Add Edina High School to the list of political battlegrounds this year.

A lawsuit filed in early December against the high school by five students who claim the school violated their First Amendment rights has tensions in the Minneapolis suburb running high.

The controversy started on Nov. 9, when a handful of Edina students refused to stand during a playing of taps at a school assembly, the complaint says. After members of the Young Conservatives Club (YCC) — a student group not sponsored by the high school — criticized the protesters as disrespecting the flag, the school stepped in and shut the student group down, essentially restricted its speech.

That’s how the plaintiffs are framing their suit, at least. Erick Kaardal, who’s representing the five students in the suit, called the school’s actions “a clear case of discrimination against students with conservative beliefs,” and helped the students to file the lawsuit in district court. 

Among other things, the complaint alleges that by forcing YCC members to “respect” students kneeling in protest — and because the school and school board policies regarding student clubs are unnecessarily vague — Edina High School and its school district are violating the plaintiff’s free speech rights, as well as violating federal law, including the U.S. Flag Code.

But not everyone finds the situation so clear-cut, especially when it comes to public schools, which courts have typically given leeway regarding restricting student speech. “When speech by students amounts to threats or harassment, or intimidation, that becomes much more difficult [to protect],” said Raleigh Levine, a law professor at the Mitchell Hamline School of Law and a First Amendment expert. “Schools have to draw a line between speech that amounts to material and substantial disruption of the learning environment and speech that’s merely offensive.”

In public schools, context matters

When it comes to free speech in public schools, context matters. “Schools have to tread on what is often a very thin and blurry line between allowing students to exercise their First Amendment rights,” Levine said, “but also maintaining a learning environment.”

That’s because of the U.S. Supreme Court case Tinker v. Des Moines Independent Community School District, which ruled that schools can restrict student speech if it’s substantially affecting the learning environment of the school. “So, speech that keeps students from learning effectively or teachers from teaching effectively, essentially,” Levine said.

Though Edina Public Schools declined to comment because of the litigation, the Star Tribune reported that members of the YCC made disparaging remarks online, particularly toward immigrants. Edina High School Principal Andy Beaton also told the school’s newspaper that while the YCC has the right to voice their disagreement with students protesting, the school stepped in because the comments became “disrespectful.”

Levine said that means if the school can show that the YCC members were creating an atmosphere of harassment and intimidation at school through their speech, then the First Amendment claims likely won’t stick.

Nevertheless, Kaardal said that he thinks the YCC students have a strong case, particularly because of the federal Equal Access Act, which requires any school receiving federal aid to provide equal access to school facilities for any student group regardless of viewpoint.

But Levine said even that law is restricted by the Tinker case, which today remains the test for any free speech claims made in public schools. In the end, it’s all about who said what and how the school perceived it to affect the learning environment. “All of those facts change what is appropriate for the school to do,” she said.

‘A leg to stand on’

Kaardal said school officials also committed discrimination when they disbanded the YCC while allowing more liberal clubs to host protests on school grounds, and by ignoring disparaging remarks made by students against YCC members. In the complaint, for instance, Kaardal displays a screenshot of a student insulting YCC members on Twitter and calling them expletives.

It’s those allegations — along with complaints that the school district’s student club policies are too vague — that might stick, said Heidi Kitrosser, another First Amendment expert and a law professor for the University of Minnesota School of Law. “I think they have some argument that that policy is very broad, and I even think they have some argument that that policy has been implemented in a viewpoint-discriminatory way,” she said. “So, I do think they have a leg to stand on.”

That’ll be another aspect the courts will have to hash out, Kitrosser said. And while courts tend to provide schools with a decent amount of leeway when it comes to restricting speech, those restrictions still need to be applied in a nondiscriminatory way. “Were they discriminated against based on their political viewpoint, or alternatively, was the school just protecting school discipline?”

Levine said she also believes this case could help decide to what extent schools can punish student speech off campus and outside of school hours, such as when students interact with one another on social media.

But both Levine and Kitrosser agree that there are some claims in the complaint that will likely get dismissed, such as that the Edina Public School’s policy that students must respect kneeling protesters violates the U.S. Flag Code. “There’s a really clear Supreme Court precedent saying that schools have to tolerate students who don’t stand for the flag,” Kitrosser said. “That’s just a distraction.”