Free Speech Rights of Students
The issue: When may administrators in public secondary schools and colleges restrict the speech of students?
Introduction

Students do not, the Court tells us in Tinker vs. Des Moines, "shed their constitutional rights when they enter the schoolhouse door."  But it is also the case that school administrators have a far greater ability to restrict the speech of their students than the government has to restrict the speech of the general public.  Student speech cases require a balancing of the legitimate educational objectives and need for school discipline of administrators against the First Amendment values served by extending speech rights of students.

In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War.  The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.


Mary Beth Tinker, John Tinker, and mother.

Papish considered the decision of the University of Missouri to expel a journalism student who distributed a controversial leaflet (including four-letter words and a cartoon showing the Statue of Liberty being raped) on campus.  The Court held the expulsion violated Papish's First Amendment rights.

Bethel and Hazelwood, on the other hand, were victories for school administrators over the First Amendment claims of students.  In Bethel, the Court upheld the right of Washington state high school administrators to discipline a student for delivering a campaign speech at a school assembly that was loaded with sexual innuendo.  The Court expressed the view that administrators ought to have the discretion to punish student speech that violates school rules and has the tendency to interfere with legitimate educational and disciplinary objectives.  In Hazelwood, the Court relied heavily on Bethel to uphold the right of school administrators to censor materials in a student-edited school paper that concerned sensitive subjects such as student pregnancy, or that could be considered an invasion of privacy.

Supreme Court Decides New Student Speech Case

Kenneth Starr argued the case for Juneau's principal

Joseph Frederick, a senior at Juneau, Alaska's Douglas High School, held up a 14-foot long banner at an Olympic torch relay in 2002 that read, "Bong Hits 4 Jesus."  Even though Frederick was standing on a public sidewalk off the school grounds, high school principal Deborah Morse ordered the student suspended for 10 days for violating the school's policy against promoting illegal substances at an event sanctioned by the school.  Frederick sued.  After the Ninth Circuit Court of Appeals sided with Frederick on First Amendment grounds, former special prosecutor in the Clinton-Lewinsky case, Kenneth Starr, filed a petition for cert in the U. S. Supreme Court. 

In June 2007, the Court announced its decision in Frederick v Morse.  Justice Roberts, writing for a five to four majority, found that schools have the right to discipline students who present messages that conflict with stated anti-drug policies, even where the evidence of disruption of school activities (a fact that seemed critical in Tinker) might be absent.


Cases
Tinker v. Des Moines Indep. Community School District  (1969)
Papish v. Bd. of Curators of the Univ. of Missouri (1973)
Bethel School District No. 403 v. Fraser (1986)
Hazelwood School District v. Kuhlmeier (1988)
Morse v Frederick (2007)


Student editor of Hazelwood's Spectrum.

Questions

1. Do the speech rights of students increase as they get older?  Do high school students have the right to speak in ways that elementary school students do not?  To university and graduate school students have the right to speak in ways that might be punished if they were students in a high school?
2.  Would Mary Beth Tinker have a First Amendment right to wear a bright pink armband, just because she thought it was fashionable--or could school administrators in that case enforce a "no armbands" policy?  What does a bright pink armband say? 
3.  Would Tinker have a right to wear a black armband in protest of the Viet Nam War even if no one understood the message she was attempting to communicate?
4.  Would Tinker have come out differently if school administrators could have demonstrated that the armband caused loud debates to break out in class?  Fights to break out in the hall?
5.  In Tinker, the Court noted that the school banned armbands, but allowed other sorts of expression such as "Vote for Nixon" or "Vote for Humphrey" buttons.  Would the school have had a stronger argument if it banned ALL forms of symbolic expression, campaign buttons, and clothing with messages? Would the school have prevailed in that case?

6.  Does a student in a predominately Jewish school have the right to wear a swastika to class to demonstrate his support for Nazi ideology?  Does the First Amendment protect symbolic student speech only so long as it is not TOO controversial?
7.  Would Papish have come out differently if she had attacked named teachers and school administrators in her leaflet?  If she had passed in out in class rather than outside on the university campus?
8.  Did Bethel adequately distinguish Tinker?  Is the expression of sexual ideas more disruptive of school missions than the expression of political ideas?
9.  If administrators in Hazelwood had told student paper editors "you have complete editorial discretion," would they
have then created a public forum that would have prevented them from later deciding to censor controversial articles? 
10.  Does a school always have the right to prohibit speech that might expose it to liability, such as potentially defamatory speech?
11.  Would Frederick have been protected by the First Amendment if his banner read "Legalize Bong Hits"?  What if the banner simply read "Bong"?
12. A senior at a West Virginia high school created a MySpace page called "S.A.S.H.," which the student was an acronym for "Students Against Sluts Herpes," but which other students said really stood for "Students Agains Shay's Herpes." The discussion on the MySpace page, for the most part, heaped abuse and criticism on another student in the school, Shay N.  When school adminstrators suspended the student who created the MySpace page, she sued, arguing that her page was created off-campus and did not substantially disrupt the work or discipline of the school.  Do you think the suspension violated the First Amendment?  (See Kowalski v Berkeley County Schools, 4th Cir (7/27/11), upholding the suspension.)


The Supreme Court has decided many cases involving the First Amendment rights of students that are not included in the set of cases listed above.  Some of these cases are explored elsewhere on this site including West Virginia v Barnette (Can schools suspend  students for refusing to recite the Pledge of Allegiance? Answer: No),  Widmar v Vincent (Can a university exclude student religious groups from using a meeting room open to other student groups? Answer: No), Rosenberger v Univ of Virginia (Can a university deny funding to a student newpaper promoting religious views when it provides funding to most other student publications? Answer: No), and Santa Fe School District v Doe (Can a high school provide students with use of a school public address system for use before a football game when it expects that students will use that time to offer a prayer? Answer: No--under an Establishment Clause, not Free Speech Clause, analysis.)
 
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