Free speech rights in public elementary and secondary schools have undergone a remarkable transformation in the past 30 years, from nonexistence to a perpetual tension between those rights and the need for schools to control student behavior in order to preserve the sanctity of the learning environment. Today, it would be most accurate to say that public schools students have some First Amendment rights in schools, but certainly not as many as adults do in the real world. Although Tinker v. Des Moines Independent School District was the landmark case that set forth the standards which current student free speech cases are judged, the first case that suggested students had some First Amendment rights was decided much earlier -- during World War II, to be exact.
This 1943 case marked the first time the Supreme Court ever conceded students had First Amendment rights. During World War II, the West Virginia State Board of Education passed a law requiring all students to salute the flag and recite the Pledge of Allegiance. Several students and their parents who were members of the Jehovah's Witnesses challenged the policy, arguing their religion prevented them from swearing allegiance to anyone but God, and so they could not recite the Pledge of Allegiance. The Su preme Court decided the students were in the right, and on First Amendment grounds struck down the West Virginia ordinance as violating the right of free expression.
"Educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual," said the Court, "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." The Court determined that students had the right not to be coerced by school administrators to doing something that disagreed with their religious beliefs. Free speech in this case meant the right not to say something, in this case, the Pledge of Allegiance.
After Barnette, the student First Amendment rights front was quiet in the courts, until the case of Tinker v. Des Moines Independent Community School District in 1969 shattered the peace and made sure there would be controversy for a long time to come. The Vietnam War was raging full force when the students at a Des Moines, Iowa, high school decided to wear black armbands to school one day to protest what they saw as an unjust struggle. The school administrators learned of their plan and passed a rule banning black armbands from the school and suspending any student caught wearing one. The students wore the armbands anyway, and as a result were suspended. They sued the school district.
In writing in favor of the students for the majority, Justice Abe Fortas wrote these iconic words: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate … School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect … In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."
But Fortas added an important caveat: conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." In other words, not all student conduct is First Amendment protected, only that which does not disturb the classroom environment or invade the rights of others. This standard, also known as the "material and substantial disruption test," has basically remained the standard in which the school's right to prescribe free speech is examined at the secondary rank as well as at public colleges and universities.
After Tinker, a host of cases were brought at the lower court level litigating public school free speech issues. Many of these came down on the side of freedom of expression for students. Many lower courts found themselves asking, after Tinker, what student speech can in fact be regulated.
The Supreme Court finally attempted to set some limits on student First Amendment rights in the 1986 case of Bethel School District No. 403 v. Fraser. Matthew Fraser made a speech at an assembly full of obscenities and innuendoes. When school officials attempted to discipline him for his speech, he sued. The Supreme Court sided with the school.
The Court found that Fraser had failed the "substantial disorder" part of the Tinker test. Chief Justice Warren Berger, writing for the majority, said that schools have a responsibility to instill students with "habits and manners of civility as values." The effect of Fraser's speech, suggested Berger, was to undermine this responsibility; therefore, he did not receive First Amendment protection for it. Not only can schools take into account whether speech is offensive to other students, said Berger, "the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior." Bethel served notice that the Supreme Court saw limitations on student free speech rights. The next big school First Amendment case decided by the court served to emphasize that point.
The school newspaper at Hazelwood East High School in Missouri was courting controversy when it decided to publish an article on pregnancy among students naming names, as well as an article on students of divorced parents. The principal of the school censored both articles from the school paper. The student editors of the newspaper sued.
In 1988, the Supreme Court handed down its decision: a complete defeat for the students. The majority of the court claimed Tinker did not apply to this case, since the school newspaper was a school-sponsored activity. According to the Court, when an activity is school sponsored, school officials may censor speech as long as such censorship is reasonably related to legitimate educational concerns. The Court went on to define these concerns broadly, stating that school officials would have the right to censor material that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences, or inconsistent with shared values of a civilized social order."
The Supreme Court in Hazelwood did distinguish between school-sponsored publications and other activities, and publications and activities that were not school sponsored, which the Court suggested would be given greater free-speech leeway. Nevertheless, the Hazelwood decision was clearly a defeat for student free speech rights. School officials were now allowed to censor school newspapers, as well as other school sponsored activities such as theatrical productions, in "any reasonable manner."
Since Hazelwood, the Supreme Court has not tackled a non-religious free speech issue involving a public elementary or high school. Lower courts that have dealt with these issues have tended to follow Hazelwood's ruling pretty closely: a if a free speech case involves a school sponsored activity, school officials are given wide latitude. Since all but a few student free speech cases involve a school-sponsored activity, the effect has been that most free speech cases have gone against students, with some minor exceptions.
Lower courts have also determined that school officials have broad discretion at the elementary school level in controlling student speech, ruling in several cases that Tinker does not apply. However, most legal commentators believe that despite these developments, Tinker still remains in force, at least for high school students. School administrators are still required to show "material and substantial disruption" before limiting student speech in non-school sponsored activities.
