Fister v. Minnesota New Country School

The case can be seen as a blow to the First Amendment rights of students in the ongoing battle over whether students have the same right to free speech as adults. But because the case involved not political expression, but personal comment about another student, its impact is likely to be limited.

In August of 1995, Mary Fister was a 12-year-old student at the Minnesota New Country School, a charter school in Le Sueur, Minnesota. Mary and other students in a nature studies class were exploring the Minnesota River when they discovered a population of deformed frogs. The discovery was widely reported in the area and nationally; Mary Fister planned to report the discovery in an article to be posted on the Internet. For the article, Fister collected quotations from fellow students. One student's parents objected to Fister's quoting their son, and sent a letter to her:

Dear Mary: It has come to our attention you have been soliciting information and quotes from our son . . . regarding the frogs, his feelings about the frogs, and the research surrounding them. As . . . parents, we do not want you using information or quotes given to you by our son for publication.

As an experimental school, the Minnesota New Country School allowed students a degree of freedom, including providing special work spaces for each child. The work space included a desk and locker, and a divider which served as a display space. Fister posted the letter from the other student's parents on her divider, with a sign that read, "Making a mountain out of a molehill." The student and his mother complained to the school, stating that they felt the posting was harassment; the school insisted that Fister take down the letter and sign. When Fister re-posted the letter, the school cited a policy which specified that "[f]ighting, threatening language, other endangerment or harassment . . . [is] grounds for suspension and/or expulsion." Fister was suspended three times, and then expelled for one year after a hearing by the school. Fister protested the expulsion, and took the case to the Eighth District Court.

Fister argued that, based on the decision in Tinker v. Des Moines Independent Community School District (1969), her school had violated the First Amendment's Freedom of Speech Clause. In Tinker, three students wore black armbands to school to protest the war in Vietnam. They were asked to remove the armbands, and when they refused, they were suspended. The Supreme Court ruled in the students' favor, stating, "A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments." The Court also said in its majority opinion, "First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment." Fister saw her posting as a form of speech protected by the First Amendment, and argued that the school had, in fact, prohibited her expression just as the Des Moines School District had done in Tinker.

Another related case in the discussion of students' right to free speech, also relied upon by Fister, was Hazelwood School District v. Kuhlmeier (1988). In that case, the U.S. Supreme Court ruled that a principal "acted reasonably" when he deleted certain objectionable articles about pregnancy, divorce, and related issues from the student newspaper. But while Hazelwood limited students' freedom of speech, it did set a precedent by acknowledging that schools could create a public forum--"School facilities may be deemed to be public forums only if school authorities have by policy or by practice opened the facilities"--in which speech could not be limited. Fister argued that her school had created just such a forum, and then violated First Amendment freedoms by censoring her speech.

But both the Eighth District Court and the Court of Appeals for the Eighth District disagreed with Fister's arguments. Although Tinker protected students' speech, it stipulated that the students in that case "were not disruptive and did not impinge upon the rights of others." In Fister's case, teachers, students, and parents found her actions harassing and disruptive; the courts agreed. The court reasoned that such actions are not protected by the First Amendment. And in response to Fister's argument that the school had created a public forum, and then denied her access to it, the courts found that "because students were not permitted indiscriminate use of their display boards," no public forum existed. The school restricted what types of things could be shown on the boards, including, as the court said in its written opinion, "postings critical of other students or perceived by other students as harassing." Both courts found that the school acted reasonably by expelling Mary, and did not violate the First Amendment.

While this case, like Hazelwood, restricted the rights of students, its significance in the overall debate about students' free speech is limited. Because it involved student interaction, it is different from both Tinker and Hazelwood, which were about peaceful, and political, expression.