The First Amendment and Public Schools
Courts treat high school and college students differently under the First Amendment. The cases below will help us understand why that is so. Please read them and be prepared to discuss them in class.
Tinker v. Des Moines Independent School District (1969): The First Amendment applies to students on school property unless officials can demonstrate a reason to restrict it.
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. 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.
"The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hairstyle, or deportment. It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to 'pure speech.'"
"Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."
Justification must be "more than a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint."
However, the court has shifted the focus from students to school officials and what they must do to meet their responsibility to instill societal values in students.
Bethel School District v. Fraser (1986):
"I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice president -- he'll never come between you and the best our high school can be."
Prior to the speech, the student (Fraser) had discussed the contents of his speech with two teachers, who told him the speech was "inappropriate and that he probably should not deliver it," and that delivery of the speech might have "severe consequences." The Supreme Court noted that during Fraser's delivery of the speech, some students hooted and yelled; some by gestures that graphically simulated the sexual activities pointedly alluded to in respondent's speech. Other students appeared to be bewildered and embarrassed by the speech. A Bethel High School disciplinary rule prohibited the use of obscene language in the school. Fraser was suspended for three days but served two.
"The pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students -- indeed, to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked.
This Court's First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children.
We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission.
A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public school education."
Hazelwood School District v. Kuhlmeier (1988): The Supreme Court recognized that school principals have broad powers to censor school-supported student expression.
Hazelwood does not require administrative censorship of student publications.
Morse v. Frederick (2007)
We hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.
I write separately to state my view that the standard set forth in Tinker v. Des Moines Independent Community School Dist. is without basis in the Constitution.
In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.
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 Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.
I join the opinion of the Court on the understanding that
(a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and
(b) it provides no support for any restriction of 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."
The opinion of the Court correctly reaffirms the recognition in Tinker of the fundamental principle that students do not "shed their constitutional rights to freedom of speech or expression at the school-house gate."
I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.
The opinion of the Court does not endorse the broad argument . . . that the First Amendment permits public school officials to censor any student speech that interferes with a school's "educational mission."
The "educational mission" of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.
Healy v. James (1972):
Papish v. Board of Curators of the University of Missouri (1973):
Antonelli v. Hammond (D. Mass. 1970):
We are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is a part of the university structure and is financed with funds controlled by the administration. The state is not necessarily the unrestrained master of what it creates and fosters. Thus in cases concerning school-supported publications or the use of school facilities, the courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily related to the maintenance of order and discipline within the educational process.
In the very creation of an activity involving media of communication, the state regulates to some degree the form of expression fostered. But the creation of the form does not give birth also to the power to mold its substance.
If anything, the contrary would seem to be true. The university setting of college-age students being exposed to a wide range of intellectual experience creates a relatively mature marketplace for the interchange of ideas so that the free speech clause of the First Amendment with its underlying assumption that there is positive social value in an open forum seems particularly appropriate.
What restraints have courts placed on public universities in dealing with student publications?
Bazaar v. Fortune (5th Cir. 1973):
Courts specifically have declared that public college administrators may not:
When can public universities censor student publications?
Does Hazelwood apply to college students?
In Kincaid v. Gibson (E.D. Ky. 1997), Judge Joseph M. Hood said the university "was entitled to exercise reasonable control over the yearbook" because it was not intended by KSU officials to be a public forum.
The plaintiffs (the students) have put forth no evidence that The Thorobred was intended to reach or communicate with anybody but KSU students. . . . [T]he plaintiffs do not contend that the yearbook was held out to the public; instead, the plaintiffs have aptly stated that the yearbook was a student publication, prepared and distributed to the students by the students. As can be seen, then, the yearbook was not intended to be a journal of expression and communication in a public forum sense, but instead was intended to be a journal of the "goings on" in a particular year at KSU.
In November 1999, a split three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed that decision. However, in January 2001, a panel of 10 judges of the Sixth Circuit overturned the decision, ruling that the university had violated the First Amendment.
A seven-member majority of the panel said the contention by KSU officials' that they were regulating only the style and form of the books, not the content, was "simply not credible." Writing for the majority, Judge R. Guy Cole said:
Confiscation ranks with forced government speech as among the purest forms of content alteration. There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it.
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