Regulating Speech Behind the Schoolhouse Doors
| Publication year | 2014 |
| Pages | 22 |
| Citation | Vol. 83 No. 5 Pg. 22 |
Regulating Speech Behind the Schoolhouse Doors
By Sarah J. Loquist-Berry
The right to freedom of speech provided by the First Amendment is one of this country's most treasured founding principles. To protect it, we will suffer the most offensive speech imaginable.[1] Yet, even this principle does not provide absolute protection.[2]Nowhere is this more true than in our schools. While students retain their right to freedom of speech, the Supreme 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]
Consider the following situations: a student holds up a sign endorsing drug use at a public event; a student criticizes the state's governor on social media; a student creates a fake profile of the principal on a social media site; a student engages in "cyberbullying" of another student away from school. Are any of these situations protected First Amendment speech? The answer is simple — it depends on the facts.[4]
The First Amendment
The First Amendment to the U.S. Constitution states in relevant part as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . ."[5] Upon first glance, one might conclude that the First Amendment's prohibition against the establishment of religion (the "Establishment Clause") and providing for the free exercise of religion (the "Free Exercise Clause") are unrelated to the prohibition against restricting freedom of speech; however, as will be discussed below, issues involving freedom of speech are often intertwined with the Establishment Clause and/or the Free Exercise Clause. Accordingly, any discussion regarding freedom of speech must necessarily include some discussion of the Establishment Clause and the Free Exercise Clause.
The U.S. Supreme Court has often explained the requirements of the Establishment Clause as follows:
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.[6]
The Tests for Religious Speech
With respect to the Establishment Clause, the U.S. Supreme Court has set forth three different tests. The first is most commonly known as the Lemon Test.[7] Applying the Lemon Test in the public school context, a school district can only take an action benefitting religious activity when: (1) the activity has a secular purpose; (2) the primary effect of the activity neither promotes nor prohibits religion; and (3) the activity does not make the school district appear excessively entangled with religion.[8] If the purpose of the activity is religious, the primary effect of the activity is to encourage or inhibit religion, or the activity gives the appearance of excessive entanglement, then the activity or practice is unconstitutional.
The second test created by the U.S. Supreme Court is often referred to as the Coercion Test.[9] Under the Coercion Test, the court determines whether the school district has directed a formal religious exercise. If it has, then the school district has unconstitutionally coerced the participation of those who object to the exercise. It does not matter to the court's determination whether the coercion was intentional or inadvertent.[10]
Finally, the third test set forth by the U.S. Supreme Court under the Establishment Clause is often referred to as the Endorsement Test.[11] Applying the Endorsement Test, the court considers whether a reasonable observer would determine that the school district impermissibly endorsed or promoted a particular religion.[12] Specifically with respect to a display, the U.S. Supreme Court has stated that the "effect of the display depends upon the message that the government's practice communicates: the question is 'what viewers may fairly understand to be the purpose of the display.'"[13]
Student Freedom of Speech
Keeping the above tests in mind with respect to religious speech, it is important to remember that the courts have created more specific tests with respect to student freedom of speech. With respect to student speech, it includes not only the spoken word. Rather, it can take many forms, including the freedom to wear certain clothing, jewelry, or other accessory. Speech can also include a student's right to create certain drawings or writings. While the protection of student speech may not be as broadly applied as it is for adults, students certainly do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[14]
In 1969, the U.S. Supreme Court issued its decision in Tinker v. Des Moines Independent Community School District — a decision that remains one of the leading cases in the area of student freedom of speech to this day. In Tinker, high school students were prohibited from wearing black arm bands to school to protest the country's involvement in the Vietnam War.[15] The plaintiff students were asked to remove their armbands, and, when they refused, they were suspended from school until they were willing to return without the arm-bands.[16] The students refused to return without their armbands until after the planned period for wearing the armbands had ended.[17] In making the decision to suspend students who refused to remove the armbands, the school district did not provide any evidence that the wearing of the armbands would be disruptive to the school.[18]
Accordingly, the Supreme Court found that the school district had "banned and sought to punish [the students] for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of [the students]."[19] The Supreme Court specifically stated that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."[20] Thus, the Tinker test requires a school district to show substantial disruption of — or material interference with — school activities in order to overcome a student's First Amendment rights.[21] Later cases have tweaked the Tinker test somewhat, but it still remains valid.[22]
Tinker stood as the leading U.S. Supreme Court case on student freedom of speech until 1986 when the Court issued its decision in Bethel School District No. 403 v. Fraser (hereinafter Fraser).[23] At issue in Fraser was whether the First Amendment protected a student's lewd speech[24] given during a school-sponsored assembly to nominate another student for an elected office in the student government.[25] The student had discussed the speech with two teachers before delivering it and had been warned that he should not give the speech and that doing so would likely have severe consequences.[26] The student gave the speech despite those warnings and was suspended for three days and removed from the list of candidates to give the commencement speech for violating the school rule prohibiting the use of "obscene" language.[27]
In the course of ruling in favor of the school district, the Supreme Court noted that one purpose of the public school system is the "inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system," including the "habits and manners of civility."[28] The freedom of speech rights of students are not necessarily the same as those of adults,[29] in part because "[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior."[30] Thus, "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board."[31]
The U.S. Supreme Court's most recent decision dealing with student freedom of speech was Morse v. Frederick, issued in 2007.[32] In January 2002, the school district allowed students and staff to watch the Olympic Torch Relay as it passed down the street in front of the high school.[33] At this school-sanctioned and school-supervised event, one of the high school students held up a banner which stated "Bong Hits 4 Jesus" and refused to take down the banner when directed to do so by the school principal.[34] The student was suspended for 10 days because the banner violated the school district's policy prohibiting public expression that advocated the use of illegal substances.[35] As noted by the Superintendent in upholding the principal's decision, the "'common-sense understanding of the phrase 'bong hits' is that it is a reference to a means of smoking marijuana.'"[36]
The Supreme Court framed the issue as "whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use."[37] During the course of reaching a...
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