8/13/2003

Teaching Public Schools the ABCs of the Constitution — Part II

Students' Free Speech Rights in Public Schools


(Read Part I: The Rights of Religious Student Groups in Public Schools

(Read Part III: Religious Expression at Graduation Ceremonies and Assemblies)

(Read Part IV: Non-Student Expression on School Property

(Read Part V: Teachers’ Rights in Public Education)

(Read Part VI: "Zero Tolerance" Policies and School Searches)

(Read The Rutherford Institute's legal memorandum to public school superintendents) (PDF)


The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” The freedom to express a particular opinion, whether verbally, by disseminating literature, or even conveying a message on one’s clothing “strikes at the very core of First Amendment values.” The First Amendment’s prohibition on laws restricting speech has been interpreted to also apply, through the Fourteenth Amendment, to actions of state and local governments, including even public school officials. Moreover, the constitutional protection of the rights of “persons” applies without regard to the speaker’s age. Thus, the Supreme Court has emphatically ruled that the Constitution guarantees each student's freedom of speech and expression in the public schools. However, because of the peculiar setting and needs of the school environment, the Supreme Court has permitted more restrictions on student speech than would be permitted outside that context. The following is an overview of the protections afforded student speech by the First Amendment.


The General Rule: Student Speech is Protected by the First Amendment

The public schools are charged with teachings students not only reading, writing and arithmetic, but also with providing students with a working knowledge of their Constitution and the freedoms they uniquely possess as U.S. citizens. The Supreme Court has often referred to the public schools as a “marketplace of ideas” where the protections of the First Amendment are particularly important. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

The seminal case involving student free speech rights is Tinker v. Des Moines Independent School District, decided by the Supreme Court in 1969. The Tinker case arose during the height of the Vietnam war when a group of public high school and elementary school students were suspended for wearing black arm bands to school to protest the war. School officials discovered the plan prior to the day the students intended to wear the arm bands and forbade the students from wearing them, ostensibly fearing that the demonstration would cause a disturbance. The students defied this prohibition, and, although only a few students objected to the arm bands, school officials suspended them.

The Supreme Court held that the suspensions violated the students’ First Amendment rights. The Court first clarified that public school students, no less than any other citizens, were entitled to the protections of the First Amendment. “It can hardly be argued that either teachers or students shed their constitutional rights to free speech or expression at the schoolhouse gate.” Tinker v. Des Moines, 503 U.S. 506. The Court rejected school officials’ claims that the prohibitions on the arm bands were permissible because of the possibility that they might cause a disruption, noting that although a few students made hostile remarks about the armbands outside the classrooms, there were no threats or acts of violence that disrupted the learning environment. The Court held that absent such evidence of disruption or interference with the rights of others, the suspensions violated the First Amendment.


Exceptions to the General Rule: Student Speech That May be Restricted:

Tinker was the high water mark for student First Amendment rights. In the decades since Tinker was decided, decisions by the Supreme Court and lower courts have chipped away at Tinker’s broad protection of student speech. Nevertheless, these exceptions have not swallowed Tinker’s general rule. Outside the few instances listed below, the First Amendment continues to provide protection for students who wish to express their views, even on controversial topics like war, religion, sexuality and abortion. [NOTE: Although this article does not deal specifically with student religious speech, the general principles expressed here apply regardless of the student’s message. For a discussion focusing on student religious speech see next week’s article.]

Student speech may be suppressed only if the speech: (1) materially and substantially interferes with the requirements of appropriate discipline in the operation of the schools; (2) invades or collides with the rights of others; (3) is vulgar, lewd, obscene, or plainly offensive; or (4) is school-sponsored. Additionally, as with free speech rights in any context, school officials may impose reasonable time, place and manner restrictions on student speech.


(1) Speech Which Materially Interferes With Appropriate Discipline

The first limitations on the general rule of First Amendment protection for student speech stem from the Tinker decision itself. In Tinker, the Court acknowledged that school officials could restrict student speech if it “materially and substantially interferes with the requirements of appropriate discipline in the operation of the schools.” Thus, where student speech causes a substantial disturbance or inhibits teachers’ abilities to teach students, school officials may restrict a student’s speech. Nevertheless, as the Tinker decision illustrates, schools must offer more than mere speculation that a disturbance will occur as evidence to justify any interference with student speech. The First Amendment prohibits schools from banning student expression simply “because of an undifferentiated fear or apprehension of disturbance.” School officials also must show more than a desire to avoid possible “discomfort and unpleasantness” accompanying a viewpoint. Finally, as the Tinker decision also highlights, a few hostile comments by students who disapprove of the student speaker’s message is insufficient justification for the suppression of the student’s speech.

An increasingly recurring example of this type of restriction on student speech is the Confederate flag cases. Federal appeals courts have recently found school policies banning the wearing or possession of confederate flags or symbols to be constitutional. In West v. Derby, the Tenth Circuit held that a school policy prohibiting Confederate flags and paraphernalia was constitutional. Stressing the history of racial tension in the district, the court found that the board could reasonably believe that the symbols could cause a “material and substantial” disruption. Where there is no history of racial tension, however, a school district’s prohibition on Confederate-themed clothing would appear to violate a student’s First Amendment rights for the same reason as the arm band prohibition in Tinker. In Tinker, the Court rejected school officials’ claims that the presence of students whose family members were serving in Vietnam could cause a disturbance. Likewise, the mere fact that a school is racially or culturally diverse, without a showing of any actual racial tension or conflict concerning Confederate items, should not suffice to permit school officials to suppress a student’s First Amendment rights.


(2) Speech Which Invades the Rights of Others

The Tinker decision also stated that student speech which “invades or collides with the rights of others” could be suppressed. However, determining whether student expression meets this standard is difficult. Although many cases discuss this as a limitation on student speech rights, few, if any, cases have turned on this question. In many cases speech which might fit into this category also interferes with appropriate discipline or is lewd or offensive (see below). It is much easier to tell what speech would not be found to “invade the rights of others” than what would. Certainly evidence that other students object to the speech is alone insufficient to justify banning the expression under Tinker because some students in Tinker did not approve of the students’ armbands and even made hostile comments to their wearers. If courts were to accept that evidence alone as sufficient, “the officials would have a license to prohibit virtually every type of expression.”

In addition, according to one federal district court, a school policy that prohibited attire depicting messages that “harass” other students does not survive the Tinker test, at least as applied to student speech that is not directed at any specific student. The court found that the policy attempted to regulate “the content of speech, not . . . its potential for disruption.” The court noted that under the school's policy a student could not wear a t-shirt that bore a depiction objecting to homosexuality under the school's policy because it would demean his homosexual classmates. While the court recognized that the school wanted to teach students to tolerate different races, ethnic backgrounds, sexes, and sexual orientation, it could not ban such speech, because it conflicted with this objective. The court stated that schools cross “the ‘constitutional line . . . when, instead of merely teaching, the educators demand that students express agreement with the educator’s values.’”


(3) Vulgar, Lewd, Obscene, and Plainly Offensive Speech

In 1986, the Supreme Court held that the Tinker rule did not apply to student speech that is “vulgar, lewd, obscene, and plainly offensive.” In Bethel School District No. 403 v. Fraser, the Court considered a middle school student’s First Amendment challenge to a suspension he received for a speech including sexually suggestive language at a school assembly. The Supreme Court stated that “[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially accepted behavior.” The Court held that “[t]he schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct.” The Court recognized that adults retain substantial freedom under the First Amendment to engage in plainly offensive speech, but refused to extend the same protection to students in the public schools.

As could be expected, the precise boundaries of this category remain undefined. However, one court has recently held that “[s]peech need not be sexual to be prohibited by school officials; speech that is merely lewd, indecent, or offensive is subject to limitation.” Courts also examine the age of the student speaker and his audience when determining whether the restriction on student speech complies with the First Amendment. Thus, a school might be able to prohibit certain age-inappropriate speech among elementary school students that it could not prohibit among older students.

Examples of this type of limitation on student speech are school policies prohibiting the wearing or displaying of certain allegedly offensive symbols. For instance, the Sixth Circuit Court of Appeals recently determined that a student’s First Amendment rights were not violated when the principal prohibited him from wearing Marilyn Manson t-shirts to school. The shirts depicted a “ghoulish and creepy” picture of the singer and a picture and slogan which were disparaging of Christianity. Applying the reasoning in Fraser, the Court of Appeals determined that the school acted reasonably in determining that the shirts were inappropriate for the classroom and contrary to the school’s basic educational mission. A few courts have also considered Confederate flag prohibitions under this heading, but none have held that schools could prohibit the wearing of the image of the Confederate flag or similar items simply because they are “plainly offensive” to some.


(4) School-Sponsored Speech

Courts have also held that schools have much greater latitude in restricting the speech of students where the student’s speech is “school sponsored.” The Supreme Court’s primary discussion of this type of speech is found in Hazelwood v. Kuhlmeier. In Hazelwood, the Court held that a school official did not violate students’ First Amendment rights when he deleted certain stories from a school newspaper that was distributed to residents of the community. The official censored the stories about the impact of divorce on students and another about students’ experiences with pregnancy.

The Supreme Court held that the school could act to disassociate itself from what it believed were controversial and potentially embarrassing stories by prohibiting their publication in a school published newspaper. The Court observed found that “students, parents and members of the public might reasonably perceive [the students’ speech] to bear the imprimatur of the school.” Thus, in forums which persons might reasonably perceive as school-sponsored, including school publications, theatrical productions, and school elections, school officials have much greater latitude to restrict students’ speech so long as it is “reasonably related to legitimate pedagogical concerns.”

In recent years, the “school-sponsored speech” exception to the Tinker rule has been increasingly and expansively used by school officials in an effort to control more student speech. Courts have sometimes acceded to these arguments, permitting school officials to classify more student speech as “school-sponsored,” as thus subject to greater restrictions. With varying degrees of success, school districts have argued that in addition to the forums identified as “school-sponsored” in Hazelwood, student art projects, senior class gifts, and student assembly addresses are also “school-sponsored.” The federal circuit courts have also split over the question whether school officials may discriminate against student speech based upon its viewpoint, even when the speech is school-sponsored. However, the better rule, adopted by the 11th and 9th Circuit Courts of Appeal, is that the First Amendment prohibits viewpoint-based discrimination against student speech even where the speech is sponsored by the school. Thus, the First Amendment prohibits school officials from censoring student newspaper articles opposing war or advocating their religious faith simply because of the viewpoint the student chooses to express.


(5) Content-Neutral and Reasonable Time, Place and Manner Restrictions:

Finally, school officials, like other government officials in other contexts, may impose reasonable time, place and manner restrictions on students’ exercise of their free speech rights. Thus, although school officials may not prohibit a student from distributing Christian tracts to fellow students, they may prohibit the student from distributing the tracts during classroom time or impose some limitations on the numbers of tracts that the student may distribute in an effort to reduce trash on school grounds. Similarly, although school officials may not prohibit a student from delivering a valedictory address simply because of the viewpoint the student intends to express, they may limit the length of the address.

For more information about student religious speech and the issues peculiar to that subject, read next week’s legal feature on that topic.


Conclusion

The public schools serve as a “marketplace of ideas” and are responsible for teaching students how to be productive citizens who appreciate their constitutional freedoms. Thus, the protection of student speech is of paramount importance. The First Amendment affords students broad freedom to express their opinions in public schools, and, although students’ First Amendment rights are not coextensive with those of adults outside the public schools, school officials may suppress student speech only in limited circumstances.


For More Information

If you would like to order other educational materials, or need legal assistance, please contact The Rutherford Institute at P.O. Box 7482, Charlottesville, VA 22906-7482, (434) 978-3888 or visit our website at www.rutherford.org.