CMS is proposing its first free speech policy. Here’s a look inside.

Charlotte-Mecklenburg Schools is creating a district-wide student free speech policy following controversy last fall.

The first reading of the new policy was at the school board’s regular meeting May 12, but it won’t go into effect unless the board votes to approve it later this summer.

Controversies around student speech arose in CMS last fall, first after students at one of the district’s largest schools painted a “spirit rock” in response to the assassination of right-wing political media personality Charlie Kirk and later, when students at several schools protested the presence of U.S. Border Patrol in Charlotte during its “Operation Charlotte’s Web” in November.

CMS Board Vice Chair Dee Rankin is also chair of the board’s policy committee. He told The Charlotte Observer that the new policy’s creation wasn’t motivated by any one event, but he said last semester’s controversies spotlighted the need for a district-wide set of rules.

“No particular incident or school was the motivator, but I would say that they brought attention to a need or a gap,” he said. “It’s not to limit anything — just to make sure everything is done in decency and order, so students can express themselves in a positive manner but also, at the same time, maintain a safe learning environment.”

The draft outlines what kind of speech is protected versus restricted, but it also advises principals at each campus to create some school-specific guidelines. But some worry the gray area still leaves too much room for ambiguity.

Some parents are skeptical about the open-endedness of this portion of the policy. They said that while it could give cover to district leadership, it leaves school leaders vulnerable.

“If an issue arises, this approach seems to protect the board and superintendent while placing the responsibility on principals, who could ultimately face the consequences,” Sarah Dorsey, an Ardrey Kell parent told The Charlotte Observer on Monday. “If I were a principal, I’d probably remove the rock and deal with the backlash of disapproval rather than risk losing my job.”

What’s in the draft

The policy would apply to student speech “at school, at school-sponsored events or in the context of school-sponsored programming.” But it could also apply to speech online or on social media, the policy states, if it involves “threats, bullying or harassment of other students, failure to follow school rules regarding online school activities or breaches of school security devices.”

CMS already has policies against threats and bullying.

Principals should consult the district’s office of general counsel before issuing discipline related to any such speech though, the policy advises:

“Non-disruptive” speech that doesn’t infringe on the rights of other students should be assumed to be protected by the First Amendment. That includes religious and political speech. And, school officials must apply the policy impartially and fairly, regardless of the particular viewpoints students express.

“For example, while student political protests may be restricted if they create or are reasonably anticipated to create a substantial disruption of school activities, the political orientation that motivates the protest is irrelevant,” the draft policy states. “The consequences for such disruptions must be consistent regardless of political affiliations or views.”

Speech restrictions would fall into five main categories:

• Disruptive speech: The policy defines this as “substantial disruption of or material interference with school activities,” but doesn’t outline specific examples. It does say, however, that speech can’t be restricted due to a vague or unsupported fear that it will disrupt school or simply to avoid discomfort with a particular view.
• Speech that invades the rights of other students: This mainly applies to speech that may target certain students or student groups: In short, threats, bullying or harassment of other students is not protected under the First Amendment.
• Profane speech: Statements that are “lewd” or “vulgar” can be restricted, according to the policy. That includes profanity, sexual innuendo and “other forms of lewd conduct.”
• Promotion of illegal drug use: Schools can restrict speech that they can reasonably interpret as promoting illegal substance use. That doesn’t include, however, social or political commentary on drug laws or policies.
• School-sponsored speech: Under the policy, schools could restrict student speech in school-sponsored activities or publications, as long as “the restrictions are reasonably related to legitimate educational concerns.” For example, school staff can edit student articles in school newspapers, according to the policy.

What about ‘spirit rocks’?

The spirit rocks sits at the entrance of many CMS campuses and operate like billboards. They’re often painted with messages for students’ birthdays or messages of school spirit before football games.

In September, students at Ardrey Kell High School in south Charlotte painted their rock with a tribute to Kirk. Following Kirk’s death Sept. 10, it was painted with the message “Live like Kirk” along with “Freedom 1776” and a Bible verse.

Susan Nichols, the school’s principal, sent out a message Sept. 14 to families saying the tribute was “vandalism” and violated the CMS Code of Student Conduct. It also said law enforcement had been contacted and the school was cooperating with the investigation.

In October, however, CMS backtracked.

The school district sent a follow-up message, saying that the incident was not vandalism, it did not violate the district’s Code of Student Conduct and law enforcement was not contacted to conduct an investigation.

“The incident did cause a disruption within our school community,” the message said. “Therefore, Dr. Nichols responded by establishing guidelines for the use of the Spirit Rock.”

In December, parents of one of the students involved in the display sued CMS in federal court, claiming the schools had violated their daughter’s First Amendment rights.

The new free speech policy draft would require all school principals to adopt guidelines for what’s allowed in designated areas for expression on their campuses, including spirit rocks, within 60 days of the board adopting the policy.