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Education Law

Student Speech And The First Amendment

In the mid-twentieth century, the U.S. Supreme Court began to recognize that children do not give up their constitutional rights as a condition of attending public school. The Court acknowledged that the public school is an appropriate setting in which to instill a respect for these rights. Freedom of expression is perhaps the most preciously shielded of individual liberties, and the Court has noted that it must receive "scrupulous protection" in schools "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes" (West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]).

The Court also has recognized that schools function as a "marketplace of ideas" and that the "robust exchange of ideas is a special concern of the First Amendment" (Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 [1967]).

Nevertheless, the right to free expression can be restricted. As Justice OLIVER WENDELL HOLMES JR. noted, FREEDOM OF SPEECH does not allow an individual to yell "Fire!" in a crowded theater when there is no fire (SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). A determination that specific conduct communicates an idea does not ensure constitutional protection. The judiciary has recognized that defamatory, obscene, and inflammatory expression may fall outside the protections of the FIRST AMENDMENT. More-over, the U.S. Supreme Court has acknowledged that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings" (Bethel Sch. Dist. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L.Ed. 2d 549 [1986]). Accordingly, students' rights to free expression may be restricted by policies that are reasonably designed to take into account the special circumstances of the educational environment.

It was not until 1969 that the U.S. Supreme Court specifically addressed the scope of students' freedom of expression in public schools. Its landmark decision in this area, TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), often is referred to as the MAGNA CHARTA of students' rights. Tinker arose from an incident in which students were suspended for wearing black armbands to protest the VIETNAM WAR. Concluding that school authorities had suspended the students for expression that was not accompanied by any disorder or disturbance, the U.S. Supreme Court ruled that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."

For almost two decades, lower courts interpreted the Tinker mandate broadly, applying it to controversies involving a range of expressive activities by students, school-sponsored and otherwise. Although Tinker has not been over-turned, the Court limited the application of its principle in the late 1980s and early 1990s, beginning with the 1986 decision of Bethel School Dist. 403 v. Fraser. In Fraser, the Court upheld disciplinary action taken against a student for using a sexual metaphor in a nominating speech during a student government assembly. The Court recognized that the inculcation of fundamental values of civility is an important objective of public schools and that a

Tinker v. Des Moines addressed the scope of students' freedom of expression in public schools. The case arose from an incident in which students, including Mary Beth and John Tinker (pictured), were suspended for wearing black armbands in protest of the Vietnam War.

school board has the authority to determine what manner of speech is inappropriate in classes and assemblies.

Two years after Fraser, the Court affirmed the right of a school principal to delete two pages from the school newspaper because of the content of articles on DIVORCE and teenage pregnancy (Hazelwood v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 [1988]). The Court acknowledged school authorities' broad discretion to ensure that expression appearing to bear the school's imprimatur is consistent with educational objectives. Further, the Court expansively interpreted the category of student expression that is subject to CENSORSHIP as that which occurs in school publications and in all school-sponsored activities. In both Hazelwood and Fraser, the Court indicated that school authorities could determine for themselves the expression that is consistent with their schools' objectives.

Although many questions remain unanswered concerning the application of the First Amendment guarantee of free speech in the unique forum of the public school, the law does seem to be settled in the following areas:

  • School officials may discipline students whose speech or expression materially and substantially disrupts the educational environment (Bethel School Dist. 403 v. Fraser).
  • School administrators may reasonably regulate the content and distribution of printed material at school (Hazelwood School Dist. v. Kuhlmeier).
  • The Equal Access Act (Pub. L. 98-377, Title VIII, Aug. 11, 1984, 98 Stat. 1302 [20 U.S.C.A. §§ 4071 et seq.]) requires a school to permit religious student groups to meet during non-instructional time if the school permits other extracurricular groups to meet in the same or a similar manner (Board of Education v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 [1990]).
  • School officials have far more control and flexibility in selecting and rejecting curricular materials than they do in deciding about library books and magazines (Board of Education v. Pico, 457 U.S. 853, 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), 4 Ed. Law Rep. 1013 [1982]).
  • School officials may make judgments on the appropriateness of student speech in school, based on the content of the speech, when that speech is vulgar or otherwise offensive in nature (Bethel School Dist. 403 v. Fraser).
  • School officials may reasonably regulate student speech and expression when its exercise either intrudes on the rights of others or is in some way inconsistent with a school's over-all curricular mission (see Fraser).

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