The ACLU sent a letter to School Board Chairwoman Lucy S. Beauchamp recently asking that the board revoke the policy immediately.
The county School Board revised its code in May to prohibit spoken or written statements that “offend” based on “personal and physical characteristics or other characteristics of individuals or groups.”
Punishment for this action includes “corrective action up to and including expulsion.”
The revision came about after parents and school administrators complained last spring about students who sang a popular song during a school basketball game that included a word many find offensive.
“One of the problems with Prince William’s policy is that it fails to make a distinction between speech that may be offensive, but is protected by the Constitution, and speech that is threatening, which is not protected by the Constitution,” said Kent Willis, executive director of the ACLU of Virginia, based in Richmond.
Beauchamp said Monday that she feels comfortable with the revised code. Still, school Superintendent Edward L. Kelly said the matter has been forwarded to School Attorney Mary McGowan for review.
“We’ll wait and see where we go from there,” Kelly said.
The First Amendment allows for the right to free speech, including the use of offensive language. Language, including offensive language that is threatening, however, is not protected by the First Amendment, Willis said.
“The Supreme Court says you do not give up your right to free speech while in school,” Willis said.
Students still have the right to express their opinions “unless it is disruptive to the educational process,” Willis said.
School districts also can regulate against threatening language that he described as “fighting words,” Willis said.
“The key is to say that schools can teach that it’s inappropriate to use [offensive words] in any situation in school,” Willis said.
Making the use of those words as a punishable violation when they are not associated with a threat, however, is a freedom of speech violation, Willis said.
Willis gave Beauchamp a few examples of statements that could fall under the “offensive” category of the policy but are not threatening and therefore protected by the First Amendment.
Those statements were: “Democrats are stupid. You really need to lose a lot of weight. Cheerleaders make me sick.”
Governing boards must be careful when they attempt to regulate the use of language and separate it out from the use of language that can be threatening, Willis said.
“Sometimes local governments or school boards stumble into free-speech violations while attempting to accomplish admirable goals,” Willis said.
He said he thinks this is what happened in Prince William.
“They are concerned about disruptive behavior, such as bullying and taunting. They are concerned that it could escalate into violence,” Willis said. “We are supportive of schools with programs that teach students that they ought to communicate in decent ways.”
While the provision concerning offensive language does apply to all students, Beauchamp said it is mostly geared toward those in high school.
The ACLU describes the policy as “vague,” because it does not define what “offensive” language entails, Willis said.
“We have a lot of confidence in our principals. We have a really great group of high school principals this year,” Beauchamp said. “The principals know and understand that we are trying to teach each of our students what they can and can not say.
“We are counting on [the principals] not to overreact and use the policy against a student’s First Amendment rights.”
Beauchamp said that a principal who hears offensive language being used by a student will take it as a teaching opportunity to speak to the student about how such language can be hurtful. Such hurtful language can lead to violence, she said.
Willis said he feels confident in the ACLU’s stand on the matter since the Prince William policy was reviewed by nationally recognized First Amendment experts.
The ACLU is pursuing the matter because it wants to see it changed before other school districts adopt similar policies. “The key is to nip it in the bud,” Willis.
The Prince William policy is not the first to come under scrutiny of the ACLU of Virginia. It routinely analyzes local government ordinances and school board policies, Willis said.
While the organization hopes the Prince William County School Board voluntarily changes its policy, it would become involved in legal action, Willis said.
However, it is prepared to pursue the matter if a student who feels he has been adversely affected by the policy, for example a student who feels his First Amendment Rights has been violated, approaches the ACLU.
Kelly said that the administration has not received any complaints about the revised code.