School speech (First Amendment)
The issue of school speech or curricular speech as it relates to the First Amendment to the United States Constitution has been the center of controversy and litigation since the mid-20th century. The First Amendment's guarantee of freedom of speech applies to students in the public schools. In the landmark decision Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court formally recognized that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".
The core principles of Tinker remain unaltered, but are tempered by several important decisions, including Bethel School District v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick. Despite respect for the legitimate educational interests of school officials, the Supreme Court has not abandoned Tinker; it continues to recognize the basis precept of Tinker that viewpoint-specific speech restrictions are an egregious violation of the First Amendment. In Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court declared: "Discrimination against speech because of its message is presumed to be unconstitutional". Rosenberger held that denial of funds to a student organization on the sole basis that the funds were used to publish a religiously oriented student newspaper was an unconstitutional violation of the right of free speech guaranteed by the First Amendment. Accordingly, for other on-campus speech that is neither obscene, vulgar, lewd, indecent, or plainly offensive under Fraser nor school-sponsored under Hazelwood nor advocating illegal drugs at a school-sponsored event under Frederick, Tinker applies limiting the authority of schools to regulate the speech, whether on or off-campus, unless it would materially and substantially disrupt classwork and discipline in the school.
Tinker v. Des Moines
Bethel School District v. Fraser
In Fraser, a high school student was disciplined following his speech to a school assembly at which he nominated a fellow student for a student elective office. The speech contained sexual innuendos, but not obscenities. The Supreme Court found that school officials could discipline the student. In doing so, it recognized that "the process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order". Recognizing that one of the important purposes of public education is to inculcate the habits and manners of civility as valued conducive both to happiness and to the practice of self-government, the Supreme Court emphasized that "consciously or otherwise, teachers—and indeed the older students—demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class". Under the Fraser standard, school officials look not merely to the reasonable risk of disruption—the Tinker standard—but would also balance the freedom of a student's speech rights against the school's interest in teaching students the boundaries of socially appropriate behavior. Schools have discretion to curtail not only obscene speech, but speech that is vulgar, lewd, indecent, or plainly offensive.
Hazelwood v. Kuhlmeier
The Hazelwood School District case applies the principles set forth in Fraser to curricular matters. In Hazelwood, the Supreme Court upheld a school's decision to censor certain articles in the school newspaper which was produced as part of the school's journalism curriculum. Echoing Fraser, the Supreme Court observed that "[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". School authorities and 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 concerns.
Morse v. Frederick
Morse v. Frederick blends Fraser and Hazelwood, applying them to a school-sanctioned event or activity. While students were along a public street in front of school watching the Olympic Torch Relay pass through, Frederick unfurled a banner bearing the phrase: "BONG HiTS [sic] 4 JESUS". The banner was in plain view of other students. The high school principal seized the banner and suspended Frederick because the banner was perceived to advocate the use of illegal drugs. The Supreme Court held that a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Not only was a school activity involved, but the banner's promotion of illegal drugs was contrary to the school's policy or mission to prevent student drug abuse.
The right of free speech is not itself absolute: the Court has consistently upheld regulations as to time, place, and manner of speech, provided that they are "reasonable". In applying this reasonableness test to regulations limiting student expression, the Court has recognized that the age and maturity of students is an important factor to be considered.
In the school context, the United States Supreme Court has identified three major relevant considerations:
- The extent to which the student speech in question poses a substantial threat of disruption (Tinker v. Des Moines Indep. Cmty. Sch. Dist.).
- Whether the speech is sexually vulgar or obscene (Bethel School District v. Fraser).
- Whether the speech, if allowed as part of a school activity or function, would be contrary to the basic educational mission of the school (Hazelwood v. Kuhlmeier).
Each of these considerations has given rise to a separate mode of analysis, and in Morse v. Frederick the Court implied that any one of these may serve as an independent basis for restricting student speech.
The problem of disruption is perhaps the most fundamental issue addressed by the courts in student free speech cases.
The second major question addressed by the courts is closely related to, but nevertheless distinct from, the question of disruption. This is the question of speech which is offensive to prevailing community standards by reason of being vulgar, lewd, or indecent speech. Courts have held that offensiveness is a question of whether speech is plainly offensive in terms of sexual content or implication, rather than simply expressing ideas and beliefs considered offensive by some or most students or members of the community. See Saxe v. State College Area School District. In Bethel School District v. Fraser, the Supreme Court recognized the special responsibility of the public schools to inculcate moral values and to teach students the boundaries of socially acceptable behavior. It therefore permitted a public school to discipline a student for making sexually suggestive remarks in an address to a school assembly, even though the remarks were not obscene in the traditional sense.
The ability to regulate inappropriate speech has been found to be especially important in situations where the student speech may have the appearance of being sponsored or endorsed by the school.
In Bethel, the Court held that the offensiveness test does not apply to off-campus speech.
Impairing educational mission
The third major area of concern addressed in student free speech cases is whether a particular instance of student speech may be viewed as impairing the school's ability to carry out its educational mission. This concern arises where the speech in question occurs in connection with a school-sponsored or school-controlled activity but is inconsistent with a legitimate pedagogical concern. In such circumstances, the United States Supreme Court has found that student speech may be regulated. For example, in Hazelwood School District v. Kuhlmeier, it held that a school may exercise control over the content of a student newspaper when it attempts to address issues of divorce and teenage pregnancy; in Morse v. Frederick, it permitted a school to exercise control over the words displayed on a large banner at a school-sponsored event, when those words convey a message promoting the use of illegal drugs.
One of these factors is whether the activity sought to be controlled is "pure speech", or sufficiently related to the expression of ideas to fall under the umbrella of the First Amendment. "Pure speech" does not need to involve words but is generally represented by symbols or actions.
Focus of protected speech activity
The focus of the protected speech activity, whether pure speech or not, may affect the propriety of regulation by school officials.
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 506.
- 3-9 EDUCATION LAW § 9.04 (CHAPTER 9 Student Safety, Control and Discipline) -- Copyright 2008, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
- Bethel School Dist. No. 403 v. Fraser, 478 US 675, 92 LEd2d 549, 106 SCt 3159 (1986).
- Hazelwood School District v. Kuhlmeier, 484 US 260, 98 LEd2d 592, 108 SCt 562, (1988)
- Bates v. State Bar of Ariz.; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council; Healy v. James (school case); Grayned v. City of Rockford; Adderley v. Florida; Cox v. Louisiana; Kovacs v. Cooper; Cox v. New Hampshire
- 1-9 Ohio School Law Guide § 9.74. Anderson's Ohio School Law Guide. CHAPTER 9: PUPILS. G. PUPIL REGULATION AND DISCIPLINE
- Bethel School Dist. 403 v. Fraser; Morse v. Frederick
- Hazelwood School District v. Kuhlmeier
- Broussard v. School Board of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992)
- Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)
- Desilets v. Clearview Regional Board of Education, 647 A.2d. 150 (N.J. 1994)
- Dean v. Utica Community Schools, 345 F.Supp.2d 799 (E.D. Mich. 2004)