The Free Speech Rights Of Students

Presented at the joint meeting of the Wisconsin Communication Association and Wisconsin Council of Teachers of English/Language Arts, Paper Valley Hotel, Appleton, WI, April 26, 2002. Note: This web version of the talk is a revised and expanded version of what was delivered in Appleton. --Tony Palmeri

Tony Palmeri, Ph.D

Department of Communication University of Wisconsin Oshkosh Oshkosh, WI 54901 (920) 424-4422 Palmeri@uwosh.edu

Tony Palmeri Delivers Free Speech Presentation

Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. -From the First Amendment

Teachers and students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. -Justice Abe Fortas, Tinker v. Des Moines School District (1969)


The K-12 school years are a time when students should be learning not just basic employment and college preparatory skills, but also what it means to be a citizen. In the United States, responsible citizenship means more than voting. Responsible citizenship means making the effort to learn about and act upon issues that affect one's community, state, nation, and world.

If students are to become responsible citizens, they need to be encouraged to speak out and display what critical education scholar Henry Giroux calls "civic courage." Sadly, American schools have too often punished outspoken students, frequently lumping thoughtful dissent and controversial reporting in the same category as mindless disobedience and reckless ranting. Compounding the problem is the fact that the majority of parents, teachers, and administrators are literally clueless as to what are the legal free speech rights of students in schools.

The US Supreme Court has issued opinions on student speech in three broad areas: political expression, vulgar and indecent expression, and school sponsored expression. I would like to summarize the Court's opinions in each area, followed by some advice for teachers on how to balance the power the law gives school authorities to censor speech with the responsibilities of ethical pedagogy.

Political Expression: The Tinker Decision

Mary Beth Tinker was a 13-year-old junior high school student in December of 1965 when she, her 15-year-old brother, and 16-year-old friend decided to wear black armbands to their schools during the holiday season as a protest against the war in Vietnam. The principals of the schools warned the students that they would be suspended if they wore the armbands. Not deterred, the students wore the armbands and with parental support fought the school district in court to uphold their First Amendment right to express their opposition to the war in school in the manner in which they did.

The Supreme Court ruled in favor of Tinker, the majority arguing that while the First Amendment rights of students are not equal to adults outside the school, the school district failed to show that Tinker's wearing of the armband disrupted the activities of the school in a "material and substantial" way. While the Tinker decision has been heralded as a great stride in upholding the First Amendment rights of students, a close reading of the decision indicates that the court majority approved of the black armbands only because they produced no "disruption" of school activities, nor could the principals reasonably predict in advance that disruption could occur. The problem with this reasoning is that it defends student protest activity only if that protest activity has no visible impact on the communicative environment or on the targets of the message. In other words, the court is saying that student protest activity will be protected only if the activity fails to accomplish what has traditionally been a major purpose of protest: to disrupt activities in a material and substantial way.

*Tinker v. Des Moines School District (1969)

*Introduces the "material and substantial disruption" test

As careful observers of the Tinker decision could have predicted, the Court's "substantial and material disruption" test has not served as a strong protection for most forms of student speech. We can see this in the Fraser and Hazelwood decisions.

Vulgar and Indecent Expression: The Fraser Decision

Matthew Fraser was a high school honors student in Pierce County, Washington. Speaking before an audience of mostly 14 year olds, Fraser nominated his friend for student council. The speech was laced with sexual innuendo:

I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is firm-but most . . . of all, his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts-he drives hard, pushing and pushing until finally-he succeeds.

Jeff is a man who will go to the very end-even the climax, for each and every one of you.

So vote for Jeff for A.S.B. vice-president-he'll never come between you and the best our high school can be (cited in Thomas L. Tedford, Freedom of Speech in the United States, 2nd edition. New York: McGraw-Hill, 1993: pp. 297-298).

The school suspended Fraser. Applying the Tinker test, the Supreme Court found that Fraser's speech had not disrupted the activities of the school in a material and substantial way. Still, they ruled against Fraser because schools have an "interest in teaching students the boundaries of socially appropriate behavior." In setting aside the "substantial and material disruption" criteria of Tinker, the Fraser decision provides school districts with extraordinary censorship power. Since the Court provided little guidance as to what constitutes "vulgar" and "indecent" speech, or what is "socially appropriate," it is left in the hands of school district personnel to make the determination.

*Bethel School District v. Fraser (1986)

*Even if speech does not cause material and substantial disruption, schools have an "interest in teaching students the boundaries of socially appropriate behavior."

*Case left open these important questions: Can schools censor all vulgar student speech? Or only that which occurs at school-sponsored events or in school publications?

Tinker and Fraser dealt with expression not sponsored by the schools in question. What about situations, such as the school newspaper, where the school is the sponsor?

School Sponsored Expression: The Kuhlmeier Decision

In Hazelwood vs. Kuhlmeir, school district officials had censored student authored articles on pregnancy and divorce that dealt with the real lives of students enrolled at the school. Had a reporter for the local newspaper written the articles, they would be granted full constitutional protection. However, the fact that the school officials were concerned that the content of the materials was inappropriate for younger readers was interpreted by the Court as a "valid educational reason" for censoring the material. The Court also agreed with the district that school officials should be able to censor any student material that might imply the school takes a position on controversial political issues: "A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate . . . conduct . . . inconsistent with the shared values of a civilized social order, or to . . . associate the school with any position other than neutrality on matters of political controversy."

In a strongly worded dissent, Justice William Brennan angrily chastised the majority for in essence overturning Tinker:

"The Court opens its analysis in this case by purporting to reaffirm Tinker's time-tested proposition that public school students do not `shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' That is an ironic introduction to an opinion that denudes high school students of much of the First Amendment protection that Tinker itself prescribed. Instead of 'teach[ing] children to respect the diversity of ideas that is fundamental to the American system,' and 'that our Constitution is a living reality, not parchment preserved under glass,' the Court today 'teach [es] youth to discount important principles of our government as mere platitudes.' The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.

Judge Brennan's indignation is perhaps warranted, but masks the fact that the Tinker protections, as I suggested earlier, were not that strong in the first place. The problem is in the Court's assumption--held by judges in the majority and minority of each case--that "disruption" of school activities necessarily prevents the school from meeting its mission. Yet it is entirely possible that speech induced "disruption" in some circumstances may in fact be the most educational experience students can have while in the school.

*Hazelwood School District v. Kuhlmeier (1988): "A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate . . . conduct . . . inconsistent with the shared values of a civilized social order, or to . . . associate the school with any position other than neutrality on matters of political controversy."

*School officials must have good educational reason for censoring material.

*School officials cannot censor school sponsored student speech simply because they disagree with its content.

The Tinker, Fraser, and Hazelwood decisions have been interpreted by lower courts as allowing school districts wide discretion in restricting the time, place, and manner of student speech.

Time, Place, and Manner Restrictions on Student Speech

Students may leaflet, hold rallies, and engage in any other activity practiced by adults on the outside of the school, but how they engage in such activities can be severely restricted according to time, place, and manner. For example, schools can say that leaflets can be distributed, but not in the cafeteria, during classes, or in study hall since to distribute in those areas would "disrupt" educational activities. Each school district may establish its own reasonable time, place, and manner restrictions

Reasonable time, place, and manner restrictions have been defined as those that are content neutral, facilitate a substantial school interest, and leave open alternative channels of communication. The problem has been that once the school identifies a "substantial" interest (e.g. "order" or "teaching students the boundaries of socially appropriate behavior"), that interest "trumps" the student's First Amendment rights.

Power v. Pedagogy: How to handle student speech controversies

Conclusion: Academic Freedom For K-12

American courts have never identified freedom of expression as an absolute right. Since the 1790s, the First Amendment has been interpreted along the lines suggested by British jurist Henry Blackstone: freedom of speech only means that the government cannot place "prior restraints" on communication. In the twentieth century, the Supreme Court defined certain categories of speech that could be restricted without violating the First Amendment. These "categorical exceptions" to the First Amendment include incitement to illegal conduct, fighting words, defamation, speech that would compromise national security, and obscenity.

For public school teachers, the principle of "academic freedom" is a kind of "special protection" for teachers based on the principle that the quest for truth requires the ability to speak and write about controversial matters without having to suffer punishment from administrators or government officials. In Keyishian v. Board of Regents (1967), Judge Brennan wrote that "our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned . . . 'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools' . . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, rather than through any kind of authoritative selection." (cited in Tedford, pp. 305-306).

The principle of academic freedom--which is never as strong in practice as it is on paper--protects not only the teacher's right to teach but the student's right to learn. Court decisions since Tinker dealing with student speech at the K-12 level have made the notion of academic freedom at that educational level almost irrelevant. What are the long term consequences for a society when it educates its students to believe that "authority figures" have the responsibility to decide what is "socially appropriate" and "civilized?" Thankfully, we American adults still have the freedom to inquire and speak about such questions--students can inquire and speak about such questions also as long as they are not "disruptive" while doing so.

Tony Palmeri welcomes your feedback

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