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Overview
Sixty years ago, the United States Supreme
Court stressed the important role played by boards of education
in preparing this country’s children for citizenship. “Educating
the young for citizenship,” said Justice Jackson “is reason for
scrupulous protection of Constitutional freedoms of the
individual, if we are not to strangle the free mind at its
source….” Highlighted in the Court’s list of fundamental
freedoms to nurture (and protect from government encroachment)
was “free speech.” In this case students passively
refused to salute our nation’s flag. West Virginia State
Board v Barnette (1943)
The Tinker Standard. While the early
1960’s produced a line of court decisions treating student
protest activities on college campuses (see, e.g.,
Dixon v Alabama State Board, 1961) it was not until 1969
that the Supreme Court expended First Amendment free speech
rights and protections to public elementary and secondary school
students. The case, Tinker v Des Moines (1969), involved
the discipline of several students who wore black armbands
(symbolic speech) to protest the war in Vietnam. In the words of
Justice Fortas, student disciplinary rules are necessary to the
operation of a school. However, “students may not be regarded as
closed-circuit recipients of only that which the State chooses
to communicate. They may not be confined to the expression of
those sentiments that are officially approved. In the absence of
a specific showing of constitutionally valid reasons to regulate
their speech, students are entitled to freedom of expression of
their views.” Absent a reasonable forecast that student
expression will “materially and substantially interfere with or
disrupt” the requirement of appropriate discipline in the
operation of the school, or will interfere with the work or
impinge on the rights of other students, official prohibitions
of student expression cannot be sustained. Tinker v Des
Moines (1969)
Immediate Impact. The Tinker
decision ushered in an era in which the rights of students to
freely express themselves would be greatly expanded, while the
policy-making authority of local school boards and the
disciplinary authority of public school administrators were
substantially limited. Because the “material and
substantial disruption” standard focused on a linking of school
policies and regulations to foreseeable results, judges
required public school officials to have, as a precondition of
taking action, more than a “mere desire to avoid discomfort and
unpleasantness that always accompany an unpopular viewpoint.”
Ironically, Justice Black in his dissenting opinion predicted
that the day would come when school officials lose control of
student discipline, and judges assume greater responsibility for
running the public schools. Tinker v Des Moines (1969)
Student Speech and Expression
Post-Tinker. The period of the 1970’s and 1980’s produced a
line of cases involving challenges to dress codes, hairstyle
regulations and publications. Suffice it to say, the courts were
busy applying Tinker’s dictum that students do not shed
“their constitutional rights to freedom of speech or expression
at the schoolhouse gate”
In Crossen v Fatsi (1970), for
example, a federal district court in Connecticut heard a
challenge to a public school system’s dress code. The code
required that all students be neatly dressed and groomed,
maintain standards of modesty and good taste conducive to an
educational atmosphere, and refrain from wearing “extreme”
styles of clothing. Applying Tinker, the court declared
the student dress code unconstitutional. First, the wording of
the requirement was too vague and overbroad, and too imprecise
to be enforceable. In the court’s words, “It leaves to the
arbitrary whim of the principal, what in fact constitutes
extreme fashion or style in the matter of personal grooming….”
Second, a student dress code should be reasonably designed “to
avoid the disruption of the classroom atmosphere and decorum,
prevent disruption among students, avoid the distraction of
other pupils or interference with the educational process of the
school.”
Two years later, in Massie v Henry
(1972), students in a North Carolina public school system
successfully challenged a “grooming/hair length policy.” In
reversing the decision of federal district court judge who had
ruled in favor of the school system, the United States Court of
Appeals for the Fourth Circuit placed squarely on the shoulders
of public school officials the burden of establishing the
necessity of infringing upon a student’s expression rights. To
the Court, there must be sufficient proof that the necessity of
enforcing the school system’s regulation outweighs the
protection of student First Amendment rights. In this case there
was no evidence shown of any “disruptive effect” caused by the
students hair length or style.
In Bishop v Cermenaro (1973), a
federal district court judge ruled that public school officials
must show a “countervailing interest” sufficient to justify
intrusion into student First Amendment expression rights. Absent
a compelling reason for implementing a student dress code, the
code failed to pass constitutional muster.
Jacobs v Board of School Commissioners
(1974) involved the application of the Tinker test to
student publications. The United States Court of Appeals for the
Seventh Circuit made it clear that the occasional presence of
“earthy words” in a student publication cannot be found to be
likely to cause “substantial and material disruption of the
educational objectives of the school.
In Board of Education v Pico (1982),
the United States Supreme Court extended First Amendment
protections to the rights of public school students in fostering
self-expression for purposes of debate, discussion, and the
dissemination of ideas. While the high court made it clear that
school officials do not relinquish their legal authority to
establish and control the school curriculum (including the
selection of books for the school library), the Court also made
it clear that this authority must operate within the bounds of
the First Amendment and must be balanced with the rights of
students. Student First Amendment rights, opined Justice
Brennan, “must be construed in light of the special
characteristics of the school environment.”
As the above court decisions demonstrate,
the post-Tinker period (1970 through 1985) saw an
expansion of student First Amendment speech and expression
protections, and lawyers cautioned local school boards and
public school administrators to act with extreme caution.
Suffice it to say, this era has been accurately characterized as
a time when public school administrators “were reluctant to act
on matters of student expression for fear of being sued.” Vacca
and Bosher (2003)
The Pendulum Swings. Judicial
analysis in the mid-1980s began to move away from total reliance
on the Tinker’s “material and substantial disruption”
standard. In two decisions from the Supreme Court,
content-oriented tests of appropriateness, offensiveness,
vulgarity, and obscenity emerged as viable concepts to probe in
student related situations. What is or is not appropriate
and suitable student speech and other expressive
activities within the “unique environment” of a school became a
primary question, and whether or not a school maintained a
“limited open forum” for student speech and expression became a
matter to be determined on a case-by-case basis. Vacca and
Bosher (2003)
Fraser plus Hazelwood: A Focus On
Content. While Tinker made it clear that the
appropriateness of student speech and expression is
evaluated by results and not by content, Bethel School
District v Fraser (1986) focused on the content of a
student’s words and not solely on results. Fraser, a student,
made a campaign speech on behalf of his friend. The speech,
which took place in the high school auditorium, was filled with
sexual innuendo. Fraser was ultimately suspended from school. He
took his case into federal district court where, relying on the
Tinker test, he prevailed.
On appeal to the United States Court of
Appeals for the Ninth Circuit, the district court was
overturned. In the appellate court’s view, school officials were
justified in disciplining Fraser because his speech contained
language that was indecent.
Ultimately the United States Supreme Court
ruled 7 to 2 in favor of the school district. It is significant
that the Court did not treat Fraser’s language as obscene;
rather, it characterized his words as “vulgar and offensive” and
therefore applied a lesser standard of review. The First
Amendment, stated the majority, does not protect students in the
use of vulgar and offensive language in public discourse. The
majority saw as important the duty of educators to nurture
civility in our future citizens. It therefore follows that “[t]
he determination of what manner of speech in the classroom or
assembly is inappropriate properly rests with the school board.”
Bethel School District v Fraser (1986)
Two years later, the Supreme Court decided
Hazelwood v Kuhlmeier (1988). This case involved a
student newspaper produced in a public school journalism class.
The high school principal had refused to allow the publication
of two student authored articles in the school newspaper. By a
vote of 5 to 3 the Court ruled in favor of the school district.
High school principals, said the majority, exercise broad
authority and discretion to judge the appropriateness of the
content of student expressive acts that “bear the imprimatur of
the school.” As such, “[t]he standard articulated in Tinker
need not also be the standard for determining when a school may
refuse to lend its name and resources to the dissemination of
student expression.” The Court cautioned, however, that such
decisions must be based on “reasonable pedagogical concerns” and
not on “personal taste.”
Student Speech and Expression in the
1990’s. As public school systems moved into and through the
decade of the 1990’s it was apparent that the courts had created
a balance between student freedoms of speech and expression
(separating the private speech and expression of students from
that which can be considered school-sponsored), and the
disciplinary authority of school officials. At the same time,
however, courts consistently held that school officials
possessed authority to control student speech and expression
within the unique forum (i.e., limited purpose forum) of
a public school. More specifically, school policies and rules
may limit student speech and other expressive acts that (1)
disrupt the educational environment, or (2) interfere with the
teaching and learning processes, or (3) interfere with the
educational opportunities of other students, or (4) are vulgar,
offensive, or obscene, or (5) carry the school’s official
imprimatur. However, educational policy-makers and school
administrators were consistently cautioned by their legal
advisors to proceed with care, especially where disciplinary
actions are based on content rather than on disruptive
results. (Vacca and Hudgins, 1994)
Emerging Issues
The decade of the 1990’s produced new forms
of student speech and expression. As a result, several issues
emerged and the courts remained busy. What follows are ten
examples of issue producing situations from the last decade:
·
Students argued for their First Amendment right to
freely express their religious beliefs and views in school
buildings, in classrooms, on school property, at graduation
ceremonies, and at school sponsored athletic events.
·
Members of student-initiated, non-curricular Bible
clubs argued that their First Amendment expression rights were
infringed when school officials denied their club access to the
school’s forum.
·
Students claimed that the First Amendment was
abridged when school system policies did not allow them to wear
hats, sunglasses, and items of jewelry while in school.
·
Students relied on the First Amendment’s free
speech guarantee to challenge disciplinary actions taken against
them for violating school system “civility, anti-bias motivated,
anti-hate speech” policies.
·
Students claimed that their First Amendment rights
were violated when disciplined for using popular “slang” words
and phrases, or for “heckling,” or “taunting,” or “teasing”
other students, or for dressing in certain “in” fashions and
styles.
·
Students argued First Amendment violations when
disciplined solely because they expressed views and opinions
that ran counter to those of school system board members and
administrators.
·
Students claimed First Amendment protection when
disciplined for wearing T-shirts, buttons, hats, and flags
bearing commercial, political, cultural, and historical
messages.
·
Students relied on the First Amendment to
challenge school board policies that limit or forbid
distribution of publications and other literature on school
grounds, without prior approval of the school principal.
·
Students relied on the First Amendment to
challenge disciplinary actions taken for violating school system
policies dealing with the use of school computers, personal
computers, pagers, cell phones, picture-taking telephones, and
other new forms of technology.
·
Students claimed abridgement of the First
Amendment when not allowed to use the school’s public address
system and bulletin boards to disseminate information to their
fellow students.
Case Law
Decided during the 2000 term of the United
States Supreme Court, a case out of Texas required the Court to
decide the constitutionality of student led prayers before
football games. In Doe v Santa Fe I.S.D. (2000), the
Court held that a school system policy that allowed students to
deliver “non-proselytizing invocations and messages” at the
beginning of high school football games violated the First
Amendment. The school board had argued that allowing students to
lead the crowd in a pre-game prayer over the stadium public
address system turned over control of the prayer to the students
and thus became an exercise of “private speech.” The high court
disagreed with that position and said that a student-led prayer
delivered over the school system’s public address system, under
the supervision of school system teachers, is “not private
speech.
The United States Court of Appeals for the
Sixth Circuit held in an Ohio case that school administrators
acted reasonable in prohibiting students from wearing “Marilyn
Manson T-shirts” while in school. The school system had a policy
that specifically addressed students wearing clothing bearing
offensive illustrations and slogans. Using that policy, a
principal told a student to either turn the T-shirt inside out,
or go home and change to another shirt and come back to school,
or leave the building and be considered a truant. Subsequently
the student alleged, among other things, that the principal, the
school board, and other school officials violated the First
Amendment by engaging in “viewpoint discrimination.” Relying on
Fraser and Hazelwood, and not on the Tinker
standard, the Sixth Circuit firmly stated that school officials
possess the authority to determine what is or is not appropriate
speech and expression within the school. Boroff v Van Wert
City School Board, 2000)
Killion v Franklin Regional School
District (2001) involved a challenge to the suspension of a
high school student who had created and e-mailed to friends a
“top-ten faculty list.” The student created the list on his home
computer. School officials considered the language used to be
abusive, lewd, and vulgar. A federal district court ruled in the
student’s favor. The list was created off school grounds on the
student’s computer, and there was no evidence that the list had
caused actual disruption of or interference with school
activities. For more recent cases involving students and
computers, see J.S. v Bethlehem Area School District
(2002), and Flaherty v Keystone Oaks School
District (2003).
In 2002, the United States Court of Appeals
for the Third Circuit heard a case involving a challenge to a
school system’s racial harassment policy. The policy prohibited
any written material that creates “ill will” among the student
body. The policy was intended to prevent disruption. The case
was brought on behalf of students who claimed a violation of
their free speech when they were prohibited from wearing “Jeff
Foxworthy T-shirts.” More specifically, school officials focused
their attention on the use of the term “redneck jokes.” Even
though most recent court decisions (post-Columbine) have upheld
school board policies intended to promote student safety an
prevent school disruption, the Third Circuit in this case found
fault with the application of the harassment policy to
these particular T-shirts. School officials failed to show a
direct connection between use of the term “redneck” and school
disruption. Warren Hills Regional Board v Sypniewski
(3rd Cir. 2002)
Lassonde v Pleasanton Unified School
District (2003), involved a student’s high school graduation
speech. A review of the student’s proposed speech revealed the
inclusion of several “religiously oriented” references. Fearing
possible Establishment Clause problems, school officials asked
the student to delete the “proselytizing and sectarian”
references from the speech, but said they would allow the
inclusion of references “to God” as they relate to the student’s
personal beliefs. School officials also allowed the student to
announce that his speech had been involuntarily changed, but
that copies of his unaltered speech would be available at the
conclusion of the graduation ceremony. The Court considered the
actions of school officials to be both reasonable and well
within the bounds of the First Amendment. (It should be noted
that the United States Supreme Court recently denied review in
the case.)
Walz v Egg Harbor Township (2003),
involved a challenge to a school system’s policy that forbade
the distribution of “religiously, politically, or commercially
oriented items” in school classrooms and while classes were in
session. An elementary school parent who was denied permission
to distribute pencils and candy canes bearing religious messages
during class time (at a time during which seasonal parties were
being held) challenged the policy. School officials were willing
to accommodate the parent by allowing distribution of the items
in a hallway, as students left their classrooms. Agreeing with
the lower court, the Third Circuit held that school officials
acted reasonably. School officials had a valid educational
purpose and were well within their authority to regulate
curricular activities involving “impressionable age elementary
school children.”
Policy Implications
In 2004, student speech and expression
remain fertile areas for potential litigation. Because student
speech and expression are forms of student conduct, the
possibility for misconduct (and a corresponding need for school
principals to take immediate disciplinary action) is certain. As
the above case law examples demonstrate, First Amendment
protections apply to public school students. It therefore
follows that educational policy makers must carefully craft
policies treating student speech and expression; policies that
recognize and foster student rights but, at the same time, grant
school administrators and teachers the prerogative to: (1)
protect the educational environment from disruption, and (2)
keep everyone (students, teachers, staff, and administrators)
secure and safe from harm.
What follow are five suggestions for
school officials to consider as they review current policy
statements and draft new ones. School system policies must make
it clear that:
·
The school board recognizes, respects, and
protects the First Amendment rights of students including, but
not limited to, the rights of students to express their personal
views on matters of public concern, and to receive and
disseminate information.
·
The terms “student speech” and “student expressive
activities” include, but are not limited to, student writings,
verbal statements, dress and attire, grooming, and assembly.
·
School officials possess the authority to
reasonably regulate the time, place, and manner of all student
speech and expressive activities occurring in or on school
property (including school computers and other forms of
technology), and at school sponsored events
·
Principals, assistant principals, and classroom
teachers possess authority to discipline students when their
speech or expression materially and substantially disrupts the
educational environment; or threatens others; or poses harm to
themselves or others; or interferes with the educational
opportunities of other students; or prevents teachers and other
staff members from doing their work.
·
School officials possess the authority and
discretion to: (1) evaluate the content of student speech and
other expressive acts exercised inside school, at school-
sponsored functions, or as part of a curriculum-related matter;
and (2) determine whether the content and method of delivery of
such acts is vulgar, offensive, or otherwise inappropriate, or
advertises, promotes and encourages illegal and/or harmful
activity.
Finally, school policies must be written in
clear and easily understood language so as to pass
constitutional muster if and when they are subjected to First
Amendment scrutiny.
Resources Cited
Bethel School District v Fraser, 478 U.S.
675 (1986)
Bishop v Cermenaro, 355 F.Supp. 1296 (D.
Mass. 1973)
Board of Education v Pico, 457 U.S. 853
(1982)
Boroff v Van Wert City Board of Education,
220 F.3d 465 (6th Cir. 2000)
Crossen v Fatsi, 309 F.Supp. 114 (D. Conn.
1970)
Dixon v Alabama, 294 F.2d 150 (5th
Cir 1961), cert. denied, 368 U.S. 930 (1961)
Doe v Santa Fe I.S.D., 530 U.S. 1002 (2000)
Flaherty v Keystone Oaks, 247 F.Supp.2d 698
(W.D. Pa. 2003)
Hazelwood v Kuhlmeier, 484 U.S. 260 (1988)
Jacobs v Board, 490 F.2d 601 (7th
Cir. 1973), cert. denied, 417 U.S. 928 (1974)
J.S. v Bethlehem Area School Dist., 804
A.2d 847 (Pa. 2002)
Killion v Franklin Regional, 136 F.Supp.2d
446 (W.D. Pa. 2001)
Lassonde v Pleasanton U.S.D., 2003 WL
355911 (9th Cir. 2003)
Massie v Henry, 455 F.2d 779 (4th
Cir. 1972)
Tinker v Des Moines, 393 U.S. 503 (1969)
Vacca, Richard S. and William C. Bosher,
Jr., LAW AND EDUCATION, Sixth Edition (LexisNexis, 2003)
Vacca, Richard S. and H.C. Hudgins, Jr.,
“Student Speech and The First Amendment,” 89 West’s Education
Law Reporter 1 (April 21, 1994)
Walz v Egg Harbor, 342 F.3d 271 (3rd
Cir. 2003)
Warren Hills Regional v Sypniewski, 307
F.3d 243 (3rd Cir. 2002)
West Virginia State Board v Barnette, 319
U.S. 624 (1943)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
