Student Speech Rights in the Modern Era - Brett Thompson

• Citation: Vol. 57 No. 3
• Publication year: 2006

Comment

Student Speech Rights in the Modern Era

I. Introduction

Many things have changed since the United States Supreme Court's last major student speech case, Hazelwood School District v. Kuhlmeier,¹ was decided in 1988. In 1999 a tragic school shooting occurred at Columbine High School in Colorado. During that same time period, there were a number of other occurrences of major violence at public schools. Since then, schools and legislatures have scrambled to prevent the occurrence of similar incidents. For example, a number of states have enacted anti-bullying statutes. Some were motivated to do so by a U.S. Secret Service report indicating that bullying played a role in many school shootings.² Indeed, the two shooters at Columbine had been bullied.³ Thus, it is logical for school officials and legislators to want to do everything in their power to ensure that students in their schools are not subjected to abusive speech that might evoke feelings of rage that could lead to further violence.

Related to the idea of fostering a more accepting school environment is growing concern over the treatment of homosexual students. The gay rights movement has gained substantial support in recent years and has pushed for tolerance of homosexual students in schools. Some schools have taken a proactive approach to promote diversity.⁴ Nevertheless, many students carry strong religious and political views in opposition to homosexuality. Therefore, some school systems have attempted to regulate speech that might be harmful to homosexual students.⁵

Additionally, racial tensions and related violence continue to be present in schools. The need to eliminate race-related violence is even more urgent in light of Columbine and other school shootings. Not surprisingly, school systems have also attempted to regulate a wide range of speech that might lead to racial violence.⁶

Given the need to promote a safe school environment that does not cultivate violence or intimidation, it would seem that courts would be increasingly deferential to attempts by school officials and legislators to limit such negative activity by enacting rules that restrict student speech. After all, the United States Supreme Court, following Tinker v. Des Moines Independent Community School District,¹ seemed to acknowledge the realities of school administration by allowing school officials greater leeway to regulate student speech in Bethel School District No. 403 v. Fraser⁸ and Hazelwood.

This Comment will examine recent federal court decisions that have sought to strike the delicate balance between the need for student discipline and the right to free expression. This Comment will focus on the way lower courts have addressed restrictions on student speech that "happens to occur" on school grounds and will only address speech occurring in school-sponsored publications and assemblies indirectly. Given the challenges facing school administrators, courts have been surprisingly reluctant to allow restrictions on student speech. Yet, the courts' reluctance is wise because providing too much leeway to school administrators would risk turning schools into "enclaves of totalitarianism."⁹

II. Background Cases

The United States Supreme Court has decided three cases critical to understanding American student speech jurisprudence: Tinker v. Des Moines Independent Community School District,¹⁰ Bethel School District No. 403 v. Fraser,¹¹ and Hazelwood School District v. Kuhlmeier.¹² In Tinker the Court protected student speech that does not cause, or will not foreseeably cause, substantial disruption in the school environment.¹³ However, in Fraser and Hazelwood, the Court placed limitations on student speech rights.¹⁴

A. The Protection of Non-Disruptive Speech in Tinker

The landmark case of Tinker is the foundation of modern student speech jurisprudence. The Court held that school officials cannot prohibit student expression unless the forbidden speech would "'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'" ¹⁵ School officials suspended five students who wore black armbands to school in protest of the Vietnam War.¹⁶ The parents of the students sought nominal damages and an injunction to prevent school officials from disciplining their children.¹⁷ The district court dismissed the claim, holding that the school officials' actions were reasonable to prevent disciplinary prob-lems.¹⁸ The Eighth Circuit Court of Appeals affirmed.¹⁹

In laying out its analysis, the Court noted that the problem in the case was one where the rules of school authorities collided with the students' free speech rights.²⁰ On one hand, the suspended students' political expression was not aggressive and did not interfere with the schools' work or with the rights of other students.²¹ Rather, the wearing of armbands at the school was the type of symbolic speech, similar to "pure speech," that was entitled to First Amendment²² protection.²³ On the other hand, while "[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," the Court noted that it had repeatedly emphasized the need to affirm school officials' authority to control student conduct.²⁴

The Court disagreed with the district court's determination that the suspensions were reasonable because school officials feared a disturbance from the armbands.²⁵ The Court declared that "undifferentiated fear or apprehension of disturbance" was not sufficient to defeat the right to free expression. ²⁶ This was the case because:

[a]ny departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society.²⁷ @@@

Consequently, in order for a state to constitutionally prohibit the expression of an opinion, it must show more than a wish to avoid the discomfort that accompanies the expression of unpopular viewpoints.²⁸ The Court stated that prohibitions would not be upheld when there is no evidence that the forbidden expression "'materially and substantially interfere[s]'" with proper school disciplinary requirements.²⁹

The Court determined that the district court did not make a finding that school officials had reason to suspect that the student protest would substantially interfere with school operations or infringe upon the rights of others.³⁰ Rather, the school officials' action "appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of this Nation's part in the conflagration in Vietnam."³¹ Indeed, school authorities allowed students to wear other political and controversial symbols, including the Iron Cross, a Nazi symbol.³² The Court noted that school officials singled out the armbands worn in protest of American involvement in Vietnam.³³ Therefore, the Court concluded that "the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible."³⁴

The Court added that students' rights are not limited to the class-room.³⁵ Instead, the rights extend to the cafeteria, the playing field, and other parts of the campus.³⁶ Consequently, students may express opinions on controversial opinions as long as the expression does not "for any reason—whether it stems from time, place, or type of behavior—materially disrupt[ ] classwork or involve[ ] substantial disorder or invasion of the rights of others."³⁷ Applying that standard, the Court determined that because the record did not contain evidence that would have led school officials to expect a substantial disruption or material interference with school operations, and because no disturbances actually occurred, the school officials had unconstitutionally restricted the students' expression.³⁸

Justice Black entered a vigorous dissent.³⁹ One concern that Justice Black raised was that students and teachers might use schools "at their whim" to express themselves.⁴⁰ While acknowledging that neither the states nor the federal government could regulate the content of speech, Justice Black stated, "I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases."⁴¹

Additionally, Justice Black disagreed with the majority's conclusion that the armband-wearing students did not interfere with school activities.⁴² While acknowledging that none of the protesting students engaged in aggressive behavior, Justice Black noted that there was evidence that the armbands caused negative comments and the poking of fun at the students.⁴³ He also pointed out that disputes with one of the armband-wearing students "wrecked" a mathematics lesson.⁴⁴ Justice Black then concluded that while the students' conduct did not actually "disrupt" school work, "the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam War."⁴⁵

Justice Black was also concerned about the implications the majority's holding would have on school discipline.⁴⁶ He predicted that "some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically...