the first amendment and public schools
DESCRIPTION
Until 1969, First Amendment freedoms were not considered to apply seriously to school-age children. However, the 1969 Supreme Court ruling in Tinker v. Des Moines Schools changed everything. Suddenly, students did not shed their constitutional rights at the schoolhouse gates, as Justice Abe Fortas famously wrote. This slide presentation reviews the four major Supreme Court decisions that shape today's so-called school speech.TRANSCRIPT
The First Amendment and Public Schools
Key Supreme Court Cases
Tinker v. Des Moines, 1969Bethel v. Fraser, 1986
Hazelwood v. Kuhlmeier, 1988Morse v. Frederick, 2007
Tinker v. Des Moines Schools
Tinker v. Des Moines Schools
In December 1965, Sen. Robert Kennedy called for a truce in the Vietnam War
Tinker v. Des Moines Schools
Several students and their parentssupported the truce proposal.
Tinker v. Des Moines Schools
The Tinkers were a family of peace activists
Tinker v. Des Moines Schools
The students decidedto show support for the truce
by wearing...
Tinker v. Des Moines Schools
Tinker v. Des Moines Schools
The students setThursday, Dec. 16, 1965,as the day they would all
wear black armbandsin support of the truce
Tinker v. Des Moines Schools
Getting wind of the plan,the district's secondary school principals
met on Tuesday, Dec. 14, andagreed to suspend any student
who refused to remove an armband
Tinker v. Des Moines Schools
(Not the actual Des Moines principals)
Tinker v. Des Moines Schools
Five students were suspended for wearing armbands.
Three of them took their case all the way to the U.S. Supreme Court:
Christopher Eckhardt, 16 John Tinker, 15 Mary Beth Tinker, 13
Tinker v. Des Moines Schools
Tinker v. Des Moines Schools
The big question:
Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?
Tinker v. Des Moines Schools
The court began by asking itself:
Tinker v. Des Moines Schools
The court began by asking itself:
Were the black armbands a form of symbolic speech protected by the First Amendment?
Tinker v. Des Moines Schools
The answer:
Yes, the armbands were a form of symbolic speech protected by the First Amendment.
Tinker v. Des Moines Schools
The court then asked itself:
Does a school have the power to restrict that speech in the interest of maintaining order?
Tinker v. Des Moines Schools
The answer:
Yes, if that speech posed... “A material and substantial interference with
schoolwork or discipline” or An invasion of other people's rights
Tinker v. Des Moines Schools
The court ruled that the armbands did NOT pose:
“A material and substantial interference with schoolwork or discipline” or
An invasion of other people's rights
Tinker v. Des Moines Schools
Therefore, in 1969,the Supreme Court ruled 7-2
in favor of the students
Tinker v. Des Moines Schools
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
– Justice Abe Fortas
Champion of children's rights
Summarizing School Speech
“Tinker” still stands:Students are free to speak
unlessthe speech interferes substantially
with schoolwork or discipline.
Summarizing School Speech
However...
Summarizing School Speech
Subsequent Supreme Court decisions have eroded away some of Tinker's protections
Bethel v. Fraser
Bethel v. Fraser
The scene:
Bethel High School Spanaway, Wash., 1983 A 600-student assembly Matthew Fraser, a senior, nominated a fellow
student for student body vice president
Bethel v. Fraser
The speech was filled with sexual innuendos
Bethel v. Fraser
Bethel v. Fraser
Fraser was disciplined for violatingthe school's “disruptive conduct rule”
Bethel v. Fraser
Fraser's discipline consisted of the following: Three-day suspension Prohibition from speaking at graduation Removal from the ballot used to elect three
graduation speakers
Bethel v. Fraser
The school defined “disruptive conduct”as conduct that substantially interferes
with the educational process,including the use of obscene,profane language or gestures.
Bethel v. Fraser
Fraser filed a federal lawsuitagainst the Bethel School District,
alleging violation of hisFirst Amendment rights
Bethel v. Fraser
The U.S. District Court in Seattle ruled in favor of Fraser.
The Ninth Circuit Court of Appeals in San Francisco ruled in favor of Fraser.
Bethel School District appealed to the U.S. Supreme Court.
Bethel v. Fraser
The big question:
Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?
Bethel v. Fraser
The court first asked itself:
Was Matthew Fraser's speech the highest form of protected speech?
That is, was it pure speech, mixed speech-and-action, or symbolic speech?
Bethel v. Fraser
The answer:
No, it was lower-valued speech because of its profane, erotic content.
Bethel v. Fraser
The answer:
No, it was lower-valued speech because of its profane, erotic content.
Lower-valued speech gets intermediate scrutiny from the court.
Bethel v. Fraser
Intermediate scrutiny means:
The law furthers an important government interest. The government's interest is unrelated to
suppression of free expression. The restrictions imposed are no greater than
necessary.
Bethel v. Fraser
In 1986, the Supreme Court ruled 7-2in favor of Bethel School District
Bethel v. Fraser
The court ruled that:
Schools had an important interest in shielding younger children from vulgar and lewd speech.
Vulgar and lewd speech was inconsistent with the “fundamental values of public school education.”
Hazelwood v. Kuhlmeier
Hazelwood v. Kuhlmeier
The scene:
Hazelwood East High School Hazelwood, Mo., 1983 The Spectrum, Hazelwood's student newspaper,
prepares to publish articles on teen pregnancy and divorce
The paper changed names of the quoted students to protect their identities
Hazelwood v. Kuhlmeier
“Sixteen-year-old Sue had it all — good looks, good grades, a loving family and a
cute boyfriend. She also had a seven pound baby boy.”
Hazelwood v. Kuhlmeier
The school principal killed the articlesbefore they could be published,fearing the students could be identified
Hazelwood v. Kuhlmeier
The principal also felt that
younger students should not be
exposedto discussions of
birth controland that parents
should be allowedto respond to articles about
divorce
Hazelwood v. Kuhlmeier
Spectrum Editor Cathy Kuhlmeier andreporters Leslie Smart and Leanne Tippettfiled a federal lawsuit, alleging violation
of their First Amendment rights
Hazelwood v. Kuhlmeier
The U.S. District Court in St. Louis ruled against the students, saying that schools had a right to censor student speech if: The activities were “integral” to the school's
educational function, and The censorship has “a substantial and
reasonable basis”
Hazelwood v. Kuhlmeier
The Eighth Circuit Court of Appeals, also in St. Louis, overruled the district court in favor of the students.
Hazelwood v. Kuhlmeier
The Eighth Circuit Court of Appeals, also in St. Louis, overruled the district court.
The appeals court declared that The Spectrum was a public forum, “intended to be and operated as a conduit for student viewpoint”
Hazelwood v. Kuhlmeier
The Eighth Circuit Court of Appeals, also in St. Louis, overruled the district court.
The appeals court declared that The Spectrum was a public forum, “intended to be and operated as a conduit for student viewpoint”
Public forums require that courts use strict scrutiny when reviewing a law's constitutionality
Hazelwood v. Kuhlmeier
Strict scrutiny requires that the law be:
Hazelwood v. Kuhlmeier
Strict scrutiny requires that the law be: Necessary to achieve a compelling government
interest.
Hazelwood v. Kuhlmeier
Strict scrutiny requires that the law be: Necessary to achieve a compelling government
interest. Narrowly tailored to achieve the intended result.
Hazelwood v. Kuhlmeier
The question for the Supreme Court:
Who was right: the district court, which supported the schools, or the appeals court, which supported the students?
Hazelwood v. Kuhlmeier
The court considered the Tinker decision:
Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Hazelwood v. Kuhlmeier
The court also considered the Bethel decision:
“A school need not tolerate student speech that is inconsistent with its basic educational mission.”
Hazelwood v. Kuhlmeier
To reach its decision, the court needed to answer the question at the heart of the case:
Was The Spectrum a “public forum”?
Hazelwood v. Kuhlmeier
In other words,was The Spectrum considered
a place where studentsopenly exchanged viewpoints?
Hazelwood v. Kuhlmeier
If The Spectrum was a public forum,the principal's censorship would have to pass
the highest standard of strict scrutiny
Hazelwood v. Kuhlmeier
The court's answer:
No, Hazelwood's student newspaper was NOT a “public forum.”
School-sponsored newspapers, theatrical productions and other school-sponsored expression was lower-valued speech, subject to restrictions.
Hazelwood v. Kuhlmeier
The court said that as long as...
Hazelwood v. Kuhlmeier
The court said that as long as... The activity is sponsored by the school
Hazelwood v. Kuhlmeier
The court said that as long as... The activity is sponsored by the school The school's actions are reasonably related to
legitimate “pedagogical” (educational) concerns, and
Hazelwood v. Kuhlmeier
The court said that as long as... The activity is sponsored by the school The school's actions are reasonably related to
legitimate “pedagogical” (educational) concerns, and
The activity or publication is not a public forum for student expression...
Hazelwood v. Kuhlmeier
Then...
Hazelwood v. Kuhlmeier
Schools can censor student speech that is... Ungrammatical Poorly written Inadequately researched Biased or prejudiced Vulgar or profane Unsuitable for immature audiences, or Advocates “conduct otherwise inconsistent with the
shared values of the civilized social order”
Hazelwood v. Kuhlmeier
The court's decision was 5-3
in favor of the school district
Hazelwood v. Kuhlmeier
Does the Hazelwood decisionapply to all schools?
Hazelwood v. Kuhlmeier
No
“Hazelwood” does not apply to schools that let their student publications operate as public forums, in which students make all decisions about content.
Hazelwood v. Kuhlmeier
Public-forum publications can be censored...
ONLY
...if the school can show they will cause a “material and substantial disruption” of school activities
Hazelwood v. Kuhlmeier
Schools also cannot censor student publications published off-campus without school sponsorship
Morse v. Frederick
Morse v. Frederick
The scene:
Juneau, Alaska, 2002 Olympic Torch Relay attended by Juneau-Douglas
High School students as a field trip Joseph Frederick, a senior, unfurled a banner saying
“Bong Hits 4 Jesus” The principal told Frederick to put away the banner.
He refused.
Morse v. Frederick
The principal confiscated the banner and suspended Frederick for 10 days.
She said Frederick's actions violatedschool policy, which forbids advocating
the use of illegal drugs.
Morse v. Frederick
Frederick filed a federal lawsuit againstthe school principal, Deborah Morse.
Morse v. Frederick
The question for the courts:
Can school authorities stop students from expressing views that may be interpreted as promoting illegal drug use?
Morse v. Frederick
The U.S. District Court in Alaska ruled in favor of Morse, the principal.
The Ninth Circuit Court of Appeals in San Francisco ruled in favor of Frederick, the student.
The principal appealed to the U.S. Supreme Court.
Hazelwood v. Kuhlmeier
Once again, the court considered the Tinker decision:
Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Hazelwood v. Kuhlmeier
The court also considered the Bethel decision:
“A school need not tolerate student speech that is inconsistent with its basic educational mission.”
Hazelwood v. Kuhlmeier
The court also considered the Kuhlmeier decision:
The rights of students are applied “in light of the special characteristics of the school environment”
Morse v. Frederick
In 2007, the Supreme Court ruled 6-3in favor of Morse, the school principal
Morse v. Frederick
The court's reasoning: The speech was not political in nature “Bong Hits 4 Jesus” reasonably could be
viewed as promoting illegal drug use The school had an “important” if not
“compelling” interest in prohibiting or punishing student speech that promotes illegal drug use
Morse v. Frederick
Justice Clarence Thomas further argued that “Tinker” should be overturned.
He said the First Amendment was not meant to protect student speech in public schools.
Morse v. Frederick
Justices Anthony Kennedy and Samuel Alito cautioned that the decision could be used to punish those advocating constitutionally permissible, but unpopular, political ideas, such as legalizing medical marijuana use.
Morse v. Frederick
Justice John Paul Stevens disagreed with the majority because: The school banned speech
based on its content. Frederick's banner was too
vague to assume it promoted illegal drug use.
Summarizing School Speech
“Tinker” still stands: Students are free to speak unless the speech interferes substantially with schoolwork or discipline – and except if the speech is: Lewd (“Bethel”) Takes place in a school-sponsored publication or
performance (“Hazelwood”) Promotes illegal drug use (“Morse”)