Secondary School Students and Freedom of Speech
Larry L. Kraus
The University of Texas at Tyler
“The freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by a
despotic government.” Thomas Jefferson
“Freedom of the press is guaranteed only to those who own one.” A. J. Liebling
In December, 1965, John Tinker, 15, his sister Mary Beth Tinker, 13, and their friend Christopher Eckhardt, 16, entered their respective schools wearing black armbands. John and Christopher were high school students; Mary Beth was a junior high school student. Their purpose was to show their opposition to the Vietnam War. Principals in the Des Moines, Iowa, schools apparently heard a rumor that the Tinkers and Eckhart were planning the protest and quickly met to pass a policy prohibiting the wearing of armbands at school. All three students chose to violate this ban and wore their armbands to school. All three students were suspended from school until January.
John and Mary Beth’s parents were social activists, and were involved in the Civil Rights Movement in 1964. Mr. Tinker was a Methodist minister who tried to teach his children to put religious ideals into action. When John, Mary Beth, and Christopher were suspended from school, the Tinker family filed suit against the Des Moines public schools for violation of their First Amendment rights. The parents lost their case in the U.S. District Court, but received a tie vote when the case was appealed to the U.S. Court of Appeals. This tie allowed the students to further appeal their case to the United States Supreme Court, which heard the case on November 12, 1968.
The decision, published in February, 1969, had an immediate and substantial impact on public schools. Interestingly, the case was decided almost eight months before the Vietnam Moritorium Day, in October, 1969. The majority opinion, written by Justice Abe Fortus, held that the Des Moines restrictions on wearing armbands to protest the war infringed upon the students Constitutionally protected speech. The opinion even went further, formally extending freedom of speech to students in public schools:
"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 schools, the prohibition cannot be sustained. . . .In our system, state operated schools may not be enclaves of totalitarianism. 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, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views." (Tinker v. Des Moines, 1969)
Within just a few years, high school newspaper writers were using Tinker as justification for printing and publishing a wide array of articles on topics that had been prohibited just a short time earlier. Robert Tager, writing in Quill and Scroll (the journal of the International High School Journalism Honor Society) wrote:
“Student journalists have a legal right to discuss matters in their newspapers, both school sponsored and underground, that were previously forbidden to them. They can report responsible criticism of school officials; run stories involving the draft, the Vietnam War and drugs; report problems students are having in school and in the community. In general, they are free to responsibly report anything that interests and concerns their readers.” (Tager, 1971, as cited in Pearson, 1971)
One of the major findings in Tinker was that schools could still restrict student expression, as long as administrators could establish that allowing students to express themselves would “materially and substantially interfere with the requirements of appropriate disciple in the operation of the school.” (Tinker v. Des Moines, 1969) As might be expected, lower courts showed a great deal of variety in the application of this ruling in Tinker. Some tried to find limitations, while others generally seemed to feel that freedom of student expression was unfettered. And, the Court’s failure to differentiate between school sponsored and non-school sponsored activities, resulted in the whole realm of underground student papers and performances being suddenly available to students.
For example, in Eisner v. Stamford Board of Education (1971), a suit was brought by a group of high school students who asked to distribute a newspaper of their own creation (but not school sponsored), free of restrictions imposed by the local school board. The court held that
. .where students choose to contest a school board rule imposing a prior restraint on freedom of speech and press, then school authorities must demonstrate a reasonable basis for interference with such rights, and courts will not rest content with the officials’ bare allegations that such a basis existed.
However, in the vast majority of cases, courts held that regulation of student expression is permissible and that officials have the authority to do so if a failure to regulate:
- would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school or college, or
- would materially disrupt classes or class work, or
- would involve substantial disorder, chaos, violence or an invasion of the rights of other students. (Regulation of Student Publications (1973))
The court further held that schools, as state agencies, had an unassailable power to suppress words which inflict injury or caused a breach of peace. Finding that a public school is a “marketplace for ideas,” the court concluded that:
. . .it cannot be denied that a state has the authority to minimize or eliminate influences that will dilute or disrupt the effectiveness of the educational process, as the state conceives it, and therefore school officials may, where the educational process is threatened, regulate even protected speech, so long as such regulation does not otherwise unreasonably burden students’ First Amendment activities. (Regulation of Student Publications (1973))
Courts have generally allowed school authorities to require prior approval of publications, but only when the appeal procedure is well established and expedient. In Nitzberg v. Parks(1975), a regulation allowing the student to appeal directly to the school board was found to be "incompatible with the quick disposition so necessary in free speech cases" because the school board would not consider the appeal until its next scheduled meeting. Similarly, in Hernandez v. Hanson(1977), the court found that "given the nature and purpose of the public school, there is nothing per se unreasonable in requiring prior approval of written distributions so long as procedural safeguards are afforded." This was confirmed and expanded in Leibner v. Sharbaugh(1977), requiring that standards of "acceptable" be concrete enough to give guidance to the writer. Calling one regulation requiring student publications to conform to "journalistic standards of accuracy, taste, and decency maintained by the newspapers of general circulation" in the area a "monument to vagueness," the court invalidated the rule. For the most part, courts have relied upon findings in Times Film Corp. v. City of Chicago (1961), which upheld advanced submission of motion pictures prior to exhibition. Material, however, which is not libelous, obscene, or vulgar, or will not "materially and substantially interfere with the requirements of appropriate discipline" cannot be denied publication. For example, an annual collection of student essays and poetry was the subject of a ruling concerning the use of obscenities. The court held in Koppell v. Levine(1972) that the publication was not obscene because of some "four-letter" words. In the opinion, the court stated,
. . . the magazine contained no extended narrative tending to excite sexual desires, and that the dialogue therein was the kind heard repeatedly by those who walk the streets of our city. (Therefore), it could not be considered obscene.
In Sullivan v. Houston Independent School District(1971), thecourt ruled that a high school paper with theheadline "High School Is Fucked" was not obscene.In the ruling, the court held,
In the first place, the principal did not consider the issue of SPACE CITY! as a whole in order to determine whether or not it was obscene. Secondly, the principal also failed to correctly apply the definition of "common community standard" by which a work must be judged to determine its obscenity. In sum, it was apparent that even if the presence of "obscene language" in a publication qualified as an acceptable criterion for determining a student's right to distribute it, the principal had failed to consider the constitutional limitations on the test for obscenity. But beyond that, the particular letter to the editor which formed the basis for the principal's decision was not in itself obscene. The intermittent employment of the word "Fuck" and its ilk cannot, without more, render a publication obscene.
The court further stated that the defendants (the school system) had forfeited the right to object to the use of obscene words, when the words are sanctioned by their presence in books and periodicals contained in the school library.
A related question concerning the youth and immaturity of students publishing school newspapers also found courts in general agreement. Many courts stated that while students may not be denied freedom of the press, a more stringent regulation of the student press is warranted because of their youth and immaturity. In Quarterman v. Byrd(1971), the court made these remarks:
Free speech under the First Amendment, though available to juveniles and high school students, as well as to adults, is not absolute and the extent of its application could properly take into consideration the age or maturity of those to whom it was addressed. Thus, publications may be protected when directed to adults, but not when made available to minors, since First Amendment rights are not coextensive with those of adults. Similarly, a difference may exist between the rights of free speech attaching to publications distributed in a secondary school and those in a college or university, it being generally held that the constitutional right to free speech of public secondary school students may be modified or curtailed by school regulations reasonably designed to adjust these rights to the needs of the school environment.
Another question considered was the propriety of administrators using regulations to suspend students for gross disrespect or disobedience in such cases. Should a school official be allowed to use regulations to suspend or punish a student attempting to exercise First Amendment rights? Here, the courts have been inconsistent.
In Schwartz v. Schuker(1969), a high school student claimed he was suspended for distributing, off school grounds, an underground newspaper. After being advised by the principal not to distribute the paper in the school or on the school grounds, the student appeared on the grounds carrying thirty-two copies of the paper, which he refused to surrender to the dean of students. He was subsequently dismissed from school. The court upheld the actions of the school.
While it has been repeatedly held that provisions of the First Amendment apply to high school students as well as to others, the difficulty with the plaintiff's contention is that it is far from clear that he was suspended because of any activity protected under the First Amendment, rather than because of his flagrant and defiant disobedience of the school authorities. While the plaintiff's actions might also have included actual or threatened dissemination of the paper on or off school premises, his conduct went much further.
In Quarterman v. Byrd, the court ruled that legal means of testing the validity of school regulations were available and that "there is, accordingly, no reason for (a student) to disregard the school regulation or to flaunt school discipline." The court further stated that a danger existed in allowing students to break rules to test their validity and any other ruling would allow students to defy their teachers in practically all matters. The court concluded,
It cannot be denied that to permit high school students to determine for themselves the validity of school rules, and to reward with impunity their impatience with school regulations--even those later found to be improper--would undermine school discipline and would interfere with the orderly operation of the school.
As might be expected, much of the unrest over student publications came at a time of conflict in the United States. The war in Vietnam, coupled with internal unrest related to the Civil Rights movement, provided idealistic young people with motivation to become socially active. By the end of the 1970’s, though, social unrest was quieting. The war ended in April, 1975, with the fall of Saigon. The last riot involving race for the decade occurred in 1977 in New York City. With the reduction in social protest, the number of school-based incidents involving freedom of expression also decreased.
In 1983, the issue was again raised. Journalism students at Hazelwood East High School, in St. Louis, Missouri, included two stories in the school newspaper, the Spectrum. One of the articles discussed the experiences of student at the school, who was pregnant. The other article dealt with the impact of divorce on students in the school. As was the procedure at the school, the copy for the paper was given to the principal in advance of publication. When the copy was returned for publication, these two stories had been deleted. (Hazelwood School District v. Kuhlmeier 1988)
Three students who were staff members of the paper filed suit, claiming that their First Amendment rights had been violated. The principal justified his action based on the idea that he was protecting the privacy of the pregnant student and that he was protecting the school from a possible libel action. In what was something of an abrupt change from the findings in Tinker v. Des Moines, which had served as the primary case law in these kinds of disputes, the U.S. Supreme Court found that the school did not violate the students’ First Amendment rights and found for the school district. In a 5-3 vote, the Court held that the “school principal acted reasonably in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper.” (Hazelwood School District v. Kuhlmeier 1988)
However, the most sweeping finding by the Court might have been:
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. 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.
Some differences between Hazelwood and Tinker are obvious. The original action that caused the students involved in Tinker to bring suit involved the wearing of black armbands, a symbolic protest, while Hazelwood involved a student newspaper. According to the Court, that was a significant difference, because a student newspaper is a part of the curriculum, rather than the co-curriculum:
The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums only if school authorities have by policy or by practice opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner. (Hazelwood School District v. Kuhlmeier, 1988)
The findings in Hazelwood seems to have returned control of student expression to the school administrators and evidence exists that this control continues to be exercised.
In their efforts to control student expression, administrators have also turned to other laws, which sometimes appear to not be at all related. For example, the Family Educational Rights and Privacy Act of 1974 (also known as the Buckley Amendment, or FERPA) was passed to insure privacy of student “education records” which are controlled by the schools. Some school districts tried to classify student written and edited newspapers and yearbooks as “education records.” These districts also held that students who were involved in the production of the newspaper or yearbook were de facto, agents of the school and could not disclose information, even if independently and legally obtained. For example, if a student was suspended or expelled for any reason, administrators posited that this fact could not be reported because the disciplinary action was part of the student’s “education record.” Student publications were barred from reporting the action, even if their reports were based on first-hand observations, rather than school records. (National Scholastic Press Association (2002))
The case of Owasso Independent School District No. 1011 v. Falvo (2002), was brought as a result of a teacher in the schools of Owasso, Oklahoma, (a suburb of Tulsa) employing the students in the class as “graders” for in-class assignments. At the conclusion of the activity, the teacher would have each student call out the name and score on the paper they had graded. The parent of a learning disabled student objected to this practice on the grounds that it exposed her child to ridicule from other students. When school officials at various levels of administration denied her request to not call out the grades, she filed suit against the District. The case eventually was settled by the U.S. Supreme Court, which ruled that peer grading does not violate the provisions of FERPA. The basis for this ruling was that students are not agents of the school. The court drew a firm distinction between the rights and responsibilities of school personnel and the rights and responsibilities of students.
The Owasso case seems to imply that, since students are not agents for the school, their publications, and the contents therein, are not “education records,” as defined by the Family Right to Privacy Act. Therefore, schools cannot use the provisions of this act to prevent students from publishing information that was independently and legally obtained.
The most recent case involving student publications was Novato Unified School District v. Smith. In 2001 Smith, who was a student at Novato High School, wrote an editorial in the school newspaper entitled “Immigration.” Smith’s essay contained several provocative statements about Hispanics and illegal immigrants, accusing them of being drug dealers, robbers, and welfare cheats. After several parents complained, the principal and superintendent wrote a letter to parents saying that the editorial should never have been printed because it violated policies concerning maintaining a respectful school environment. Smith brought suit in the California state courts and, after losing the first case, won an appeal to the California Court of Appeals, which held that Smith’s Constitutional rights had been violated. The California Supreme Court declined to hear the appeal, which was then sent to the U. S. Supreme Court. The U.S. Supreme Court also refused to hear the case, leaving the decision of the California Court of Appeals to stand. (Education Week, 2007)
Schools have also tried to restrict other student communications. For example, Cory Johnson, a student in the New Brighton Area School District, in Pennsylvania, attended a school-sponsored event featuring a member of the Harlem Globetrotters basketball team. During the event, the basketball player referred to Johnson as “Osama bin Laden,” apparently in reference to the student’s scruffy goatee. As might be anticipated, other students started using the reference and, upon becoming frustrated with it, Johnson replied, “If I were Osama, I would have already pulled a Columbine.” Johnson was suspended for ten days and banned from his senior prom for making a “terroristic threat.” (ACLU 2006)
In 2004, Chris Bowler, a student at Hudson (MA) High School, started the Conservative Club, a student organization for politically conservative students. On the poster announcing the first meeting of the club, Bowler provided a web-link to a page showing the beheading of an American citizen by Iraqi insurgents. When the link on the poster was pointed out to officials, they removed the poster from the school. The Federal District Court hearing the case, referred to Tinker v. Des Moines and said that not allowing the web-link on the poster violated Bowler’s rights. The court, in a decision denying a motion to dismiss the case, ruled that the district had not provided "evidence that the videos were reasonably likely to result in a substantial interference with the operation of the school" and therefore "Tinker does not support censorship of the posters." (Student Press Law Center, 2007)
In January, 2002, students and faculty were allowed to go outside the school building at Juneau High School, in Alaska, to watch as the Olympic Torch passed the school. By all accounts, this was a school-sponsored event and was subject to normal school rules. As the students gathered on the sidewalk outside the school, Joseph Frederick, an 18-year-old student at the school, unfurled a banner reading “Bong Hits 4 Jesus.” Principal Deborah Morse confronted Frederick and confiscated the banner. Frederick was later suspended for ten days for violating the school’s policy against encouraging drug use. After appealing his suspension unsuccessfully, Frederick then filed suit. (Morse v. Frederick, 2007)
After the Federal District Court ruled in favor of the school, the Appeals Court overturned the decision. In 2007, the case was heard by the U.S. Supreme Court, which held that the principal had the right, under certain circumstances, to restrict a student’s speech. While citing Tinker v. Des Moines as precedent, the Court put more emphasis on the part of Tinker allowing the school to restrict freedom of expression when not doing so would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” (Tinker v. Des Moines, 1969) While affirming that students do not give up their rights when they enter school, the Court further stated that the rights of students must be considered based on the “special characteristics of the school environment.” (Morse v. Frederick, 2007) Justice Clarence Thomas, in a concurring opinion, went even further:
I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinkerstandard. I think the better approach is to dispense with Tinkeraltogether, and given the opportunity, I would do so. (Morse v. Frederick, 2007 Thomas, J., concurring)
In April, 2007, Allen Lee, a high school student in a Chicago suburb, was arrested on two misdemeanor charges of disorderly conduct after writing an essay in which he wrote:
"Blood, sex and booze. Drugs, drugs, drugs are fun. Stab, stab, stab, stab, stab, s...t...a...b... puke. So I had this dream last night where I went into a building, pulled out two P90s and started shooting everyone, then had sex with the dead bodies. Well, not really, but it would be funny if I did."
After his teacher saw his paper, she notified the principal, who turned the essay over to police. In addition to being arrested, Lee’s enlistment in the U. S. Marine Corps was also revoked. (MSNBC, 2007) Although a settlement was finally reached that would allow Lee to return to school, the criminal charges have yet to be resolved.
In summary, legal decisions related to freedom of expression for high school students seem to be all over the map. Even though the U.S. Supreme Court tried to provide clear guidelines for settling such issues in Tinker v. Des Moines (1969), a legal sea-change seems to have occurred since that time. Many of the provisions of Tinker were modified, or rejected, almost 20 years later in Hazelwood School District v. Kuhlmeier (1988).
Conclusion
Thirty-two years after the Tinker v. Des Moines decision, in October, 2001, Katie Sierra, a 15-year-old who was anti-war, and pro-anarchy, was suspended from her Charleston, West Virginia, school for wearing a T-shirt protesting the bombing of Afghanistan and for attempting to start an Anarchy Club. After receiving threats from her fellow students, she was taken out of the school by her parents for her own protection. All the while, her fellow students were attending school wearing red, white, and blue ribbons on their clothing, as well as T-shirts opposing Osama Bin Laden. Shortly after her removal from school became widely known, she received an email from a middle-aged computer programmer living in Missouri expressing his support and willingness to attend and testify at her trial. The programmer, John Tinker, believed Sierra was suspended because school administrators did not like her viewpoint. "It's the issue of the importance of protecting the unpopular view," Tinker said. "That's what makes the First Amendment what it is. Otherwise it would just be meaningless." (Freedom Forum, 2001)
Sierra lost her case and the West Virginia Supreme Court has refused to hear her appeal.
Notes
ACLU (2006). ACLU Files Federal Lawsuit On Behalf of Pennsylvania Student Suspended Over Remark. Retrieved
March 1, 2008, from http://www.aclu.org/freespeech/youth/27746prs20061219.html
Education Week (2007). Supreme Court Declines to Hear School District Appeal Over Student's 'Immigration' Essay.
Retrieved March 6, 2008, from
http://blogs.edweek.org/edweek/school_law/2008/02/supreme_court_declines_to_hear_1.html
Eisner v. Stamford Board of Education. CA2 Conn, 440 F2d 803. (1971)
Family Educational Right to Privacy Act 20 USC S. 1232g (1974)
Freedom Forum (2001). John Tinker pledges support for pro-anarchy teen. Retrieved March 6, 2008, from
http://www.freedomforum.org/templates/document.asp?documentID=15460
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)
Hernandez v. Hanson430 F Supp 11541 (1977)
Koppell v. Levine DC NY) 37 F Supp 4561 (1972)
Leibner v. Sharbaugh 429 F Supp 7441 (1977)
Morse v. Frederick551 U.S. ___ (2007)
MSNBC (2007). Marines drop student charged for violent essay. Retrieved March 6, 2008, from
http://www.msnbc.msn.com/id/18353425/
National Scholastic Press Association (2002). Supreme Court decision solidifies student press rights. Retrieved
March 1, 2008, from http://www.studentpress.org/nspa/trends/~law0302hs.html
Nitzberg v. Parks 525F2d 3781 (1975)
Pearson, G. (1971). How Free Should Student Publications Be? National Association of Secondary School Principals
Bulletin, 55:55-58
Owasso Independent School District No. 1011 v. Falvo534 U.S. 426 (2002)
Quarterman v. Byrd CA4 NC453 Fwd 541 (1971)
Regulation of Student Publications. 16 ALR Fed 182. (1973)
Schwartz v. Schuker, DCNY 298 F Supp 2381 (1969)
Student Press Law Center (2007). Court: Censorship of Conservative Club posters in Mass. illegal. Retrieved
March 1, 2008, from http://208.106.253.91/newsflash_archives.asp?id=1626&year=2007
Sullivan v. Houston Independent School District, DC Tex 333 F Supp 11491 (1971)
Times Film Corp. v. City of Chicago 1 365 US 43, 81 S Ct 391, 5 L ed 2d 6491 (I961)
Tinker v. Des Moines School District. Vol. 393 U.S. 503 (1969)
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