The First Amendment Goes to School

Leora Harpaz

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

  Supreme Court strikes down school regulation prohibiting the wearing of black armbands “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Tinker Plaintiffs in 1965

Mary Beth Tinker, 13 John Tinker, 15 Christopher Eckhardt, 15

Tinker Plaintiffs in 1998

Regulation at Issue in Tinker

 “The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.”

Undifferentiated Fear

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Tinker at 508-09.

 “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

Material and Substantial Interference

Tinker at 509.

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 “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”

Material and Substantial Interference

 “Unlike the record in

Tinker,

the record in this case evidences

ample reason for school officials to anticipate disruption

resulting from the wearing of the banned symbol [the Confederate flag]. During the prior academic year, Blount High School had been the scene of racial tension, intimidation and violence to such an extent that law enforcement officials were brought in to maintain order, and the school was defending against lawsuits depicting it as a racially hostile educational environment.” D.B. v. Lafon, United States Court of Appeals for the Sixth Circuit, Feb. 21, 2007

Forecast of Substantial Disruption

 “[T]he students' petition and complaints against the coach were protected speech because they could not

reasonably have led school officials to forecast substantial disruption of or material interference with a school activity.

However, we agree with the district court that the students' refusal to board the bus was not protected by the First Amendment because, even if expressive conduct, it substantially disrupted and materially interfered with the operation of the varsity boys basketball program.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755,759 (9 th Cir. 2006).

The Rights of Others

Tinker at 508.

 “The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.

There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.”

Bethel School District No. 403 v. Fraser,

478 U.S. 675 (1986).

 Supreme Court upholds discipline of student for making speech containing sexual innuendo at school assembly.

Fraser’s speech

 I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president -- he'll never come between you and the best our high school can be.

Vulgar and Lewd Speech

-

Fraser at 685-86.

 “Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.

The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.

Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public school education.”

Hazelwood School District v. Kuhlmeier

, 484 U.S. 260 (1988)

 Supreme Court upholds right of public school to censor content of student newspaper written by members of journalism class.



School-Sponsored Expressive Activities

Kuhlmeier at 270-71.

“The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in

occur on the school premises

concerns educators' authority over

Tinker

-- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence publications, theatrical productions, and other

a student's personal expression that happens to

. The latter question

school-sponsored expressive activities

that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”

School-Sponsored Publications, Theatrical Productions, and Other Expressive Activities

 “

These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”

Kuhlmeier at 271.

Legitimate Pedagogical Concerns

Kuhlmeier at 272-73.

-

 “Accordingly, we conclude that the standard articulated in

concerns.

”

Tinker

for determining when a school may punish student expression 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. Instead,

we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical

Legitimate Pedagogical Concerns

Kuhlmeier at 271.

-

 “Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.”

Kuhlmeier Interpreting Fraser

-

Kuhlmeier at 270-71.

 “A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was ‘sexually explicit’ but not legally obscene at an official school assembly, because the school was entitled to ‘disassociate itself’ from the speech in a manner that would demonstrate to others that such vulgarity is ‘wholly inconsistent with the “fundamental values” of public school education.’”



Kuhlmeier Interpreting Fraser

Kuhlmeier at 272.

-

“In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting.

A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with ‘the shared values of a civilized social order,’ Fraser, supra, at 683, or to associate the school with any position other than neutrality on matters of political controversy.”

Applying the Tinker Test

 A student wears a T-shirt to school that reads, “IMPEACH OBAMA.” Can she be disciplined?

 A student wears a T-shirt to school that reads, “FUCK THE WAR.” Can she be disciplined?

 A student wears a T-shirt to school that reads, “HOMOSEXUALITY IS A SIN.” Can she be disciplined?

Morse v. Frederick

 The BONG HiTS 4 JESUS Banner

Massachusetts Students' Freedom of Expression Law

,

Mass. Gen. Laws ch. 71, § 82.

 The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.

Massachusetts Students' Freedom of Expression Law

,

Mass. Gen. Laws ch. 71, § 82.

 For the purposes of this section the word student shall mean any person attending a public secondary school in the commonwealth.

Dress and appearance of students protected

, Chapter 71: Section 83.

 School officials shall not abridge the rights of students as to personal dress and appearance except if such officials determine that such personal dress and appearance violate reasonable standards of health, safety and cleanliness.

Equal Access Act

– 20 U.S.C. § 4071(a) Denial of Equal Access Prohibited

 Restriction of limited open forum on basis of religious, political, philosophical, or other speech context prohibited. It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

Definition of Limited Open Forum

 20 U.S.C. § 4071(b) "Limited open forum" defined. A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.