Teacher requires student to speak during Day of Silence

     A Fremont Federation teacher may have infringed on a student’s First Amendment rights by refusing to acknowledge her desire to protest silently.
     The girl, a junior who did not want her name used, was trying to observe the Day of Silence, an April 13 event in which more than 150 students and staff on Fremont’s campus joined others across the country to support the rights of gay, lesbian, bisexual and transgender students.
     The First Amendment guarantees everyone in the United States the freedom of speech, religion and the press and the right to protest. The courts have also decided the First Amendment means teachers and other school officials cannot promote their religious views while at work.
     The student said she wanted to leave class early so she could help organize an assembly featuring a Holocaust survivor, but she did not want to break her silence. To communicate her request, she wrote a note to P. E. teacher Darlene Miller.
    Miller allegedly told the student that she would have to speak rather than write because she did not believe in what the Day of Silence stood for.
     “It made me feel stupid,” said the student. “It just made me feel bad because I did so well not talking and she made me break it.”
     The student said she believes the teacher was allowing her religion to interfere with her teaching. 
     Miller said that she always wants students to speak to her and not communicate through notes. Miller said her religion had little to do with the situation.
     “I feel that as an adult, I would have made the student talk regardless of my religion,” said Miller.
     Mandela Academy English teacher and Gay Straight Alliance Club adviser Kevin McNulty was alarmed to hear about the situation from the Green & Gold.
     GSA organized the Day of Silence for the three schools. McNulty said the incident could have been a violation of the student’s First Amendment rights.
     But he also said that it could have simply been a bad decision that all teachers could have made.
     “Teachers make hundreds if not thousands of split-second decision each day on the spot,” wrote McNulty via e-mail with the Green & Gold. “Some of those decisions are good, and some aren’t.”
     He referred to the 1969 Tinker v. Des Moines case, when the U.S. Supreme Court decided that students have the right to protest at school as long as it does not substantially disrupt class. The case involved students who silently protested the Vietnam War by wearing black armbands.
     McNulty explained that under the Tinker decision, schools and teachers can only stop student protests if their speech (or silence) would “materially and substantially” interfere with school operations. He said the Day of Silence activities do not qualify as that kind of interference.
     McNulty also mentioned California’s AB 537 which guarantees gay students protection from harassment in school.
     Miller declined a second interview with reporters to respond to McNulty’s comments.
     Lawyer Adam Goldstein works with the Student Press Law Center in Arlington, Va., and also said forcing a student to speak during a Day of Silence violated students’ free speech rights, even if religion were not involved.
     “Forcing someone to speak when they’re engaging in a silent form of protest is a First Amendment violation,” wrote Goldstein via e-mail.
     “It’s still a First Amendment issue even if religion isn’t the motivation; you have the right not to talk if you don’t want to talk,”
     McNulty said that he hoped the incident would “help us educate ourselves towards a safer, better school environment for everyone.”