The First Amendment and Public Schools

The First Amendment and Public Schools

Key Supreme Court Cases

Tinker v. Des Moines, 1969Bethel v. Fraser, 1986

Hazelwood v. Kuhlmeier, 1988Morse v. Frederick, 2007

Tinker v. Des Moines Schools

Tinker v. Des Moines Schools

In December 1965, Sen. Robert Kennedy called for a truce in the Vietnam War

Tinker v. Des Moines Schools

Several students and their parentssupported the truce proposal.

Tinker v. Des Moines Schools

The Tinkers were a family of peace activists

Tinker v. Des Moines Schools

The students decidedto show support for the truce

by wearing...

Tinker v. Des Moines Schools

Tinker v. Des Moines Schools

The students setThursday, Dec. 16, 1965,as the day they would all

wear black armbandsin support of the truce

Tinker v. Des Moines Schools

Getting wind of the plan,the district's secondary school principals

met on Tuesday, Dec. 14, andagreed to suspend any student

who refused to remove an armband

Tinker v. Des Moines Schools

(Not the actual Des Moines principals)

Tinker v. Des Moines Schools

Five students were suspended for wearing armbands.

Three of them took their case all the way to the U.S. Supreme Court:

Christopher Eckhardt, 16 John Tinker, 15 Mary Beth Tinker, 13

Tinker v. Des Moines Schools

Tinker v. Des Moines Schools

The big 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?

Tinker v. Des Moines Schools

The court began by asking itself:

Tinker v. Des Moines Schools

The court began by asking itself:

Were the black armbands a form of symbolic speech protected by the First Amendment?

Tinker v. Des Moines Schools

The answer:

Yes, the armbands were a form of symbolic speech protected by the First Amendment.

Tinker v. Des Moines Schools

The court then asked itself:

Does a school have the power to restrict that speech in the interest of maintaining order?

Tinker v. Des Moines Schools

The answer:

Yes, if that speech posed... “A material and substantial interference with

schoolwork or discipline” or An invasion of other people's rights

Tinker v. Des Moines Schools

The court ruled that the armbands did NOT pose:

“A material and substantial interference with schoolwork or discipline” or

An invasion of other people's rights

Tinker v. Des Moines Schools

Therefore, in 1969,the Supreme Court ruled 7-2

in favor of the students

Tinker v. Des Moines Schools

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

– Justice Abe Fortas

Champion of children's rights

Summarizing School Speech

“Tinker” still stands:Students are free to speak

unlessthe speech interferes substantially

with schoolwork or discipline.

Summarizing School Speech

However...

Summarizing School Speech

Subsequent Supreme Court decisions have eroded away some of Tinker's protections

Bethel v. Fraser

Bethel v. Fraser

The scene:

Bethel High School Spanaway, Wash., 1983 A 600-student assembly Matthew Fraser, a senior, nominated a fellow

student for student body vice president

Bethel v. Fraser

The speech was filled with sexual innuendos

Bethel v. Fraser

Bethel v. Fraser

Fraser was disciplined for violatingthe school's “disruptive conduct rule”

Bethel v. Fraser

Fraser's discipline consisted of the following: Three-day suspension Prohibition from speaking at graduation Removal from the ballot used to elect three

graduation speakers

Bethel v. Fraser

The school defined “disruptive conduct”as conduct that substantially interferes

with the educational process,including the use of obscene,profane language or gestures.

Bethel v. Fraser

Fraser filed a federal lawsuitagainst the Bethel School District,

alleging violation of hisFirst Amendment rights

Bethel v. Fraser

The U.S. District Court in Seattle ruled in favor of Fraser.

The Ninth Circuit Court of Appeals in San Francisco ruled in favor of Fraser.

Bethel School District appealed to the U.S. Supreme Court.

Bethel v. Fraser

The big 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?

Bethel v. Fraser

The court first asked itself:

Was Matthew Fraser's speech the highest form of protected speech?

That is, was it pure speech, mixed speech-and-action, or symbolic speech?

Bethel v. Fraser

The answer:

No, it was lower-valued speech because of its profane, erotic content.

Bethel v. Fraser

The answer:

No, it was lower-valued speech because of its profane, erotic content.

Lower-valued speech gets intermediate scrutiny from the court.

Bethel v. Fraser

Intermediate scrutiny means:

The law furthers an important government interest. The government's interest is unrelated to

suppression of free expression. The restrictions imposed are no greater than

necessary.

Bethel v. Fraser

In 1986, the Supreme Court ruled 7-2in favor of Bethel School District

Bethel v. Fraser

The court ruled that:

Schools had an important interest in shielding younger children from vulgar and lewd speech.

Vulgar and lewd speech was inconsistent with the “fundamental values of public school education.”

Hazelwood v. Kuhlmeier

Hazelwood v. Kuhlmeier

The scene:

Hazelwood East High School Hazelwood, Mo., 1983 The Spectrum, Hazelwood's student newspaper,

prepares to publish articles on teen pregnancy and divorce

The paper changed names of the quoted students to protect their identities

Hazelwood v. Kuhlmeier

“Sixteen-year-old Sue had it all — good looks, good grades, a loving family and a

cute boyfriend. She also had a seven pound baby boy.”

Hazelwood v. Kuhlmeier

The school principal killed the articlesbefore they could be published,fearing the students could be identified

Hazelwood v. Kuhlmeier

The principal also felt that

younger students should not be

exposedto discussions of

birth controland that parents

should be allowedto respond to articles about

divorce

Hazelwood v. Kuhlmeier

Spectrum Editor Cathy Kuhlmeier andreporters Leslie Smart and Leanne Tippettfiled a federal lawsuit, alleging violation

of their First Amendment rights

Hazelwood v. Kuhlmeier

The U.S. District Court in St. Louis ruled against the students, saying that schools had a right to censor student speech if: The activities were “integral” to the school's

educational function, and The censorship has “a substantial and

reasonable basis”

Hazelwood v. Kuhlmeier

The Eighth Circuit Court of Appeals, also in St. Louis, overruled the district court in favor of the students.

Hazelwood v. Kuhlmeier

The Eighth Circuit Court of Appeals, also in St. Louis, overruled the district court.

The appeals court declared that The Spectrum was a public forum, “intended to be and operated as a conduit for student viewpoint”

Hazelwood v. Kuhlmeier

The Eighth Circuit Court of Appeals, also in St. Louis, overruled the district court.

The appeals court declared that The Spectrum was a public forum, “intended to be and operated as a conduit for student viewpoint”

Public forums require that courts use strict scrutiny when reviewing a law's constitutionality

Hazelwood v. Kuhlmeier

Strict scrutiny requires that the law be:

Hazelwood v. Kuhlmeier

Strict scrutiny requires that the law be: Necessary to achieve a compelling government

interest.

Hazelwood v. Kuhlmeier

Strict scrutiny requires that the law be: Necessary to achieve a compelling government

interest. Narrowly tailored to achieve the intended result.

Hazelwood v. Kuhlmeier

The question for the Supreme Court:

Who was right: the district court, which supported the schools, or the appeals court, which supported the students?

Hazelwood v. Kuhlmeier

The court considered the Tinker decision:

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Hazelwood v. Kuhlmeier

The court also considered the Bethel decision:

“A school need not tolerate student speech that is inconsistent with its basic educational mission.”

Hazelwood v. Kuhlmeier

To reach its decision, the court needed to answer the question at the heart of the case:

Was The Spectrum a “public forum”?

Hazelwood v. Kuhlmeier

In other words,was The Spectrum considered

a place where studentsopenly exchanged viewpoints?

Hazelwood v. Kuhlmeier

If The Spectrum was a public forum,the principal's censorship would have to pass

the highest standard of strict scrutiny

Hazelwood v. Kuhlmeier

The court's answer:

No, Hazelwood's student newspaper was NOT a “public forum.”

School-sponsored newspapers, theatrical productions and other school-sponsored expression was lower-valued speech, subject to restrictions.

Hazelwood v. Kuhlmeier

The court said that as long as...

Hazelwood v. Kuhlmeier

The court said that as long as... The activity is sponsored by the school

Hazelwood v. Kuhlmeier

The court said that as long as... The activity is sponsored by the school The school's actions are reasonably related to

legitimate “pedagogical” (educational) concerns, and

Hazelwood v. Kuhlmeier

The court said that as long as... The activity is sponsored by the school The school's actions are reasonably related to

legitimate “pedagogical” (educational) concerns, and

The activity or publication is not a public forum for student expression...

Hazelwood v. Kuhlmeier

Then...

Hazelwood v. Kuhlmeier

Schools can censor student speech that is... Ungrammatical Poorly written Inadequately researched Biased or prejudiced Vulgar or profane Unsuitable for immature audiences, or Advocates “conduct otherwise inconsistent with the

shared values of the civilized social order”

Hazelwood v. Kuhlmeier

The court's decision was 5-3

in favor of the school district

Hazelwood v. Kuhlmeier

Does the Hazelwood decisionapply to all schools?

Hazelwood v. Kuhlmeier

No

“Hazelwood” does not apply to schools that let their student publications operate as public forums, in which students make all decisions about content.

Hazelwood v. Kuhlmeier

Public-forum publications can be censored...

ONLY

...if the school can show they will cause a “material and substantial disruption” of school activities

Hazelwood v. Kuhlmeier

Schools also cannot censor student publications published off-campus without school sponsorship

Morse v. Frederick

Morse v. Frederick

The scene:

Juneau, Alaska, 2002 Olympic Torch Relay attended by Juneau-Douglas

High School students as a field trip Joseph Frederick, a senior, unfurled a banner saying

“Bong Hits 4 Jesus” The principal told Frederick to put away the banner.

He refused.

Morse v. Frederick

The principal confiscated the banner and suspended Frederick for 10 days.

She said Frederick's actions violatedschool policy, which forbids advocating

the use of illegal drugs.

Morse v. Frederick

Frederick filed a federal lawsuit againstthe school principal, Deborah Morse.

Morse v. Frederick

The question for the courts:

Can school authorities stop students from expressing views that may be interpreted as promoting illegal drug use?

Morse v. Frederick

The U.S. District Court in Alaska ruled in favor of Morse, the principal.

The Ninth Circuit Court of Appeals in San Francisco ruled in favor of Frederick, the student.

The principal appealed to the U.S. Supreme Court.

Hazelwood v. Kuhlmeier

Once again, the court considered the Tinker decision:

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Hazelwood v. Kuhlmeier

The court also considered the Bethel decision:

“A school need not tolerate student speech that is inconsistent with its basic educational mission.”

Hazelwood v. Kuhlmeier

The court also considered the Kuhlmeier decision:

The rights of students are applied “in light of the special characteristics of the school environment”

Morse v. Frederick

In 2007, the Supreme Court ruled 6-3in favor of Morse, the school principal

Morse v. Frederick

The court's reasoning: The speech was not political in nature “Bong Hits 4 Jesus” reasonably could be

viewed as promoting illegal drug use The school had an “important” if not

“compelling” interest in prohibiting or punishing student speech that promotes illegal drug use

Morse v. Frederick

Justice Clarence Thomas further argued that “Tinker” should be overturned.

He said the First Amendment was not meant to protect student speech in public schools.

Morse v. Frederick

Justices Anthony Kennedy and Samuel Alito cautioned that the decision could be used to punish those advocating constitutionally permissible, but unpopular, political ideas, such as legalizing medical marijuana use.

Morse v. Frederick

Justice John Paul Stevens disagreed with the majority because: The school banned speech

based on its content. Frederick's banner was too

vague to assume it promoted illegal drug use.

Summarizing School Speech

“Tinker” still stands: Students are free to speak unless the speech interferes substantially with schoolwork or discipline – and except if the speech is: Lewd (“Bethel”) Takes place in a school-sponsored publication or

performance (“Hazelwood”) Promotes illegal drug use (“Morse”)