Exceptions to student speech rights under Tinker
By Lea Filippi of Sedor, Wendlandt, Evans & Filippi, LLC
Part two of a four-part review of Freedom of Expression in Schools.
“I’ll get you, my pretty, and your little dog too!”
No one should challenge enemies to a duel, shout “Fire!” in a crowded theater, or threaten their neighbor’s niece and her adorable terrier. The government can limit false advertising and criminalize publishing obscene materials. But the First Amendment keeps adults mostly free to spread the news (both real and “fake”), share bad ideas, and even say mean things to each other.
Things are different at school. To educate students, schools need to be able to control the clamor of voices, direct the conversation, and modulate the volume of the marketplace of ideas. Not only can students be made to raise their hand and wait to be called on in class, there are even things that students can be forbidden from saying at school at all (or be disciplined for saying if they do).
Last month we began our four-part series by discussing the speech rights of students under Tinker. You can read it here. This month we explore exceptions to those rights.
Tinker established that the First Amendment does not prevent schools from limiting student speech that materially disrupts class work or involves substantial disorder or invasion of the rights of others. Under Tinker, whether speech can be barred as disruptive depends on specific circumstances and can be tricky to decide. Courts have identified three areas where schools have the latitude to regulate student speech without wading into a detailed analysis of how disruptive that speech is really likely to be.
Schools can categorically restrict student speech that takes a vulgar, lewd, or profane form. In Fraser the court ruled that a school could discipline a student who during a school assembly nominated a classmate for election as student body vice president in a speech filled with sexual innuendo that the school and the court viewed as lewd. Following Fraser, students can be forbidden from using four-letter words, disciplined for doodling some of the classics of graffiti, and prevented from laying on the innuendo when they nominate a friend to student council.
“How I know that Santa isn’t real” — The School Gazette
Another area in which schools have authority to regulate speech without a detailed Tinker analysis is school-sponsored speech. Students have a certain amount of freedom to speak their mind at school. They can wear black armbands and other symbols of silent protest and can say (or not say) the Pledge of Allegiance. But it’s different when students are not speaking solely for themselves.
The Kuhlmeier case involved a journalism class newspaper with articles about divorce and teen pregnancy that a school principal thought was inappropriate, unsuitable for younger students, and did not meet journalistic standards of fairness. The principal prohibited those articles from being published. A court ruling on a legal challenge to the principal’s decision found the school had a legitimate interest in preventing the publication of inappropriate articles in a paper that might appear to have the imprimatur of the school.
Student council bulletin boards and flyers, class newspapers, science fair presentations, talent shows, band and orchestra concerts, yearbooks, and school plays. Those can all involve student speech, but students speaking through those mechanisms can appear to have their school’s blessing, so schools have authority to regulate their content. Schools can decline to publish materials that associate the school with positions other than neutrality on matters of political or social controversy. Schools can prohibit class newspapers from publishing articles on topics like teenage sexual activity or alcohol use. When making decisions about school-sponsored speech, schools can take into account the emotional maturity of the audience. An elementary school could, for example, decide not to sponsor a debate on the existence of Santa Claus.
“Bong Hits for Jesus”
What does that even mean? Joseph Frederick – the Juneau student who wrote those cryptic words and unfurled them on a banner during an Olympic Torch Relay that his school turned out to watch – couldn’t quite say. His principal thought it had to do with marijuana. She told Joseph to put the banner away. He didn’t. She confiscated the banner and suspended him from school for violating a policy against advocating illegal drug use. In litigation that went all the way to the United States Supreme Court, Joseph said the sign was not political, that it was just meaningless and funny and intended to get him on television. Recognizing that schools have an important, perhaps compelling, interest in deterring drug use, the Court sided with the principal and confirmed that schools can restrict at school (and school events) student speech that can reasonably be viewed as promoting illegal drug use.
Together these cases establish that while limits on student speech are generally subjected to a Tinker analysis asking how reasonable it was to think speech restricted by a school would materially disrupt classwork or cause disorder or invasion of the rights of others, there are exceptions when that detailed analysis does not apply. Schools can regulate school-sponsored speech in ways reasonably related to legitimate educational concerns. Schools can also prohibit students from using language that is vulgar, lewd or profane or might reasonably be interpreted as advocating illegal drug use without any detailed showing of the likelihood of disruption.
Read the entire series on Freedom of Expression in Schools
Part one: “I pledge allegiance to [which?] flag …”
By John Sedor
Part three: Free Speech Rights of School Employees
By Allen Clendaniel
By Clint Campion
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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.