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.

• Situation: Two students wore black armbands to school in December 1965 to silently protest the Vietnam War. School officials said the expression would disrupt the school.
  
• The Supreme Court said:
1. Constitutional rights extend to students, even when they're on public-school property.

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.'"

2. Public school officials must justify attempts to suppress or punish speech. They cannot stop or punish speech solely because they find it offensive. But, they can regulate speech when they show that the expression would cause a "substantial disruption of or material interference with school activities."

"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):

• Situation: A student gave a 2-minute campaign speech during a school-sponsored assembly. He used no four-letter words, but he did use sexual innuendo to describe a candidate for student government office:

"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.

• Excerpts from the Supreme Court's decision:

"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."

• Points from Bethel: The Supreme Court distinguished the Bethel case from Tinker, saying that since there were different circumstances, different First Amendment standards applied:
1. School officials have more control over the content of a school-sponsored assembly.
2. School officials have a duty to instill moral values and encourage civility.

Hazelwood School District v. Kuhlmeier (1988): The Supreme Court recognized that school principals have broad powers to censor school-supported student expression.

• Situation: The high school principal cut stories dealing with divorce and teen pregnancies from the school newspaper.
• The Supreme Court said:
1. The student newspaper was not a public forum but "a supervised learning experience."
2. School officials could regulate the content of the newspaper "in any reasonable manner."i
3. School officials could censor not only because of concerns that the expression would disrupte the educational process, "impinge on the rights of other students," but also because the expression is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences."
4. The ruling applied to any school-sponsored expressive activities "that students, parents, and members of the faculty might reasonably perceive to bear the imprimatur of the school."

Hazelwood does not require administrative censorship of student publications.

Morse v. Frederick (2007)

• 5-4 vote
  • ROBERTS delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS and ALITO joined.
  • THOMAS filed a concurring opinion.
  • ALITO filed a concurring opinion, in which KENNEDY joined.
  • BREYER filed an opinion concurring in the judgment in part and dissenting in part.
  • STEVENS filed a dissenting opinion, in which SOUTER and GINSBURG joined
  
   
  
• Justice Roberts (majority opinion)

  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.

  • Was a school-sanctioned event during normal school hours. Teachers and administrators were interspersed among the students and charged with supervising them.
  • Reasonable to interpret the banner as encouraging illegal drug use.
  • Plainly not a case about political debate over the criminalization of drug use or possession.
     
    
  • Hazelwood does not control this case because no one would reasonably believe that Frederick's banner bore the school's imprimatur.
  • But Hazelwood and Fraser acknowledged that schools may regulate some speech "even though the government could not censor similar speech outside the school."
     
    
  • Deterring drug use by schoolchildren is an "important-indeed, perhaps compelling" interest.
  • Congress has declared that part of a school's job is educating students about the dangers of illegal drug use.
  • Thousands of school boards have adopted policies aimed at effectuating the message that illegal use of drugs is wrong and harmful.
  
   
  
• Justice Thomas (concurring)

  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.

• Justice Alito (concurring) joined by Justice Kennedy

  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.

  
   
  

  College:

Healy v. James (1972):

• Situation: The president of a Connecticut public college refused to recognize a radical student group as an official student organization, which would have entitled the group to announce its activities in the campus newspaper and post notices on the college bulletin boards. The students argued that the denial violated their First Amendment rights.
• The Court sided with the students:
1. Concluded that the First Amendment applies fully to the states and that "state colleges and universities are not enclaves immune from [its] sweep. . . "
2. Noted that "The college classroom with its surrounding environs is peculiarly the 'marketplace of ideas.' "
3. Said its own precedents "leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, '[T]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' "

Papish v. Board of Curators of the University of Missouri (1973):

• Situation: Barbara Papish, a graduate journalism student at the University of Missouri, was expelled from school for distributing an "underground" newspaper in the heart of campus. The newspaper contained two features that the university deemed "indecent." The front page included a reprint of a political cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice; a reprint of an article concerning the acquittal of a New York man on charges of assault and battery was headlined "Motherfucker Acquitted." The man belonged to the group called "Up Against the Wall, Motherfucker."
• The Court reversed a lower court ruling and ordered Papish reinstated.
• "We think Healy makes it clear that the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of "conventions of decency."
• The Court noted that "the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech."

Antonelli v. Hammond (D. Mass. 1970):

• Situation: The Fitchburg State College president tried to withhold funding from the student newspaper for reprinting an article by Eldridge Cleaver that included "four-letter words."
• The U.S. District Court of Massachusetts said administrators could not require prior review of articles by an advisory board and that officials could not censor expression solely because they did not like it.

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.

• College officials had not shown that the harm from obscenity in a college setting outweighed the danger of censorship to free expression.

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):

• Situation: University of Mississippi officials had tried to stop publication of a literary magazine because of "earthy language" in two short stories. The objectionable portions consisted of "four-letter words" often referred to as obscenities, including one the Fifth Circuit Court of Appeals in a footnote described as "literally referring to an incestuous son but more commonly used as an abusive epithet."
• The Fifth Circuit Court of Appeals enunciated what are now the well-established rules concerning censorship of the college press.
  1. The fact that a state university provides funding, faculty or departmental advice, or campus facilities does not authorize university officials to censor the content of a student publication;
  2. Individual four-letter words are insufficient reason to censor;
  3. The state university cannot be considered the same as a private publisher with absolute arbitrary power to control content;
  4. The university, as an arm of the state, cannot make private publisher decisions about content;
  5. The university cannot be held liable for the content of student publications.

Courts specifically have declared that public college administrators may not:

1. suspend an editor for publishing controversial material
2. suppress objectionable material from publication
3. withdraw or reduce financial support because of the newspaper's offensive
4. regulate content to assure the compliance of printed material with "responsible freedom of the press."
5. punish student editors for poor grammar and spelling in a publication
6. censor student copy prior to publication to avoid libelous material
7. censor to sidestep criticism of the school or to avoid a public controversy.

When can public universities censor student publications?

• Norton v. Discipline Committee of East Tennessee State University (6th Cir. 1969): literature urged students to "stand up and fight" and to "assault the bastions of administrative tyranny."
• Speake v. Grantham (5th Cir. 1971): hoax notices that classes would not meet two days before finals began.
• Jones v. State Board of Education (6th Cir.1969): leaflets urged boycott of fall registration.

Does Hazelwood apply to college students?