Free Speech in Schools

Facts of the Case

To protest the Vietnam War and support a proposal for a Christmas truce, five children in Des Moines, Iowa chose to wear black armbands to their schools. John Tinker and Christopher Eckhardt wore them to a high school, Mary Beth Tinker wore it to a junior high school, and Hope and Paul Tinker wore them to elementary school. In an attempt to pre-empt this action, the principals of the schools implemented a policy that would require children in school to remove armbands. If they refused to comply, they would be suspended and sent home until they did.

The two children who wore the armbands to elementary school received no penalty, but the other three were suspended on the basis of their armbands for the duration of the protest. In conjunction with the ACLU and the state Civil Liberties Union, the parents of the Tinkers challenged the action of the school board in federal district court. Its decision upholding the policy was sustained when the Eighth Circuit deadlocked in its review, which resulted in a direct appeal to the Supreme Court.

Question

Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?

Opinions

Majority (7): The majority asserted that the First Amendment protected the speech and expressive conduct of children in public schools, which meant that any policy restricting speech would need to be justified on constitutional grounds. While a school board will receive some deference from courts, it must be able to cite something more than discomfort, awkwardness, or inconvenience as a basis for restricting speech. A concern that the speech or expressive conduct would interfere with school discipline is an example of a justification that probably would persuade a court to uphold a policy rationally connected to that concern. In this situation, however, wearing the armbands did not undermine school discipline, so the policy was unconstitutional.

Minority (2):  

Black voiced his disagreement with the entire line of Supreme Court jurisprudence that had permitted the First Amendment to protect expressive conduct. He thought that it should be strictly limited to speech alone. Also, he agreed with the school board that wearing the arm bands was disruptive and interfered with discipline.

Harlan found nothing in the evidence regarding the policy to suggest that the school board had an improper motive in deciding to implement it.

Case Commentary

Even if a topic is controversial, and some disruption may occur, expressive conduct is protected by the First Amendment. This decision is somewhat surprising because courts usually show greater deference to schools, based on their importance in helping children grow into disciplined, mature adults. Decisions since Tinker have taken a more restrictive view of free speech rights in this setting.

Facts of the Case

At Bethel High School in Pierce County, Washington, senior student Matthew Fraser used a series of sexual double entendres in a speech that nominated one of his classmates for the position of Associated Student Body Vice President. The school administration found him in violation of policies regarding vulgar speech and disruptive behavior. He appealed these findings through the internal grievance procedures of the school but was unsuccessful. The school barred Fraser from speaking at graduation, even though a write-in vote would have selected him as one of the three speakers. He also was subject to other penalties, including a suspension.

When Fraser brought a First Amendment claim against the school, he succeeded in federal district court and at the Ninth Circuit, which supported a broad view of free speech protections.

Question

Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?

Opinions

Majority (7): Finding that the school's policy did not infringe on First Amendment rights, the majority tried to distinguish its reasoning from the precedent in Tinker v. Des Moines (1969). This decision had seemed to rule resoundingly in favor of free speech protections in schools. The majority used this case to narrow the holding in Tinker, allowing schools to regulate certain types of speech, such as those that are vulgar, on the grounds that they could disrupt school discipline. Since the speech in question was not political, as it was in Tinker, it was entitled to a lower level of protection.

Minority (2)

Case Commentary 

Schools have the responsibility of instructing students in what constitutes socially appropriate behavior and speech, so they have the right to punish inappropriate speech. It also interfered with the operation of the school by requiring it to explain the situation to younger students.

Facts of the Case

Students in a journalism class at Hazelwood East High School in St. Louis County, Missouri collaborated on producing a student newspaper known as The Spectrum. The newspaper, which appeared every three weeks, was funded in part by the school district's Board of Education, since its sales to school and community members did not support it financially.

The principal of the school, Robert Reynolds, objected to two stories that were planned for the May 13, 1983 issue of the newspaper when they were submitted to him by Howard Emerson, the instructor, according to the usual policy. His concerns related to the privacy of students interviewed in the stories, which addressed teen pregnancy and divorce. He felt that interviewing three students who had been pregnant was inadvisable because they could be recognized by other students who knew them, and he also felt that a story criticizing a student's father for his relationship with the student's mother should not be published without giving the parents a right to respond or consent.

As a result, Reynolds simply published a version of the newspaper that omitted the two pages on which the stories were printed. (Five other articles were eliminated in the process.) However, he made this decision following discussions with his supervisors on the school board and did not tell the students before publication or give them an opportunity to address the issue. Three students, one editor and two reporters, brought a claim. The editor pointed out that the newspaper had covered similar topics before without negative consequences.

The students were unsuccessful in federal district court, which viewed controlling student speech as important to the proper educational functioning of schools when there was a substantial reason to regulate it. By contrast, the Eighth Circuit relied on First Amendment jurisprudence regarding public forums in holding that censorship of a student newspaper was inappropriate without proof that it would substantially interfere with school discipline or the rights of other students.

Question

Did the principal's deletion of the articles violate the students' rights under the First Amendment?

Opinions

Majority (5): Using a more deferential standard of review than the Eighth Circuit, the Court seemed to apply a rational basis test that allowed schools to control the speech of students in school activities if the restriction on speech bore a reasonable relation to a legitimate concern. White noted that the school's dominant role in operating the newspaper meant that it was not actually a public forum but served a pedagogical purpose. According to him, speech that is contrary to a school's educational mission can be barred from being released in that environment. 

However, there were some limitations on the decision. It did not strike down state or municipal laws on this specific topic, simply finding that the First Amendment does not provide any additional inherent protections. White also hinted that the ruling applied only to secondary schools, where the students are children, rather than colleges or other educational institutions with adult students.

Minority (3):  Joined by Justices with a notably expansive view of First Amendment protections, Brennan argued that the Court should have shown more respect for the individual rights of students. He felt that the principal acted in a manner inconsistent with democratic principles and thus set a poor example for children through his official conduct.

*Justice Kennedy recused himself

Case Commentary

Courts are divided on whether the decision applies to universities, so the Court may need to return to this issue in that context. It is also important to note that Hazelwood does not apply to student speech outside the school and school-sponsored activities. The school had the right to control the newspaper because it provided its funding. If it had been supported independently, such as through its own sales, the principal probably could not have exercised control over censoring articles.