Tinker

In this panel we consider three important Supreme Court decisions regarding the limits on student first amendment freedoms. In the first, Tinker v. Des Moines School District, the Court affirmed students right to engage in a non-disruptive display of their protest against the war in Vietnam. In the second, Bethel School District v Fraser, the Court affirmed a school's right to discipline a student for giving a raunchy auditorium speech after being twice warned not to do so. In the third, Hazelwood School District v. Kuhlmeier the Court upheld the right of school districts to censor student publications which had not been established as a public forum for communications. Taken together the three cases provide excellent insight into the Courts' treatment of free expression issues. Each of the cases seems rightly decided: the problem lies in finding a brightline rule of decision applicable to future cases. Tinker should have been able to wear an armband; Fraser's speech had no place in a high school; there plainly must be some limits on the content of a school sponsored newspaper. But where exactly is the line?

In 1965 several students decided to wear black armbands to their Des Moines High School to communicate their hope for an armistice in the undeclared war in Vietnam. The protest was intended to be entirely peaceful. No student planned on disrupting classroom discipline in any respect. Other studens had freely worn buttons displaying a variety of messages, including even Nazi symbols. But for some reason, the school administrators chose here to promulgate a new regulation barring students from wearing arm bands to schools. Tinker and others were suspended from school spawning an important case in the first amendment jurisprudence: TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969).In affirming the students' right to engage in a non-disruptive display of their views, the Court noted that 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. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent.2 See also Pierce v. Society of Sisters, [393 U.S. 503, 507] 268 U.S. 510 (1925); West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333 U.S. 203 (1948); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas (1968).

The Court reaffirmed the right of schools to regulate types of clothing, length of skirts, hair style and deportment. All of these regulations, of course, do not seek to limit students silent passive expression of opinion. Nor could the regulation be justified by the fear that it might trigger hostile action by other students:

But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); 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....In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend."

In BETHEL SCHOOL DIST. NO. 403 v. FRASER, 478 U.S. 675 (1986) a public high school student delivered a speech nominating a fellow student for a student elective office at a voluntary assembly that was held during school hours as part of a school-sponsored educational program in self-government, and that was attended by approximately 600 students, many of whom were 14-year-olds. (Court syllabus) During the entire speech, the speaker referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Some of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed. Prior to delivering the speech, the student had discussed it with several teachers, two of whom advised him that it was inappropriate and should not be given. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provided "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." The morning after the assembly, the Assistant Principal called respondent into her office and notified him that the school considered his speech to have been a violation of the school's disruptive-conduct rule. Respondent was given copies of teacher reports of his conduct, and was given a chance to explain his conduct. After he admitted that he deliberately used sexual innuendo in the speech, he was informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises.

The lower courts had seen no constitutional distinction between the protected expression in Tinker and the speech given by Fraser, but the Supreme Court disagreed. Tinker had engaged in political discourse. Fraser had been disciplined for violating rules of common decency: While citizens may violate decency rules in adult forums, those same rules do not apply to school functions.

Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the "fundamental values necessary to the maintenance of a democratic political system" disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the "work of the schools." Tinker, 393 U.S., at 508; see Ambach v. Norwick, supra. The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers - and indeed the older students - demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.

The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech undermine the school's basic educational mission, the Court concluded. "A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public school education."

he Court refined the Tinker holding in HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER, 484 U.S. 260 (1988). The case involved a high school newspaper written and edited by a journalism class, as part of the school's curriculum. The journalism teacher traditionally submitted page proofs to the school's principal who retained the right to remove articles from the newspaper. On the occasion which gave rise to the litigation, the principal objected to an article about pregant high school students, "because the pregnant students, although not named, might be identified from the text, and because he believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students." The principal also objected to an article about a divorced parent. Consequently, the principal ordered that the the pages on which these articles appeared be withheld from publication.

The Court began by reaffirming Tinker's holding: "Students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Tinker, supra, at 506. They cannot be punished merely for expressing their personal views on the school premises - whether 'in the cafeteria, or on the playing field, or on the campus during the authorized hours,' 393 U.S., at 512-513 - unless school authorities have reason to believe that such expression will "substantially interfere with the work of the school or impinge upon the rights of other students." Id., at 509. By the same token, post-Tinker cases had held that adult and student first amendment rights are not the same:

We have nonetheless recognized that the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and must be "applied in light of the special characteristics of the school environment." Tinker, supra, at 506; cf. New Jersey v. T. L. O., 469 U.S. 325, 341-343 (1985). A school need not tolerate student speech that is inconsistent with its "basic educational mission," Fraser, supra, at 685, even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was "sexually explicit" but not legally obscene at an official school assembly, because the school was entitled to "disassociate itself" from the speech in a manner that would demonstrate to others that such vulgarity is "wholly inconsistent with the `fundamental values' of public school education." 478 U.S., at 685-686. We thus recognized that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," id., at 683, rather than with the federal courts. It is in this context that respondents' First Amendment claims must be considered.

The Court asked whether the newspaper should be regarded as a forum for public expression.

The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that "time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515 (1939). Cf. Widmar v. Vincent, 454 U.S. 263, 267-268, n. 5 (1981). Hence, school facilities may be deemed to be public forums only if school authorities have "by policy or by practice" opened those facilities "for indiscriminate use by the general public," Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 47 (1983), or by some segment of the public, such as student organizations. Id., at 46, n. 7 (citing Widmar v. Vincent). If the facilities have instead been reserved for other intended purposes, "communicative or otherwise," then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. 460 U.S., at 46, n. 7. "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 802 (1985). (emphasis added).

Since the journalism class did not constitute a forum for public expession, school officials could impose reasonable restrictions on members on student expression. Tinker did not involve censorship of the content of school activities fairly characterized as part of the school curriculum. The Tinker standard does not apply to exercise of editorial control over the style and content of student speech in school-sponsored expressive activities. Rather, editorial control will be upheld "so long as their actions are reasonably related to legitimate pedagogical concerns."

The question whether the First Amendment requires a school to tolerate particular student speech - the question that we addressed in Tinker - is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

The standard applicable to school-sponsored expressive activities focuses upon whether censorship has a "valid educational purpose:"

This standard is consistent with our oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges. See, e. g., Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 208 (1982); Wood v. Strickland, 420 U.S. 308, 326 (1975); Epperson v. Arkansas, 393 U.S. 97, 104 (1968). It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so "directly and sharply implicate[d]," ibid., as to require judicial intervention to protect students' constitutional rights.

Since the principal's actions were reasonably related to a valid educational purpose, the censorship was upheld.

Recently, the United States Tenth Circuit Court of Appeals considered constitutional limits to free speech in the Confederate Flag Case, West v. Derby Unified School District No. 260, 260 F.3d 1358 (10th cir. 2000). Some commentators have suggested that the Supreme Court's refusal to hear Derby amounts to an implicit rejection of Tinker, but this is not so as we shall see. The school district maintained the following policy:

District employees and student(s) shall not racially harass or intimidate another student(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice. District employees and students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. (Examples: clothing, articles, material, publications or any item that denotes Ku Klux Klan, Aryan Nation-White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other "hate" group. This list is not intended to be all inclusive). Violations of this policy shall result in disciplinary action by school authorities. For students there will be a three day out-of-school suspension for the first offense with a required parent conference prior to readmittance. . . .

A middle school suspended a student for violating this policy when he drew a picture of the confederate flag during math class. It is important, when analysing this case to keep its factual predicate in mind. The Court's opinion notes that the policy resulted from concrete problems occuring within the district. in early 1995, several verbal confrontations occurred between black and white students at Derby High School. Some white students wore shirts bearing the image of the Confederate flag, while some black students wore shirts with an "X", denoting support for the teachings of Malcolm X. Members of the Aryan Nation and Ku Klux Klan became active off campus circulating materials to students encouraging racism. Around the same time, graffiti stating such things as "KKK" (Ku Klux Klan), "KKKK" (Ku Klux Klan Killer), and "Die Nigger" appeared on campus in bathrooms and on walls and sidewalks. School officials received reports of racial incidents on school buses and at football games. At least one fight broke out as a result of a student wearing a Confederate flag headband. The opinion noted that after adoption of the new policy, referrals for racial incidents in the school district dropped significantly.

The student argued that the record was devoid of any inference that he had a specific intent to harrass or intimidate. But the Court rejected any notion that the Constitution requires a finding of an intent to harass or intimidate before the Derby School District may apply its "Racial Harassment and Intimidation" policy to noncomplying students. The Court's decision begins with recognition that where school authorities reasonably believe that a student's uncontrolled exercise of expression might "substantially interfere with the work of the school or impinge upon the rights of other students," they may forbid such expression. However, mere undifferentiated fear or apprehension of a disturbance is not enough to overcome a student's right to freedom of expression. In this case, school officials had evidence from which they could reasonably conclude that possession and display of Confederate flag images, when unconnected with any legitimate educational purpose, would likely lead to a material and substantial disruption of school discipline. "School officials in Derby had evidence from which they could reasonably conclude that possession and display of Confederate flag images, when unconnected with any legitimate educational purpose, would likely lead to a material and substantial disruption of school discipline." The flag had come to symbolize oppression of a minority group, and in the specific district its display had resulted in violence.