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.
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
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
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)
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.)
John Tinker, center, discusses his case in 2009 with UMKC law students.