detailed on this blog already. Another one – a girl who said something like “being a feminist doesn’t make me a penis-hater…I like men.” Apparently using the word penis warranted a one day suspension.
    Another student, a disabled girl in a wheelchair, declined to give her speech about discrimination she has experienced, after the administration edited her speech, taking out her reference to the number of soldiers returning disabled from the Iraq war. The reference was thought to be too political.

    Fortunately, this is the talk of the campus; students are discussing what happened, are questioning what occurred, and are generally disgusted with the administrations actions. So not all is lost. Probably more “education” is happening as a result of the administration’s actions than if the assembly had occurred without interference.

  14. Sharla

    There were actually two students suspended after the assembly. One that has been detailed on this blog already. Another one – a girl who said something like “being a feminist doesn’t make me a penis-hater…I like men.” Apparently using the word penis warranted a one day suspension.
    Another student, a disabled girl in a wheelchair, declined to give her speech about discrimination she has experienced, after the administration edited her speech, taking out her reference to the number of soldiers returning disabled from the Iraq war. The reference was thought to be too political.

    Fortunately, this is the talk of the campus; students are discussing what happened, are questioning what occurred, and are generally disgusted with the administrations actions. So not all is lost. Probably more “education” is happening as a result of the administration’s actions than if the assembly had occurred without interference.

  15. Sharla

    There were actually two students suspended after the assembly. One that has been detailed on this blog already. Another one – a girl who said something like “being a feminist doesn’t make me a penis-hater…I like men.” Apparently using the word penis warranted a one day suspension.
    Another student, a disabled girl in a wheelchair, declined to give her speech about discrimination she has experienced, after the administration edited her speech, taking out her reference to the number of soldiers returning disabled from the Iraq war. The reference was thought to be too political.

    Fortunately, this is the talk of the campus; students are discussing what happened, are questioning what occurred, and are generally disgusted with the administrations actions. So not all is lost. Probably more “education” is happening as a result of the administration’s actions than if the assembly had occurred without interference.

  16. Sharla

    There were actually two students suspended after the assembly. One that has been detailed on this blog already. Another one – a girl who said something like “being a feminist doesn’t make me a penis-hater…I like men.” Apparently using the word penis warranted a one day suspension.
    Another student, a disabled girl in a wheelchair, declined to give her speech about discrimination she has experienced, after the administration edited her speech, taking out her reference to the number of soldiers returning disabled from the Iraq war. The reference was thought to be too political.

    Fortunately, this is the talk of the campus; students are discussing what happened, are questioning what occurred, and are generally disgusted with the administrations actions. So not all is lost. Probably more “education” is happening as a result of the administration’s actions than if the assembly had occurred without interference.

  17. 無名 - wu ming

    indeed, sharla. the school is inadvertantly teaching these students a valuable lesson about how people with unchallengable authority tend to try to silence those with whom they disagree. free speech is always under attack, and citizens must be prepared to stand up for their rights, if they ever want to have them in practice as well as theory.

    i mean, seriously, “too political”? we were given an open mic on the quad to debate the first gulf war, when i was in high school, and the comments on both sides were quite openly political, and yet no harm came of it. in fact, it was bob ghazenfari’s comments – “how many of you speaking against this war drove to school? if this is a war for oil, shouldn’t we stop using oil?” – that first got me thinking about the connection between my personal use of resources and broader national and global questions of war and geopolitics.

  18. 無名 - wu ming

    indeed, sharla. the school is inadvertantly teaching these students a valuable lesson about how people with unchallengable authority tend to try to silence those with whom they disagree. free speech is always under attack, and citizens must be prepared to stand up for their rights, if they ever want to have them in practice as well as theory.

    i mean, seriously, “too political”? we were given an open mic on the quad to debate the first gulf war, when i was in high school, and the comments on both sides were quite openly political, and yet no harm came of it. in fact, it was bob ghazenfari’s comments – “how many of you speaking against this war drove to school? if this is a war for oil, shouldn’t we stop using oil?” – that first got me thinking about the connection between my personal use of resources and broader national and global questions of war and geopolitics.

  19. 無名 - wu ming

    indeed, sharla. the school is inadvertantly teaching these students a valuable lesson about how people with unchallengable authority tend to try to silence those with whom they disagree. free speech is always under attack, and citizens must be prepared to stand up for their rights, if they ever want to have them in practice as well as theory.

    i mean, seriously, “too political”? we were given an open mic on the quad to debate the first gulf war, when i was in high school, and the comments on both sides were quite openly political, and yet no harm came of it. in fact, it was bob ghazenfari’s comments – “how many of you speaking against this war drove to school? if this is a war for oil, shouldn’t we stop using oil?” – that first got me thinking about the connection between my personal use of resources and broader national and global questions of war and geopolitics.

  20. 無名 - wu ming

    indeed, sharla. the school is inadvertantly teaching these students a valuable lesson about how people with unchallengable authority tend to try to silence those with whom they disagree. free speech is always under attack, and citizens must be prepared to stand up for their rights, if they ever want to have them in practice as well as theory.

    i mean, seriously, “too political”? we were given an open mic on the quad to debate the first gulf war, when i was in high school, and the comments on both sides were quite openly political, and yet no harm came of it. in fact, it was bob ghazenfari’s comments – “how many of you speaking against this war drove to school? if this is a war for oil, shouldn’t we stop using oil?” – that first got me thinking about the connection between my personal use of resources and broader national and global questions of war and geopolitics.

  21. davisite

    ……….reminds me of that scene in “Scent of a Woman” where the character played by Al Pacino lambasts the prestigious private boy’s school for its policies that are designed to turn out “minnows” rather than “men”.

  22. davisite

    ……….reminds me of that scene in “Scent of a Woman” where the character played by Al Pacino lambasts the prestigious private boy’s school for its policies that are designed to turn out “minnows” rather than “men”.

  23. davisite

    ……….reminds me of that scene in “Scent of a Woman” where the character played by Al Pacino lambasts the prestigious private boy’s school for its policies that are designed to turn out “minnows” rather than “men”.

  24. davisite

    ……….reminds me of that scene in “Scent of a Woman” where the character played by Al Pacino lambasts the prestigious private boy’s school for its policies that are designed to turn out “minnows” rather than “men”.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for