Free Speech in Public Schools: Has the Supreme Court Created a Haven for Viewpoint Discrimination in School-sponsored Speech?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 20 No. 4

Free Speech in Public Schools: Has the Supreme Court Created a Haven for Viewpoint Discrimination in School-Sponsored Speech?

Denise Daugherty

Introduction

Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

Thomas Jefferson[1]

The concept of free speech has always been one of the foundations of our government.[2] The First Amendment provides in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press."[3] The Supreme Court has designated three categories for purposes of First Amendment consideration, based on where the speech at issue took place: (1) public forums, (2) limited public forums, and (3) nonpublic forums. [4] In all three of these categories, including nonpublic forums, the government may only place restrictions on speech that have a neutral objective.[5]

In Hazelwood School District v. Kuhlmeier,[6] the Supreme Court considered the appropriate standard for First Amendment analysis in the context of school regulation of a student newspaper in a public high school.[7] Subsequently, some circuit courts of appeals have found that the decision in Hazelwood created a new subset of nonpublic forums that do not require viewpoint neutrality.[8] Other circuits, however, have found that the requirement of viewpoint neutrality that applies generally to governmental restrictions of speech in nonpublic forums also applies in the context of school-sponsored nonpublic forums.[9] This split in the circuit courts presents a significant difference in interpretation of First Amendment law that can only be resolved by a future decision of the Supreme Court.[10]

Part I of this Note will discuss Supreme Court cases relevant to the issue of viewpoint neutrality as a requirement for restriction of free speech in public schools.[11] Part II will discuss the Supreme Court's 1988 decision in Hazelwood.[12] Part III will discuss the cases forming a split in the circuit courts since Hazelwood.[13] Additionally, Part III will discuss the developing trend toward interpreting Hazelwood as creating a new subset of nonpublic forums for school-sponsored activity where viewpoint neutrality is no longer required.[14] Finally, Part IV will demonstrate that the Supreme Court decisions in Hazelwood and Perry Education Association v. Perry Local Educators' Association[15] did not intend to abandon the viewpoint neutrality requirement.[16] Accordingly, this Note concludes that the decisions of those circuit courts of appeal that have not required viewpoint neutrality as a constitutional imperative in this context are wrongly decided.[17]

I. Supreme Court Cases Involving Free Speech in Public Schools

A. Tinker v. Des Moines Independent Community School District [18]

In Tinker v. Des Moines Independent Community School District, school officials suspended three students who wore black armbands to school to protest the Vietnam War.[19] The school suspended the students pursuant to a policy the school had recently implemented.[20] School officials specifically adopted the policy when they learned of the students' plan to wear armbands to school.[21]

The Court noted that activities such as wearing armbands are symbolic acts that should be entitled to broad protection under the Free Speech Clause of the First Amendment of the United States Constitution.[22] In an oft-quoted passage, the Court stated that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[23] Although the Court acknowledged that school officials are entitled to broad discretion in order to maintain control in schools, it recognized that such discretion must be balanced against the rights granted by the Constitution.[24] The Court held that public school officials may not prohibit conduct protected by the First Amendment without showing that the conduct would "‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'"[25] Because school officials presented no evidence that the wearing of armbands in this case had caused any disruption whatsoever, the Court found that the students' activity was protected and therefore that their suspensions violated the First Amendment.[26]

Significantly, the Court also noted that the rule did not prohibit all political symbols, but only the armbands that students wore in order to protest the Vietnam War.[27] In an early showing of its requirement of viewpoint neutrality, the Court stated that the Constitution does not permit school officials to disallow a particular opinion without a showing of substantial interference with discipline.[28]

B. Perry Education Association v. Perry Local Educators' Association[29]

In Perry Education Ass'n v. Perry Local Educators' Ass'n, a teachers union brought suit claiming First Amendment violations because the school district had granted the incumbent union exclusive access to the district's interschool mail system.[30] Perry Education Association ("PEA") was the exclusive bargaining representative of the teachers.[31] Perry Local Educators' Association ("PLEA") was a rival union that had formerly enjoyed access to the mail system, but was denied access by the terms of the collective bargaining agreement between the Board of Education and PEA.[32]

Justice White, writing for the majority, first discussed the three classifications of forums for First Amendment analysis and found the interschool mail system to be a nonpublic forum.[33] Justice White stated that school officials could impose restrictions in these forums as long as they were reasonable and viewpoint neutral.[34] The Court held that the school district had not violated PLEA's First Amendment rights because the district's restriction in this case was reasonable and not intended to suppress any particular viewpoint.[35]

Justice Brennan, writing in dissent, voiced concerns about the way the majority had applied the viewpoint neutrality requirement.[36] He believed that denial of access to the mail system to one union while allowing it to another was tantamount to viewpoint discrimination.[37] In Justice Brennan's view, the majority merely focused on the forum analysis and completely disregarded the general prohibition on viewpoint discrimination, no matter what the forum.[38]

Justice White disagreed with Justice Brennan's conclusion that the Court had abandoned the viewpoint neutrality requirement.[39] The majority found that the policy did not discriminate based on viewpoint but rather on the status of the union as the teachers' exclusive bargaining representative.[40] The Court applied forum analysis to determine the appropriate First Amendment standard because the Court found that the school district had not engaged in viewpoint discrimination.[41]

C. Bethel School District No. 403 v. Fraser[42]

In Bethel School District No. 403 v. Fraser, a high school student, Fraser, gave a sexually suggestive speech nominating another student for student office.[43] School officials determined that the speech violated a disciplinary rule against use of obscene language.[44] Accordingly, the school suspended the speaker for three days and removed his name from a list of potential graduation speakers.[45] The Court distinguished the disruptive nature of Fraser's speech from the "nondisruptive, passive expression of a political viewpoint" that it had held constitutionally protected in Tinker.[46] The Court also noted that the rights of public school students are not necessarily coextensive with the rights of adults under other circumstances.[47] The Court observed that the regulation of vulgar or offensive language is part of the role of schools in instilling fundamental values in children.[48] Therefore, the Court held that the First Amendment does not prevent school officials from restricting students' use of vulgar or indecent speech. [49]

II. Hazelwood School District v. Kuhlmeier[50]

In Hazelwood, student staff members of the school newspaper sued after their principal rejected two proposed pages of an issue of the paper, which contained two articles the principal found inappropriate for circulation. [51] Because he believed there was inadequate time to amend the issue of the newspaper and still distribute it before the end of the school year, the principal removed two entire pages which included the objectionable articles.[52]

The United States District Court for the Eastern District of Missouri found that school officials had not violated the students' First Amendment rights.[53] Under the standard that the district court applied, the principal's actions in deleting the two newspaper pages were "legitimate and reasonable" in light of the need to protect the privacy of the pregnant students and to ensure journalistic fairness in the case of the divorced father.[54]

The Eighth Circuit reversed, concluding that school officials had violated the student journalists' First Amendment rights.[55] According to the Eighth Circuit, the school newspaper was a public forum in which the views of student journalists were protected from school official censorship under the standard announced by the Supreme Court in Tinker.[56] Thus, under the Eighth Circuit's view, the deletion of the two pages violated the First Amendment because the principal had failed to demonstrate that publication of the two deleted newspaper pages would result in any material or substantial disruption to schoolwork or discipline.[57]

The Supreme Court reversed the Eighth Circuit Court of Appeals' decision, specifically rejecting the court's finding that the school newspaper was a public forum to which the Tinker standard applied.[58] Instead, after analyzing the policy and practice of the school in publishing the newspaper, the Court designated the newspaper as a...