Question
For approximately 20 years our school district has allowed rated R films to be shown, with parent permission. Furthermore, for approximately 15 years, our district has offered a Film and Literature class, which has featured numerous R-rated films. Pursuant to this policy, the district has approved this curriculum and has also purchased R-rated films to be shown in the class.
Recently, despite there being no objections from students or parents, the district has put a blanket ban on R-rated movies, despite the fact that there has been no policy change. Teachers feel this is censorship in the classroom by preventing us from teaching the curriculum they have already approved.
Answer
There is an interesting body of case law analyzing students’ rights of freedom and expression.See, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503, 506 (1969) (students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate”).
Schools, however, generally retain a good deal of latitude with respect to the content of the school curriculum.There is a federal case from Wisconsin based on a high school’s policy of not allowing R-rated films to be shown at schoolBorger by Borger v. Bisciglia, 888 F. Supp. 97 (E.D. Wis. 1995).
The court said that:
“school officials have abundant discretion to construct curriculum, and they only violate the First Amendment when they limit access to materials ‘for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials disapproval of the ideas involved.'”Id. at 100 (quoting Board of Ed. v. Pico, 457 U.S. 853, 879-80, 73 L. Ed. 2d 435, 102 S. Ct. 2799 (1982) (Blackmun, J. concurring)).
The court concluded that:
“An R-rating indicates that reasonable people could determine that high school students should not view the film. That “reasonableness” is all that is necessary in a high school setting. This is a constitutional exercise of school board discretion, and the court shall not enjoin the enforcement of policy.”Borger, 888 F. Supp. at 101.
It seems likely that the analysis with respect to the issue from the perspective of a teacher who wanted to show the films in class would be similar.
Although California has enacted statutes that provide greater protection for certain types of student speech than is required by the First Amendment, it is not clear that a California court would reach a different conclusion than the Borger court did.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
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