Administrative Regulation of Student Expression

by Tony Palmeri

[note: This essay will be delivered at the annual meeting of the Central States Communication Association in Omaha, Nebraska on April 12, 2003. I welcome your feedback:].

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)

Especially at the K-12 level, school administrators are legally granted substantial power to regulate student expression. Justice Fortas' famous 1969 statement in Tinker v. Des Moines (quoted above) has often been cited as a "high point" of the Supreme Court's protection of student speech from which over the last thirty-plus years the Court has been retreating. In actual fact, while it is true that administrative regulatory power of student expression has been enhanced since Tinker, the Tinker decision only made it more difficult for administrators to enforce prior restraint of such expression. If the First Amendment is interpreted to mean only that government cannot restrain speech before it is expressed-an interpretation that has dominated our Court system since the 1830s, then Tinker provided students only with the same weak protections enjoyed by adults outside the school.

The US Supreme Court has issued opinions on student speech in three broad areas: political expression, vulgar and indecent expression, and school sponsored expression. This brief paper will: (1) summarize the Court's decisions in each broad area of speech restriction in order to show how the notion of administrative regulation of K-12 student expression has developed over the years, (2) discuss administrative regulations of college student expression, (3) provide advice on how to handle student speech controversies, (4) close with a commentary on the connection between academic freedom and student expression.

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, 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 Tedford, 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.

Administrative Regulations On College Campuses: Speech Codes, Corporate Censorship, Free Speech Zones, the USA PATRIOT ACT
Legally, speech restrictions on public college campuses must be narrowly tailored to accomplish a specific, legitimate purpose. Restrictions on playing loud music in a residence hall after a certain hour, for example, present no constitutional problem since the majority right to sleep trumps the right of the individual to express him or herself through loud music. On the other hand, college administrators frequently "overreach" in their attempts to regulate campus speech. What follows are four specific examples.

Speech Codes: On university campuses, the 1980s and 1990s saw more than 100 campuses adopt speech codes in order to regulate hate speech. (Fraleigh and Tuman, p. 175). The codes varied in the kinds of sanctions that could be imposed for violation, though most at minimum included a formal reprimand. Court battles over speech codes at high profile institutions including the University of Michigan, University of Wisconsin, George Mason University, and Stanford University gained national attention. District court judges found the speech codes of each unconstitutional on the basis of vagueness and overbreadth.

Corporate Sponsorship: Perhaps a bigger threat to student expression on college campuses is that posed by the ever-growing corporate sponsorship of university activities. In 1996, University of Wisconsin Madison administrators inked a multi-million dollar deal with Reebok giving the company exclusive rights to make and market athletic wear bearing the Wisconsin logo. The agreement included a speech restriction clause:

Additionally, the university will promptly take all reasonable steps necessary to address any remark by any university employee, agent, or representative, including a coach., that disparages Reebok, university's
association with Reebok, Reebok's products, or the advertising agency or others connected with Reebok. Nothing herein is intended to abridge anyone's First Amendment rights
. (cited is Soley, 2003, p. 9).

Though Reebok's proposed "non-disparagement" clause with UW-Madison was pulled from the final deal after widespread campus protest (though it does still apply to coaches if they sign a promotional contract), the increased corporatization of the university almost certainly will have negative effects on free speech.

Free Speech Zones: Another contemporary administrative regulation of student expression on college campuses is the "free speech zone." Responding to 1960s style protests, administrators at more than 20 campuses have created small spaces on campus where protest and other types of demonstrations can "officially" take place. Often, the zone is in a remote part of the campus, away from the majority of students, faculty, and staff whom the speech activity is trying to reach. Free speech zones have been in existence at some campuses since the 1960s or before, but in the last 5 - 10 years their creation by administrators has been largely a response to the anti-sweatshop movement, though a lawsuit challenging zones at the University of Houston has been brought forward by an anti-abortion student group. More common than lawsuits have been vigorous protest of free speech zones. At the University of Wisconsin, protest succeeded in getting zone restrictions lifted.

The USA PATRIOT ACT: Finally, the USA PATRIOT ACT ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"), though not sponsored by college administrators, places them in a position of potentially having to chill student expression. The Act itself exempts from investigation any activity "conducted solely upon the basis of activities protected by the first amendment to the Constitution." Yet the expanded investigatory and surveillance powers given to federal agents make the exemption almost irrelevant. For example, the Act greatly expands the power of federal agents to obtain student records and perform electronic surveillance. Administrative officers on a campus can be compelled to turn over student records without even having to inform the student in question. This can have devastating consequences for free speech on our campuses as students may engage in self-censorship rather than take the risk of being labeled a terrorist and expose him or herself to invasive searches.

One example of a university administration employing the PATRIOT Act as a rationale for attempting to restrict student speech occurred last year at the University of California - San Diego. University officials attempted to place two student groups on probation and threatened to deny them access to and use of university facilities. ("Free speech on student web sites") Their crime? Placing links on their Web sites to the Web sites of groups identified by the State Department as "terrorist organizations." Director of University Centers Gary Ratliff argued that the links to the terrorist groups provided "material support" to those organizations in violation of the PATRIOT Act. Intervention by the AAUP and several free speech organizations forced the San Diego administration to back down, though the fact that the administration attempted the restriction in the first place ought to send a chill down the spine of anyone concerned with the need of a campus community to have freedom of access to information for purposes of research and study.

Power v. Pedagogy: How to handle student speech controversies

Conclusion: Academic Freedom And Student Expression
American courts have never identified freedom of expression as an absolute right. Since at least the 1830s, 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" 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 also the student's right to learn. Court decisions since Tinker dealing with K-12 student speech have made the notion of academic freedom at that level almost irrelevant. What are the long-term consequences for a society when it educates students to believe that "authority figures" have the legal right to decide what is "socially appropriate" and "civilized?" And what about the rights of expression for college students in an era of increased corporate control of the university and the "war on terror?" Are we reaching the point where restrictions on speech are rationalized as the "price to pay" for increased corporate contributions and "protecting" ourselves from terrorists?

These and similar questions have yet to be answered satisfactorily by scholars or popular commentators. Perhaps even more disconcerting is the possibility that post-9/11 fear and paranoia has made it more difficult even to raise such questions.


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