How free is the speech of public school students?

• Author: Rohr, Marc

In 1996, a Broward County high school art student sued the school board after her principal removed her sexually suggestive sculpture from a public display within the school.[1] In 1997, a Palm Beach County middle school student sued the school board after her principal removed her science fair project (concerning the durability of condoms) from a public display.[2] In 1998, in the celebrated case of the "Killian Nine," nine Miami-Dade County high school students were expelled and arrested as a result of their distribution, at school, of a 20-page booklet (ironically entitled First Amendment) which contained some allegedly racist material, some sexually suggestive material, and material that school officials interpreted as threatening the life of the principal.[3] Early in 1999, in a case arising outside of Florida, a Michigan high school student sued her school board because she could no longer legally wear her pentagram (a symbol of her Wicca beliefs) after the adoption of a new rule barring students from wearing or displaying various kinds of clothing and symbols thought to be associated with gangs, cults, and racist groups.[4]

In each of these cases (and many more), the student believes that his or her rights under the First Amendment have been violated. Have they?

The answer is far from clear. While no judicial decision known to this author has acknowledged it, there is a stunning lack of certainty and clarity in the law governing the rights of public school students to engage in expressive activity on school premises. Students win some of these cases, and lose others. One reason this is so is that two different courts may take two very different approaches to resolving the same kind of dispute. I will try to explain why.

In 1969, the U.S. Supreme Court decided the granddaddy of student-speech cases, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The Court held that, in the absence of any showing that the students' expression posed a genuine threat of disruption of the educational program of the schools, high school and junior high school students were constitutionally entitled to attend classes while wearing black armbands to protest American involvement in Vietnam. Justice Fortas wrote for the majority, and his opinion included these arguably important statements:

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.... School officials do not possess absolute authority over their students.... The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions ... if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others.... But conduct by the student, in class or out of it, which for any reason ... materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Id. at 506, 511, 512-13.

Tinker, then, seemed to put forth a "material disruption" standard for evaluating the constitutionality of restrictions on student expression in the public schools.

A very different approach was taken by the Supreme Court in the next case it decided involving student speech, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Fraser was punished as a result of a sexually suggestive speech he delivered at a school assembly. The Supreme Court upheld the action of the school district. Chief Justice Burger, writing for the majority, relied on the following rationale, which was in no way tied to the Tinker "material disruption" standard:

"[P]ublic education must prepare pupils for citizenship in the Republic.... It must inculcate the habits and manners of civility as values ... indispensable to the practice of self-government in the community and the nation." [T]hese "fundamental values" must ... take into account consideration of the sensibilities of others.... The 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.... Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. ... The inculcation of these values is truly "the work of the schools." ... The determination of what manner of speech in the classroom or school assembly is inappropriate properly rests with the school board.

Id. at 681, 683. Accord, Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989).

Chief Justice Burger quoted (with approval) a federal judge who, referring in another case to the profane words that had appeared on a jacket in the case of Cohen v. California, 403 U.S. 15 (1971), asserted that "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket."[5]

To what extent was Tinker modified by Fraser? Was the logic of the Court's reasoning in Fraser confined to student expression in the context of school-sponsored events like student assemblies (the actual setting in Fraser itself), or did it extend to all student expression occurring on school premises? At least two federal appellate courts (one in dictum) have stated that Fraser allows school officials to ban all "indecent or vulgar" speech on school premises, even outside the context of school-sponsored activities.[6] (In each case, however, one member of the panel disagreed with that conclusion.)[7]

At this point another important component of the modern law of freedom of speech must be brought into play. Beginning in the mid-1970s, in a series of cases involving claims by citizens of a First Amendment right of access to governmentally controlled properties and channels of communication for the sake of engaging in expressive activity therein,[8] the Supreme Court asked a threshold question: Was the property (or channel of communication) a "public forum,"...