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99911155.docx§ 2:3. General Restrictions on Freedom of Speech in Schools
The United States Supreme Court has recognized that "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."1 The Court has repeatedly noted the importance of First Amendment protection in the school context, although often at the same time recognizing the power of school officials to control conduct in the schools.2 The Court, in an oft-quoted statement, noted:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years … On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. 3
Thus, while the Supreme Court has held that the state does not have a monopoly on the inculcation of values or beliefs,4 the Court also has recognized that schools have certain obligations that make the educational environment a special environment for purposes of First Amendment jurisprudence.5Courts and educational policy may have to take cognizance of these sometimes conflicting responsibilities that are given to schools. These responsibilities at least include the development of intellectual skills and literacy training, socialization, citizenry preparation to ensure the effective functioning of democracy, and the inculcation of community values. Recognition of these varying responsibilities may affect the scope of the protection given to freedom of expression in schools. In at least four major decisions, the Supreme Court has delineated the general parameters of constitutionally protected student expression in public school.6
In Tinker v. Des Moines School District, the Court addressed the question of student symbolic speech.7 In that case, students8 wore black armbands to school to express their opposition to the Vietnam War. The principals of the schools, having learned of the students' plan to wear the armbands, adopted a policy which stated that any student wearing an armband would first be asked to remove it, and upon refusal, would be suspended until the student returned without the armband. The students were aware of the school regulation and chose to wear the armbands anyway. Having refused to remove the armbands, the students were accordingly sent home and suspended until the agreed upon time for wearing the armbands had expired. The students, through their fathers, filed a complaint in federal court,9 seeking both an injunction to prevent the school authorities from disciplining the students and nominal damages.
In an opinion by Justice Fortas, the United States Supreme Court held that the policy violated the students' First Amendment rights.10 The Court reasoned that the wearing of the armbands was "closely akin to 'pure speech,'" holding that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students."11 Noting that in this particular case the students' expression neither disrupted schoolwork nor interfered with the rights of other students, the Court held that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."12 However, the Tinker Court also stated that behavior which "materially disrupts classwork or involves substantial disorder or invasion of the rights of others" is not constitutionally protected.13 School officials did not have to wait for the disruption to actually occur before taking action as a reasonable forecast of such disruption was sufficient.14 The Court found it relevant that the school officials had only banned armbands and that the school policy did not "prohibit the wearing of all symbols of political or controversial significance."15 The Court added that "[a] student's rights … do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions …"16 The “interferes with the rights of others” prong of the Tinkeranalysis is not as commonly used as the material and substantial disruption prong and there is some debate in the lower courts of its exact scope.16.50
Justice Black dissented.17 He voiced a concern that the judiciary was improperly limiting the decision-making authority of the school officials. He argued that greater deference should be given to the decisions of school authorities.18 Several members of the Supreme Court have echoed this concern to varying degrees in subsequent decisions.19
Even when certain student actions have not yet been disruptive, it may nevertheless be necessary to determine whether school officials can reasonably forecast substantial disruption under the circumstances, thus justifying censorship. In determining whether a school could reasonably forecast a substantial disruption, one district court has noted that the critical inquiry is “what the school officials knew [that would project the requisite substantial disruption], and the basis for that knowledge, at the time they disciplined” the students and banned the speech in question.20.10 Lower courts have found a school's forecast of substantial and material disruption to be reasonable in a variety of situations.20.15 One court has listed several factors to consider in determining whether speech has caused or is reasonably forecast to cause a substantial disruption including: (1) “the fact that students are discussing the speech at issue is not sufficient to create a substantial disruption, at least where there is no evidence that classroom activities were substantially disrupted;”20.20 (2) “[w]here a student's speech is violent or threatening to members of the school, several courts have found that a school can reasonably portend substantial disruption;”20.30; (3) “whether school administrators are pulled away from their ordinary tasks to respond to or mitigate the effects of a student's speech;”20.35and (4) “whether the school's decision to discipline is based on evidence or facts indicating a foreseeable risk of disruption, rather than undifferentiated fears or mere disapproval of the speech.”20.40 In the post-Columbine21 world, schools and courts may be more likely to respond to perceived threats of violence or disruption at school.22 Lower courts have reached varying conclusions with regard to the creation of a disruption under Tinker when students have posted material critical of or allegedly threatening toward teachers or other members of the school community on websites22.10 or in e-mails or have created graphic or textual material that may similarly affect members of the school community.22.20 Some courts have drawn a distinction between student conduct that occurs on or off campus in determining whether school officials may take action against the student.22.30 At least one court has observed that the ubiquitous use of social media by students may make the distinction between on-campus and off-campus speech increasingly meaningless.22.35 The Supreme Court's more recent decision in Morse v. Frederick 22.40 may impact some or all of these issues. Morse may arguably support a judicial willingness to extend school disciplinary authority over student expression that occurs beyond actual school property, at least when the expression involved poses a danger to students and when facts demonstrate that the expression occurred during the course of some kind of school sanctioned or supervised activity.22.50It has been held that "[a] school district can justify a policy where it can demonstrate a concrete threat of substantial disruption that is linked to a history of past events."23 At least one court has found that a school may be justified in proscribing the use of a particular word with certain sexual connotations as its use could reasonably lead to disruption, even though the message conveyed was a positive one.24 Another court allowed censorship of a student who refused to stop wearing a Confederate flag patch where there had previously been disruption caused by other displays of confederate flags, because officials were justified in anticipating that racial tension still existed.25 Still another court upheld the suspension of a student who drew a confederate flag during class in violation of school policy against racial harassment in a school with a history of racial tension.26 It has been noted that school officials could ban the display of the Confederate flag based on a reasonable forecast of disruption even where the display of that flag itself had not directly caused the previous disruptions involving racial tensions.26.05 Similarly, one court has held that a school did not violate students' First Amendment rights by forcing them to turn their shirts depicting the American flag inside out or go home with an excused absence because the school could reasonably forecast a substantial disruption between Mexican and Caucasian students in light of ongoing racial tension and gang violence at the school.26.06 Tinker also permitted restriction of speech in the school context when that speech invades the rights of others. One circuit, in construing this prong of the Tinker standard, stated that “[p]ublic school students who may be injured by verbal assaults [by other students] on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses.”26.10 The circuit court upheld the right of school officials to prohibit a student from wearing a T-shirt at school that bore a message of religious condemnation of homosexuality.26.20 Quoting Tinker's statement that students have the right to “be secure and to be let alone,” the circuit court stated that such security “involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society.”26.30 However, this opinion was vacated by the Supreme Court as moot.26.40 Subsequently, a different circuit held that students had the right to wear clothing with the phase “Be Happy, Not Gay,” noting that while “[s]chool authorities are entitled to exercise discretion in determining when student speech crosses the line between hurt feelings and substantial disruption of the educational mission, because they have the relevant knowledge of and responsibility for the consequences.” The attempted ban here was merely based on a speculative forecast of disruption and thus could not be upheld.26.41 Courts have also held that school athletic coaches must maintain discipline and thus student athlete's speech that undermines or challenges the coaches' authority may be deemed to be insubordinate and disruptive under the Tinker disruption standard.26.42 It is not clear whether Tinker and its progeny apply to the elementary school context.27 Even if they do apply, it has been recognized that a "school's authority to control student speech in an elementary school setting is undoubtedly greater than in a high school setting."28 Some recent lower courts have interpreted Tinker to apply only to content or viewpoint-based restrictions on student speech.28.50Lower courts have also cited language in the Tinker opinion itself to conclude that Tinker also does not apply when something other than pure speech or something akin to pure speech is involved.28.75These many uncertainties and varied conclusions have led to criticism of Tinker.28.80
Tinker remained the primary authority governing the scope of free expression in the schools until 1986 when the Supreme Court decided Bethel School District No. 403 v. Fraser.29 In Fraser, the Supreme Court retreated somewhat from its speech protective position in Tinker. The case involved a student who, on behalf of another student who was running for student office, gave a campaign speech during a school assembly that relied on sexual innuendo. Although his teachers had advised him against making this particular speech, the student delivered the speech during a school-sponsored educational program in self-government. Students were allowed to choose between attending the assembly or attending study hall.
The Supreme Court, in an opinion written by Chief Justice Burger, upheld the disciplinary action taken against the student reasoning that, unlike Tinker, the action taken was unrelated to the student's political viewpoint.30 The Court held that while students have constitutional rights in the school, those rights "are not automatically coextensive with the rights of adults in other settings."31 Accordingly, the Court upheld the authority of school officials to prohibit the speech because the form or manner of delivery of that speech was deemed inappropriate for the age of the particular school audience by the school authorities, even though the underlying message was permissible. The material in question was sexually explicit but neither obscene nor defamatory.32 The Court stated that "[t]he First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech … would undermine the school's basic educational mission."33 The Court concluded that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board."34 The school could "disassociate itself" from the speech in a manner that would show others that such vulgarity was "wholly inconsistent with the fundamental values of public school education."35
The reasonableness of such regulation of speech should be examined in light of the age and maturity of the students.36 The Court recognized "that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings."37 Lower courts have held that what is reasonably appropriate for college students may not be so for secondary school students.38 The determination of what constitutes lewdness or vulgarity is within the role of the school board rather than the courts.39 Thus, applying Fraser, lower courts have held that school officials may prohibit wearing t-shirts displaying non-disruptive, vulgar messages, even if the messages were political, or the substance of the message conveyed was one supported by the school.40 Other courts have upheld school prohibitions of wearing t-shirts that may negate a teacher as a role model or compromise the school's ability to teach substance abuse,41 prohibitions against uttering vulgar language directed at a teacher,41.50 and uttering vulgar language directed at another student.42 It is not completely clear whether Fraser applies to off-campus student speech.42.50 It has been held that Fraser may only apply to on-campus speech.42.60
Two years after Fraser, in Hazelwood Independent School District v. Kuhlmeier, the Supreme Court addressed the scope of First Amendment protection for school-sponsored speech.43 The HazelwoodCourt distinguished the personal student speech involved in Tinker from that upon which the school places its imprimatur. In Hazelwood, the high school principal unilaterally eliminated two stories from the official high school newspaper that was published by a journalism class under the supervision of a faculty advisor. The principal maintained that one story might invade the privacy of the two pregnant students interviewed and the other story, containing a student's negative comments about his father without giving the father an opportunity to respond, did not meet the standards of "journalistic fairness and balance."44
The Supreme Court held that school authorities may exercise editorial control over the style and content of student speech in school-sponsored activities, or speech that "members of the public might reasonably perceive to bear the imprimatur of the school"45 as long as the school restrictions are "reasonably related to legitimate pedagogical concerns."46 Chief Justice Roberts' opinion in Morseseems to suggest that something short of the Tinker disruption showing may be sufficient when the very serious issue of illegal drug use is involved.46.50 Justice White, writing for the Court, reasoned that "a school must be able to set high standards for the student speech that is disseminated under its auspices."47 He recognized the school's right to disassociate itself from speech it deems "poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences."48
The Hazelwood Court expressly distinguished Tinker, reasoning that Tinker only applies to behavior or speech that does not involve activities carrying the school's imprimatur.49 Because the wearing of armbands in Tinker did not implicate such an imprimatur, the school authorities in Tinker had less latitude to restrict this speech than did the school officials in Hazelwood with regard to articles in the official school newspaper. The Hazelwood Court reasoned that the message conveyed by wearing armbands in Tinker was the students' personal expression.50 In contrast, the articles published in the school newspaper in Hazelwood were officially sanctioned by the school, were given school course credit, and were produced under the supervision of a school faculty member.
The Hazelwood Court also held that the particular student newspaper in question did not constitute a public forum for expression.51 The Supreme Court has allowed varying degrees of restriction on speech based on the type of forum involved.52 Nonpublic forums provide the regulating officials with greater authority to restrict speech than do public forums.53 "Accordingly, school officials were entitled to regulate the contents of [the newspaper] in any reasonable manner."54
Subsequently, lower courts, embracing the Hazelwood court's restrictive view of Tinker, have often given a rather broad interpretation to what constitutes school-sponsored speech.55 There is some controversy whether school-sponsored speech must be viewpoint neutral.55.50 Lower courts have also given wide latitude to school officials' determination of what constitutes a "legitimate pedagogical concern,"56 finding the existence of such concerns in many different situations.57 At least one court, however, has stated that a school board's motives in removing books from the curriculum should be examined before accepting the proffered pedagogical justification.58 A few states have also passed legislation granting editorial control of school-sponsored newspapers to student editors, thus granting students greater free speech rights than those set forth in the Hazelwood decision.59
Although after Hazelwood the speech in Fraser may be seen as "school-sponsored" speech, the Fraser standard may nevertheless prohibit vulgar, lewd, or plainly offensive speech that is not school-sponsored.60 Thus, courts have generally applied the Hazelwood standard to all school-sponsored speech, leaving Fraser and Tinker to determine when private student speech may be restricted.61Lower courts have accordingly held that school authorities could restrict vulgar student personal speech either because the manner of expression was inappropriate62 or because disruption could be reasonably forecast given the manner or content, including sexual connotations, of the expression.63It is also important to note that both the Hazelwood and Fraser standards will generally allow school officials to restrict vulgar, lewd, or plainly offensive speech.64 Also, a distinction should be made between school-sponsored speech and the speech of the school itself.65
The Supreme Court's most recent decision involving the scope of student speech in the K-12 public school context was issued on June 25, 2007 in Frederick v. Morse.65.01 While the decision was an immediate victory for school administrators, its full implications remains to be seen.65.015 Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito, concluded that school officials could discipline a student for unfurling a banner with the message “BONG HITS 4 JESUS.” The Chief Justice held that the student's speech in question, despite its at least arguable ambiguity,65.02 could reasonably be construed by the principal to be a message that promoted illegal drugs in violation of school policy. The student maintained that the banner did not send such a message and that he had used the phrase simply to get media attention. The Court dismissed the student's explanation as merely “a description of his motive for displaying the banner … [and] not an interpretation of what the banner says.”65.03 The speech occurred during a school-sanctioned activity that was supervised by faculty and administrators. The event occurred during normal school hours and the school district's rules expressly applied to such “school approved social events and class trips.”65.04 The Court held that the school had authority to restrict the message in this context without violating the free speech guarantee of the First Amendment. The student had refused to take the banner down. The banner was confiscated by the principal who later suspended the student.
Despite its reaffirmation that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”65.05 the Court, citing its previous decision in Bethel School Dist. No. 403 v. Fraser,65.06 also stressed that such speech rights were not the same as the rights of adults exercised elsewhere.65.07 The Morse Court reiterated its previous holding “that the rights of students ‘must be “applied in light of the special characteristics of the school environment.”’65.08
The Court noted that in Tinker “[t]he students sought to engage in political speech.”65.09 The Court stated that not even the student in Morse argued that the banner conveyed any political or religious message.65.10 The Morse Court characterized the speech in Tinker as “a silent passive expression of opinion, unaccompanied by any disorder or disturbance.”65.11
The Court also acknowledged that “[t]he mode of analysis employed in Fraser is not entirely clear.”65.12 Thus, the Court indicated that its Fraser decision seems to be aware of both the content and the manner of the speech at issue. The Court concluded, however, that it was not necessary to “resolve this debate to decide”65.13 the case now before it in Morse as “it is enough to distill from Fraser two basic principles,”65.14 First, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings”65.15 and second, “the mode of analysis set forth in Tinker is not absolute” as Fraser did not use Tinker's substantial disruption analysis.65.16 The Court also stated that the Court's most recent major student speech case before Morse, Hazelwood School Dist. v. Kuhlmeier, did not control the Morse case because no one would think that the student's banner in the Morse case “bore the school's imprimatur,” but like Fraser, Hazelwood also confirmed these same two principles.65.17
The Morse Court observed that it had “draw[n] on the principles applied in our student speech cases” in holding in the Fourth Amendment context that “‘the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.’”65.18 The Court's Fourth Amendment decisions involving the student drug problem “recognize that deterring drug use by schoolchildren is an ‘important-indeed, perhaps compelling’ interest.”65.19 Thus, “the government interest in stopping student drug abuse-reflected in the policies of Congress and myriad school boards … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.”65.20
The Court also reaffirmed the principle that a school may not prohibit student speech solely because the speech is “offensive.” The Court stated that this would “stretch[] Fraser too far” as “[t]he concern here is not that … [the student's] speech was offensive, but that it was reasonably viewed as promoting illegal drug use.”65.21
Two factors seem to dominate the Chief Justice's reasoning. First, even though such speech occurs off campus, it could be viewed in the same way as speech that actually occurs on campus as long as students are viewed as within the control and supervision of school authorities. Second, while acknowledging the existence of some speech rights at school, the Court seems to be willing to give great deference to school administrators' construction of the meaning of the student's message, at least when that message involves such dangerous activities as the promotion of illegal drugs. Whether the extent of such deference in determining the meaning or significance of an arguably ambiguous student message will extend beyond the drug context remains to be seen.65.22
The Morse Court also seemed to indicate that some viewpoint discrimination could be permissible in the special context of the school. Noting that Justice Stevens, in dissent, criticized the Court's opinion for “authorizing ‘viewpoint discrimination,’”65.23 Justice Roberts stated that even “the dissent concludes that ‘it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting.’”65.24 Moreover, the Court noted that it did not think that the dissent would require schools “to tolerate student advocacy of illegal drug use at school events, even if that advocacy falls short of inviting ‘imminent’ lawless action,” thus indicating that the “‘rigid imminence requirement” may possibly have “to be relaxed at schools.’”65.25 The dissent, however, argued that while restriction on speech that advocates drug use may be permissible, it is not permissible “to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy.”65.26
Finally, the Court concluded that “the issues here are close enough” that even the dissent would find that the principal should be given qualified immunity.65.27 The Court saw the difference between it and the dissent as based not on First Amendment principles, but simply on whether the student's “banner constitutes promotion of illegal drug use” and that “[t]he dissent's contrary view on that relatively narrow question hardly justifies sounding the First Amendment bugle.”65.28
Justice Thomas, in a concurring opinion, stated that he joined the Court's opinion because he saw it as “erod[ing] Tinker's hold in the realm of student speech” by “adding to the patchwork of exceptions to the Tinker standard.”65.29 However, he would have rather “dispens[d] with Tinker altogether.”65.30Justice Thomas' historical view of education from the colonial era to the development of public schools and in particular the development of the concept of in loco parentis, led him to conclude that the First Amendment does not eliminate the control that public schools had traditionally retained over the student conduct. If parents do not like the rules so imposed by the schools, they can seek change through the political process. Tinker erroneously “substituted judicial oversight of the day-to-day affairs of public schools” and “made little attempt to ground its holding in the history of education or in the original understanding of the First Amendment.”65.31 Justice Thomas argued that “the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”65.32
Justice Alito's concurring opinion, in which Justice Kennedy joined, emphasized the narrowness of the Court's decision. He thus characterized the Court's decision as holding no more than that “a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use” and that that the decision does not restrict “speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”65.33 He did not read the Court's opinion as authorizing any more control over student speech than the Court's previous opinions had allowed. He therefore made clear that he joined the Court's opinion “on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.”65.34 This reasoning has prompted some to argue that the Morse decision may not preclude constitutional protection for other forms of student speech, like student religious speech. At least one lower federal circuit court has stated that the Supreme Court's decision in Morse, specifically Justice Alito's concurring opinion in that case, allows school officials greater authority to intervene before student speech leads to violence than would generally be permitted by Tinker under other circumstances.65.35 Such latitude for intervention by school officials would only be permissible in those limited circumstances where “the heightened vulnerability of students arising from the lack of parental protection and the close proximity of students with one another make schools places of “special danger” to the physical safety of the student.”65.36
Justice Alito also rejected the argument made by the school that “the First Amendment permits public school officials to censor any student speech that interferes with a school's ‘educational mission’” as that “would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed.”65.37 Justice Alito also rejected the argument that public school officials should be treated “as if they were private, nongovernmental actors standing in loco parentis.”65.38 In contrast to Justice Thomas, Justice Alito reasoned that “[i]t is a dangerous fiction to pretend that parents simply delegate their authority—including their authority to determine what their children may say and hear—to public school authorities.65.39 Thus, Justice Alito maintained that “any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.”65.40
Justice Breyer, concurring in the judgment in part and dissenting in part, would have held that the principal was entitled to qualified immunity and that the First Amendment issue therefore need not have been decided.65.41 The Chief Justice argued that Justice Breyer's approach would not be sufficient as the student had sought injunctive and declaratory relief as well as damages. Thus, holding that the principal was immune would not resolve these other claims for relief.65.42 The Chief Justice noted that Justice Breyer had countered this concern by noting that the student could have been punished on non-speech-related grounds.65.43 The Chief Justice responded to this argument by stating that none of the parties had made such an argument below, that none of the lower courts had considered this argument, and that the record did not support such a conclusion.65.44
In a strong dissent, Justice Stevens, joined by Justices Souter and Ginsburg, would agree that the principal should not be held liable for taking down the student's banner, but would not allow the school to discipline the student for his “oblique reference to drugs,” which should be protected by the First Amendment. That Amendment's free speech guarantee “protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students,” and “[t]his nonsense banner does neither.”65.45
The precise scope and meaning of Morse remains to be worked out. Morse raises several questions. Is the Court articulating a new test or merely an adaptation of Tinker for certain dangerous situations? Put more simply, does Morse leave Tinker wholly intact and if not, how much of Tinker is eroded?65.46 The answer to such questions may well depend upon which Justice is asked. Chief Justice Roberts' opinion in Morse seems to suggest that something short of the Tinker disruption showing may be sufficient when the very serious issue of illegal drug use is involved. Justice Thomas saw the Court's decision as “erod[ing] Tinker's hold in the realm of student speech … by adding to the patchwork of exceptions to the Tinker standard.”65.47 Will this concept of danger be expanded to circumstances beyond illegal drug use?65.48 At least two Justices who joined the Court's opinion only after emphasizing their understanding of the narrowness of the Court's holding, exhibited a degree of nervousness about any such extension.65.49 Arguably, Morse does not affect Tinker's level of protection for other kinds of student speech, including, but not limited to, speech involving religion. Justice Stevens, dissenting, seems worried about Tinker's health. Additionally, there is some question as to the extent to which Morse supports the argument that viewpoint neutrality may not always be required in the school context, even when the speech in question is not school-sponsored. Some district courts have construed Morse to allow school officials to restrict any student speech that “promotes unlawful behavior.”65.50
Subsequent to Morse, a lower court “address[ed] those societal concerns articulated” by the Supreme Court in Morse to uphold the validity of a school's anti-drug policy that required parents to give their written consent to the enforcement of the school's drug policy as a predicate to their child being allowed to participate on a school sports team.65.51 The court stated that the school did not violate the First Amendment when it denied the right of a child to participate on a team when her father signed an unaltered consent form, but accompanied the form with a letter that stated that the form was signed “under duress.” The court noted that the school's interest here not only involved prohibiting speech that advocated illegal activity as in Morse, but involved its interest in prohibiting the student's actual participation in illegal drug or alcohol use.65.52 The court stated that the school was not censoring the father's speech, but was seeking an affirmation that the student's conduct would comply with the anti-drug use policy.65.53 The court denied the father's motion for a preliminary injunction as he failed to show that the school's “insistence on full parental consent to the Policy's disciplinary and remedial scheme is not rationally related to the paramount goal of deterring underage drug and alcohol consumption.”65.54
On appeal, the Third Circuit Court of Appeals affirmed the judgment of the district court stating that requiring the father to sign the Student Activities Permission Form did not constitute compelled speech and “[p]redicating student participation in extracurricular activities on a parent's unconditional consent to such a form does not infringe a parent's First Amendment rights.”65.55 The Third Circuit also emphasized that there was no evidence that the father's ability to criticize the policy had in any way been inhibited.65.56
In summary, the Supreme Court quartet of Tinker, Fraser, Hazelwood, and Morse now governs the scope of constitutionally protected student free expression in the school context.66 It has also been held that the right to receive information is a “corollary” to the guarantee of free speech and such right has particular importance for students.66.10 States and schools retain legislative authority and state constitutional authority to expand the protection for student expression beyond that mandated by the federal Constitution.67 Courts may differ in deciding whether or to what extent free speech protection extends to elementary school students.67.50 The Tinker Court stated that teachers and students retain their constitutional right to freedom of expression inside the schoolhouse gates. The TinkerCourt also noted the “special circumstances” of the school environment, indicating, as Fraser, Hazelwood, and Morse all subsequently illustrate, that the scope of federal constitutional protection of student free speech rights is more limited in the school context than outside of it.68 The Fraserdecision also demonstrates that limits may be placed upon the speech that is deemed to be lewd or contrary to notions of decency or civility.
Under Morse, school officials are given great deference in construing the meaning of student speech to determine whether it poses a danger to students, although presumably under fairly limited circumstances, and then given significant latitude in disciplining the student speaker. Whether Morsetruly sets forth a new analytical framework for certain types of student speech or whether it will end up being something more like a special subset of Tinker, to be used only under certain particular circumstances, is not yet really clear.68.5 remains to be seen. Finally, under Hazelwood, school officials have significant authority to regulate the content of school-sponsored speech. In light of these decisions, school officials may constitutionally suppress or limit student speech that may otherwise be protected under the First Amendment where: (1) officials reasonably forecast that such speech will cause a material disruption of, or a substantial interference with, the operation of the school, or will interfere with the rights of others, although mere undifferentiated fear or apprehension of such disruption is insufficient to warrant restriction of students' right to freedom of expression; (2) the student speech is lewd, indecent, or plainly offensive considering the age and maturity of the students; or (3) the speech may be reasonably be construed by school officials to advocate illegal drug use or pose a danger to students (4) the student speech may reasonably be perceived to bear the imprimatur of the school and its suppression is reasonably related to legitimate pedagogical concerns. The distinction between speech bearing the school's imprimatur and nonschool-sponsored speech has become an essential criterion for determining the scope of constitutionally permissible limitations on student expression.
Topic Summary | Correlation Table | References
West's Key Number Digest
· West's Key Number Digest, Schools 170.1, 171, 173
A.L.R. Library
· First Amendment Protection Afforded to Blogs and Bloggers, 35 A.L.R.6th 407
The First Amendment of the United States Constitution 1 protects the free-speech rights of students in school. 2 Students do not shed their constitutional rights to freedom of speech and freedom of expression at the schoolhouse door. 3 However, public schools have an interest of constitutional dignity in being allowed to manage their affairs and shape their destiny free of minute supervision by federal judges and juries. 4
Thus, high school students may be more strictly curtailed in the mode of their expression than college students or adults, 5 and the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. 6 Instead, the constitutional rights of students in public school must be applied in a manner consistent with the special characteristics of the school environment. 7 Put another way, schools may regulate some speech even though the government could not censor similar speech outside the school. 8
A state statute protecting student expression may provide greater free-speech protection to students than that provided by the First Amendment. 9 However, such a state statute may be construed to apply only to written publications. 10
CUMULATIVE SUPPLEMENT
Cases:
The First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. U.S.C.A. Const.Amend. 1 . Cuff ex rel. B.C. v. Valley Cent. School Dist., 2012 WL 954063 (2d Cir. 2012) .
A public school has the power to regulate speech to prevent problems before they occur, and the school is not limited to prohibiting and punishing conduct only after it has caused a disturbance. U.S.C.A. Const.Amend. 1 . Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013) .
School's prohibition of "sexually oriented" electronic messages was not unconstitutionally vague in violation of due process. U.S.C.A. Const.Amend. 14 . S.N.B. v. Pearland Independent School Dist., 120 F. Supp. 3d 620 (S.D. Tex. 2014) .
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