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Incidents
Tim Gies was threatened with expulsion when he painted anti-war and anti-Bush slogans on his shirt and wore them to school while America was preparing for the war in Iraq. The matter was resolved before it could reach court and exemplifies the notion that everyone is allowed their own political expression as long as it does not have a disruptive effect on the school (« Stromberg », 1931). In another case, Bretton Barber who wore a T-shirt emblazoned with the words “International terrorist” next to an image of President Bush, was reprimanded, sued the school and won.
In another case, the plaintiff, Nicky Young, neither harmed anyone nor did she disrupt the school by wearing a T-shirt bearing the slogan “Barbie is a lesbian”. She received $30 000 in compensation because her school had sent her home for wearing the T-shirt. Another learner, Elliot Chambers, who was forbidden to wear his T-shirt advocating “Straight pride” to school, also won the court case. When Daniel Goergen threatened to go to court for being prohibited from wearing his shirt depicting the words “Abortion is homicide”, the school conceded. It was only in the Barber incident that the wearing of a T-shirt led to disruption in the school, as the class started to debate the topic and some learners started to wear opposing slogans. On applying the Tinker principle one would have expected the school to win the case. It seems that there is an awareness of learners’ human rights nowadays and that learners could fairly easily win a court case concerning freedom of expression and apparel. In yet another case, the T-shirt Tyler Harper wore to school on the school’s day of silence during a national campaign protesting discrimination against and harassment of homosexuals and transgender learners, proclaimed: “Homosexuality is shameful”. When told by the principal that his slogan was inflammatory, he responded: “How can you tell me I have to be tolerant of your views, but you can’t be tolerant of mine?” Although one could argue that his expression did not support the educational mission (or at least the educational purpose of the day), the right to freedom of expression cannot be limited only because it is an unpopular view. Furthermore, the wearing of this slogan on his T-shirt did not result in disruption of the school and Harper won the case. It seems that there was a tendency in court cases before 2000 to respect the right to freedom of artistic or symbolic freedom of expression in schools in the USA. In light of the value system that underpins the South African Constitution, one could reasonably expect local courts to show the same tolerance and follow the same trend (Juarez & Sulmers, 2005).
To summarise, the fact that learners as minors had no right to freedom of expression, was changed by the Tinker interpretation, which states that learners do not shed their right to freedom of expression at the school gate. Tinker (« Tinker », 1969, at 506) thus affirms the First Amendment right, also of learners as citizens of the country. In Fraser (« Fraser », 1986), the courts determined that the First Amendment right to freedom of expression, can be limited if it can be proved that the expression constitutes vulgar and obscene speech and does not support the educational mission of the school. Hazelwood (« Hazelwood », 1988) further balanced the right to freedom of expression of students, stating that school authorities have the right to limit learners’ right to freedom of expression in regard to school curricula (see § 5.2.18). Learners’ personal points of view are protected under the First Amendment and cannot be limited or violated “only” because such points of view are unpopular or in conflict with views of other stakeholders. These points of view can be limited if they are proved to be in conflict with the educational mission of the school.
Fischer, Schimmel and Stellman. (2000) point out that learners’ expressions can be limited in regard to curricular activities even if their views are not disruptive or obscene and do not interfere with rights of others. In such a case the learner will need to prove that the school’s limitation was unreasonable or unrelated to legitimate goals. In cases of school-sponsored extra-curricular activities, some courts used the Tinker and others the Hazelwood principles. Fischer et al. (2000) contend that school administrators would be constitutionally safer using the Tinker principle.
Before 1994 the rights of learners in South African schools did not receive much attention and the school management was almost beyond reproach (Alston, 2002). Furthermore, learners’ due process was largely ignored and schools extended their power beyond the school gates, often demanding unquestioning and unthinking obedience within their gates.
WE’RE OFF
In the discussion of the right to freedom of expression in this chapter the right was found to tend toward an absolute right that, in international instruments, is viewed as a core right in a democracy.
Although the right to freedom of expression is important in a democracy, it is, however, not absolute and can be limited. Due to the absence of a limitation clause in the USA Constitution, USA case law has developed principles to implement in order to balance the right in practice. The development of the right in the USA and South Africa was discussed in regard to its implementation in schools in the USA and in South Africa. USA case law has been characterised by a number of contradictory findings in this regard during the process of developing legal principles to limit the right to freedom of expression.
Although the modern South African Constitution contains detailed provisions in terms of the limitation of the right to freedom of expression, the practical application is often unclear, locally and in the USA.
At this point my journey toward understanding is gaining momentum, and I turn to the next chapter to discuss case law pertaining to the right to freedom of expression, in an attempt to determine the international development of case law in this regard.
Chapter one
ORIENTATION AND BACKGROUND: Invitation to undertake the journey
1.1 Introduction
1.2 Background
1.3 Aim
1.4 Rationale
1.5 Theoretical framework
1.6 Research design
1.7 Data analysis procedures
1.8 Limitations of the research
1.9 Significance of this study
1.10 Reliability and validity
1.11 Delimitation
1.12 Itinerary for the journey toward understanding
1.13 Summary
Chapter two
RESEARCH DESIGN AND METHODOLOGY: Planning the journey
2.1 Introduction
2.2 Research philosophy
2.3 Knowledge claim
2.4 Qualitative research
2.5 Working premises
2.6 Style of the research
2.7 Data collection
2.8 Sampling
2.9 Approval for the research
2.10 Data collection instruments
2.11 Ethical considerations
2.12 Methodological limitations
2.13 Data analysis
2.14 Summary of research design
2.15 Road signs as indicators on the journey
2.16 Planning finalised
Chapter three
HUMAN RIGHTS: The logistics for the journey
3.1 Introduction
3.2 Human rights
3.3 International human rights law
3.4 Limitation of human rights
3.5 Human rights in schools
3.6 Conclusion
Chapter four
FREEDOM OF EXPRESSION: The journey starts!
4.1 Introduction
4.2 The right to freedom of expression
4.3 Freedom of expression in international human rights instruments
4.4 Limiting the right to freedom of expression
4.5 The right to freedom of expression in schools
4.6 We’re off
Chapter five
CASE LAW: Speeding and appearing in court
5.1 Introduction
5.2 Case law in the USA
5.3 Case law in Europe
5.4 Case law in South Africa
5.5 Conclusion
Chapter six
DATA ANALYSIS: First glimpses of the destination
6.1 Introduction
6.2 Premise 1: Some learners have limited knowledge of their right to freedom of expression
6.3 Conclusion
Chapter seven
DATA ANALYSIS: Becoming acquainted with the environment
7.1 Introduction
7.2 Premise 2: Some learners do not know how to exercise their right to freedom of expression
7.3 Absolutising the right to freedom of expression
7.4 Limiting the right to freedom of expression
7.5 Conclusion
Chapter eight
DATA ANALYSIS: Crystallising the events of the journey
8.1 Introduction
8.2 The importance of filing a law suit
8.3 Absolutising the right to freedom of expression
8.4 Limiting the right to freedom of expression
8.5 Making sense of understanding
8.6 Conclusion
Chapter nine
CONCLUSIONS: Reflecting on the journey toward understanding
9.1 Introduction
9.2 Overview of my journey toward understanding
9.3 Reliability and validity
9.4 Main findings
9.5 Implications of findings
9.6 Significance of the study
9.7 Limitations of the study
9.8 Recommendations
9.9 Epilogue
References
