Student Speech in Public Schools

2012-09-12 10:17:58


Constitutional Sources: The First and Fourteenth Amendments

The First Amendment to the United States Constitution, when applied to the states through the Fourteenth Amendment, prohibits state action that interferes with freedom of speech. State actors include state and local government entities and officials, such as public schools, school boards, and school administrators.

Constitutional limits on public school authority over students was established as early as 1943, when the United States Supreme Court decided in West Virginia State Bd. of Education v. Barnette that public school children could not be compelled to salute the American flag. Yet, case law also establishes that a public school is entitled to maintain order and accomplish its educational mission and thus may control the speech of its students more broadly than the state may regulate the speech of adults in a public forum away from campus.

Critical Values and Factors

In striking the balance between public school authority and the speech rights of students, the grade level of the student speakers and listeners is relevant. Only students in higher education are deemed to be fully prepared to develop their capacities regarding the values most often advanced as justifications for freedom of speech: the search for truth in a robust marketplace of ideas, the use of speech to shape one’s identity as an autonomous individual, and the exchange of ideas necessary for effective participation in community affairs and other democratic selfgovernance. In contrast, courts recognize that secondary schools, and even more so elementary schools, assume the responsibility of inculcating fundamental social values, a process that often requires stricter control of the style and substance of student speech.

Finally, regulation of speech will less likely conflict with First Amendment values if the regulation operates in a neutral manner, without respect to social, political, religious, or other ideological content or viewpoint. Indeed, religious speech often raises issues under both the First Amendment’s free speech clause and its establishment of religion and free exercise clause. Satisfying the mandates of both branches of the religion clause typically requires a public school to adopt a neutral stance toward religious speech, such as by allowing a religious student group the same access to after-school meeting rooms as is available to other student groups, while refraining from sponsoring or providing special support for religious speech such as school prayer.

The Trilogy of Tinker, Bethel, and Hazelwood

Three Supreme Court decisions, issued between 1969 and 1988, provide general standards for the constitutional protection of student speech in public secondary schools, a convenient starting place for analyzing speech at all grade levels. A fourth decision, Board of Education v. Pico, addresses student receipt of information through the school library, an issue closely related to student speech but beyond the scope of this article.

Tinker Protecting Nondisruptive Student Speech

In Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that the First Amendment protected the right of high school and middle school students to wear black armbands protesting the Vietnam War so long as this nonverbal speech did not materially and substantially disrupt the school’s educational program or interfere with the rights of other students, such as rights to be secure and to avert their eyes from the expression. Tinker is well known for its statement that teachers and students do not ‘‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’’

Bethel: Regulation of Indecent Speech in a School- Sponsored Activity

In 1986, in Bethel School District v. Fraser, the Supreme Court found no constitutional violation when public school officials disciplined a high school senior for using humorous sexual innuendos in a speech nominating a classmate for an office in student government. Some argue that this decision represents little more than an application of the first branch of the Tinker standard to new facts: by causing boisterous reactions from some students, the nominating speech disrupted the school’s efforts to provide students with a lesson in appropriate modes of communication in an educational program on selfgovernment.

Bethel is better known, however, for its statement that public secondary school officials, in an effort to inculcate socially responsible behavior, can constitutionally regulate indecent student speech that it deems inappropriate, regardless whether the speech actually disrupts the educational program. This might be viewed as an application of the second branch of Tinker if the Court relied mainly on a finding that the speech violated the rights of young students in a captive audience to avoid sexually indecent speech. Many courts and commentators, however, interpret Bethel more broadly to recognize tiers or hierarchies of constitutionally protected speech in public schools, developing a less protective constitutional standard for the sexually indecent speech punished in Bethel than for the nonverbal political protest protected in Tinker.

Hazelwood: Pedagogic Control of School-Sponsored Student Speech

The third case in the trilogy, Hazelwood School District v. Kuhlmeier, however, later suggested that the critical factor in Bethel was the school’s apparent association with the indecent speech: because the school in Bethel had sponsored the assembly as one of two alternative mandatory activities for students, the school assumed a responsibility to protect the sensibilities of the captive audience of children who attended, and the school might be viewed as having approved the student speech that took place. This language in Hazelwood has led some judges to characterize Bethel’s broader references to indecent language as nonbinding dictum and to conclude that the Bethel standards do not apply to independent student speech, not sponsored by the school.

In Hazelwood, decided in 1989, the Supreme Court found no constitutional violation in a high school principal’s deleting two pages of a student newspaper that contained articles about divorce and teenage pregnancy. The court based its ruling on findings that the high school had maintained the newspaper as a nonpublic educational forum that presented school-sponsored student speech as a curricular offering. The school could regulate such speech in any manner reasonably related to legitimate pedagogic concerns, without meeting the Tinker test applicable to independent student speech.

Application of the Trilogy

General Standards and Policies

Most judges will be reluctant to engage in wideranging First Amendment review of public school decisions regarding curriculum, pedagogy, and the maintenance of order in educational programs. Unless school officials attempt to impose an official orthodoxy while suppressing competing ideas on important questions that warrant debate, courts likely will defer to the judgments of elected and politically accountable school board members and the professionals appointed to administer the schools.

Because of the different educational goals of higher education, however, First Amendment protections for student speech typically will apply with greater force in public colleges and universities than in secondary and, especially, elementary schools. The pedagogic goals of higher education include the development of each student’s abilities to challenge or test accepted doctrine, to develop new theories or discover new information, and to critically evaluate and debate ideas on controversial issues. These pedagogic goals, in turn, lead to the maintenance of forums in which the First Amendment operates with significant force.

Elementary school children, on the other hand, are viewed as lacking substantial capacity to critically evaluate competing ideas on provocative topics. Instead, they require foundational instruction on basic skills, fundamental knowledge, and appropriate social values and behavior. Moreover, sensitive children may require protection from the uncivil speech of a few verbally aggressive classmates. These goals and needs justify significant control of student speech in the classroom, on the playground, and in school assemblies.

Drawing strength from language in Bethel, some courts and commentators have treated secondary schools as an extension of elementary schools, emphasizing the continuing need to inculcate fundamental social values, and justifying significant control of student speech. Other commentators, taking strength from Tinker, have argued for broad First Amendment protection of nondisruptive student speech in secondary schools. They point out that freedom of speech is one of the fundamental values that should be inculcated, that high school should provide an effective introduction to the robust marketplace of ideas in higher education, and that secondary education constitutes the final academic instruction in democratic self-governance for students who do not attend college.

Although perfect consensus on the proper balance of values at every grade level is not possible, nearly all will agree that opportunities for constitutionally protected student speech increase with the increasing maturity of students and the sophistication of their course of study, as they progress through grade levels.

Limits to Freedom of Student Speech in the Classroom

The classroom is not an open forum for student speech but is a site reserved for teaching and learning, under the direction and control of the school and the instructor. For example, although the silent, nondisruptive protest in Tinker was constitutionally protected, in no grade level will a student have a constitutional right to disrupt the educational program, such as by loudly protesting United States foreign policy in the Middle East during the instructor’s explanation of algebra in a math class or during a musical presentation at a school assembly.

Moreover, in any grade level an instructor may exercise pedagogic discretion to teach students to adopt modes or styles of expression that are appropriate for intellectual or professional discourse. For example, in a third-grade class in social studies or a graduate law school course in trial advocacy, an instructor could require students to state information or arguments in civil language, avoiding bigoted epithets, personal insults, or profanity, and the instructor could interrupt a student for violating this class rule, could lower the student’s grade for substantial failure to adhere to the rule, and could even refer the student for disciplinary action for deliberate and repeated infractions that disrupt the educational program. In contrast, speakers in traditional public forums, such as parks and street corners, would enjoy a broader right to use profane or uncivil language in protests or other speech.

Assuming that a student speaks in turn, on a relevant topic, and in a manner that comports with class rules of civility, the extent to which a public school instructor can control the substance of the ideas expressed may vary at different grade levels, partly because of the varying nature of academic inquiry at different ends of the grade spectrum. Although a college instructor could apply politically neutral standards to give a low grade to a student whose work reflected poor research and analysis, the First Amendment would not allow a public school to discipline or silence a student simply for expressing an unpopular viewpoint on a relevant topic, such as an argument against Affirmative Action in a classroom full of supporters of Affirmative Action programs. In contrast, it is conceivable that the First Amendment would permit a public elementary school instructor to suppress the relevant but dissenting views of a student if the content or viewpoint of student’s views clashed with the instructor’s inculcation of fundamental social values. Even there, however, courts are likely to draw a distinction between legitimate inculcation, on the one hand, and constitutionally impermissible indoctrination on matters of conscience.

Designated Open Forums

A public school or academic unit within the school is free to expand speech rights of students by designating a forum to be fully or partially open to speech. A college department of political science, for example, might maintain a ‘‘free speech bulletin board’’ on which the department invites students to post their opinions on any topic while enjoying the full measure of freedom of speech that the Constitution guarantees to adults in traditional public forums such as parks and street corners. The department could maintain complete control over its own official bulletin board, which it could reserve exclusively for its own speech, or it could dedicate a bulletin board to student speech while retaining restrictions on the speech. However, once it dedicated the ‘‘free speech’’ board as an open forum, it could not then censor a student’s posting on that board unless the speech fell within a recognized exception to First Amendment protection, such as obscenity.

Similarly, as a means of furthering the intellectual growth, sense of responsibility, and leadership skills of qualified students, a state university may permit the student editorial staff to exercise final discretion over the content of the university’s daily student newspaper, allowing the students to follow or reject any guidance offered by their faculty or staff adviser. If it is apparent to all that the articles, editorial opinions, and decisions regarding advertising reflect the final judgments of the student editors and not of the school, the student editors might enjoy the same freedom from state control over the content of each edition as would any newspaper publisher in the community at large. As illustrated by Hazelwood, such designation of the school newspaper as an open forum for student editors would be less common in lower grades, where pedagogic goals more likely would call for greater supervision from faculty or staff; however, if a secondary school exercised pedagogic discretion to adopt the college model described previously, it presumably could surrender control of the editors’ speech and could pave the way for a different constitutional outcome than the one reached in Hazelwood.

In addition, many colleges have designated an outdoor space, such as a campus lawn or square, as a suitable open forum for student speech. Other areas on campus, such as sidewalks between buildings, may have all the characteristics of traditional public forums and warrant full constitutional protection for student speech, even though not specifically designated to serve that purpose by school authorities. In such open forums, students presumably are free to voice even views that are offensive to others and even to convey their passion with uncivil language, so long as they avoid a few extreme forms of speech that are excluded from First Amendment protection, such as threats or obscenity, and so long as they avoid obstructing sidewalks, refrain from projecting their voices excessively into nearby buildings, and otherwise respect the rights of others to avoid the speech.

Conceivably, public elementary and secondary schools could likewise designate spaces on campus as open forums, free from the control of school authorities that would otherwise be permitted by the trilogy of Supreme Court cases. In light of the greater need to maintain order, protect the sensibilities of young student, and to inculcate basic social values, however, it is less likely that elementary or even secondary school authorities would designate an area in which student speech, without faculty guidance, would receive the fullest measure of constitutional protection. Moreover, in light of the closed nature of most elementary and secondary school campuses, and the restrictions on location and movement even of students, open spaces on such campuses would not assume the status of public forums absent designation by school authorities or other unusual circumstances.

School Uniforms and Dress Codes

Courts typically have upheld public elementary or secondary school policies that dictate a standard school uniform and are implemented for educational reasons, rather than a desire to suppress expression of ideas, particularly if the school permits students who object to the uniform to transfer to another public school that does not require a uniform. If students are permitted variation in clothing, however, dress codes that more selectively target the content or viewpoint of messages conveyed by garments, like the armband in Tinker or a T-shirt displaying a written slogan, raise more serious First Amendment issues.

Many courts have invoked language in Bethel to uphold public school policies that forbid lewd, vulgar, or otherwise indecent or plainly offensive speech, even though the speech is not school sponsored, and although such speech would be constitutionally protected in public areas off campus. On the other hand, if a T-shirt slogan conveys a political point without indecency or vulgarity, as did the arm band in Tinker, public school policies that seek to regulate the T-shirt will be governed by the Tinker standards and will be protected by the First Amendment unless the shirt would disrupt the educational program or violate the rights of other students to be secure or to avoid the speech.

These two generalizations, however, leave ample room for uncertainty and disagreement. Judges have disagreed, for example, about which standard—either an expansive interpretation of Bethel and Hazelwood or the more speech-protective rule of Tinker—applies to suppression of a T-shirt slogan that is neither indecent nor highly political but is simply inconsistent with the social values that the public school seeks to inculcate, such as respect for others or avoidance of under-age consumption of alcohol. Under one possible approach, courts would lean toward upholding such regulations in the lower grades, where the school’s responsibility for inculcation is the strongest, and courts would apply the Tinker standard in the higher grades, where inculcation gives way to training in critical inquiry. At the college level, where the need to protect students from indecency is diminished, and the task of inculcating basic social values has largely been accomplished, the Tinker standard should apply and presumably would rarely justify suppression of silent messages conveyed on articles of clothing. Middle school and high school represent the transition points between the extreme ends of the spectrum, and they likely will continue to generate continued debate on the precise standards to apply to independent student speech such as expressive clothing.

College Hate Speech Codes

In the two decades after the mid 1980s, many universities adopted hate speech policies that prohibited certain hurtful speech associated with personal characteristics such as race, national origin, gender, sexual orientation, religion, age, and disability. When applied to speech in certain contexts at state colleges and universities, such as in open forums or relevant classroom discussion, the policies were typically found to violate the First Amendment if they regulated student speech on the basis of the ideological content or viewpoint of the speech or if they reached speech that was merely offensive to others. Such suppression of controversial views is not justified by constitutional or statutory mandates to provide equal educational opportunities.

On the other hand, a public university policy likely will be upheld if it (1) prohibits only speech that is generally subject to regulation under the First Amendment in the relevant context, including the public school contexts discussed previously, and (2) the policy either prohibits all such speech, regardless of its relationship to matters of personal identity or other ideological content or viewpoint, or it prohibits a subset of such speech, based not on its content or viewpoint but on the speaker’s act of selectively directing the speech to members of defined groups. Thus, the First Amendment will permit a public school policy to prohibit students from selectively conveying credible threats of harm to members of a particular racial group.


References and Further Reading

  • Calleros, Charles R. Reconciliation of Civil Rights and Civil Liberties after R.A.V. v. City of St. Paul: Free Speech, Antiharassment Policies, Multicultural Education, and Political Correctness at Arizona State University, Utah Law Review 1992 (1992): 1205–1333.
  • Dienes, C., Thomas Connolly, and Annemargaret Connolly. When Students Speak: Judicial Review in the Academic Marketplace, Yale Law and Policy Review 7 (1989): 343–395
  • Ingber, Stanley, Socialization, Indoctrination, or the ‘Pall of Orthodoxy’: Value Training in the Public Schools, University of Illinois Law Review 1987 (1987): 15–93.
  • McCarthy, Martha, Anti-Harassment Policies in Public Schools: How Vulnerable Are They? Journal of Law and Education 31 (2002): 52–70.
  • Pedzich, Joan, Student Dress Codes in Public Schools: A Selective Annotated Bibliography, Law Library Journal 94 (2002): 41–57.
  • Pyle, Jonathan, Speech in Public Schools: Different Context or Different Rights? University of Pennsylvania Journal of Constitutional Law 4 (2002): 586–635.
  • Richards, Robert D., and Clay Calvert. Columbine Fallout: The Long-Term Effects on Free Expression Take Hold in Public Schools, Boston University Law Review 83 (2002): 1089–1140.
  • Symposium: Do Children Have the Same First Amendment Rights as Adults? Chicago-Kent Law Review 79 (2004) 3–313.
  • Weinstein, James A., Constitutional Roadmap to the Regulation of Campus Hate Speech, The Wayne Law Review 38 (1991): 163–247.

Cases and Statutes Cited

  • Bethel School District v. Fraser, 478 U.S. 675 (1986)
  • Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
  • Board of Education v. Pico, 457 U.S. 853 (1982)
  • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

See also Civil Rights Laws and Free Speech; Content- Based Regulation of Speech; Content-Neutral Regulation of Speech; Limited Public Forums; Low Value Speech; Marketplace of Ideas Theory; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Speech and Education; Threats and Free Speech; Time, Place, and Manner Rule; Wisconsin v. Mitchell, 508 U.S. 476 (1993)