Supreme Court Quartet: Student
Free Speech Rights
(a) Tinker v. Des Moines
Independent
School District (black armband case) - the decision
is applicable to personal self-expression by students (and not
school-sponsored speech). In such cases, a public school can discipline
a student if it can show the speech caused material or substantial
disruption of school activities. The school can also prohibit student
speech in advance of it occurring if it can reasonably forecast
disruption if the speech were allowed to occur. Note the cases
involving a ban on the display of the confederate flag that look to see
if there have been past incidents of racial tension in the school to
determine if such a ban satisfies Tinker.
Issues left unresolved by Tinker:
Does Tinker apply to student
speech that occurs away from school?
Does Tinker apply if the
student speech is prevented or punished based on something other than
its content or viewpoint? (See Canady
v. Bossier Parish School Board, a school uniform
case, in which the court did not apply the Tinker test to a school uniform
policy because the policy was viewpoint neutral. The court instead
applied intermediate scrutiny and required the school to show it had
chosen a narrowly tailored means to accomplish an important or
substantial government interest that was not designed to suppress
expression, a test it found the school’s policy satisfied.)
Does Tinker apply only to
political expression by students?
(b) Bethel School District
No. 403
v. Fraser (sexually suggestive nominating speech at
school assembly)
Speech that falls under Fraser,
lewd and profane speech, can be proscribed or punished without a
showing of disruption or any other reaction to the speech.
Unresolved issues relating to location of speech:
Is Fraser limited to speech
at official school events such as at a school assembly or during a
class or does it apply to all speech that occurs at school? (Most lower
courts have concluded that Fraser
applies to all speech that occurs at school.)
Could Fraser even be applied
to speech that occurs away from school such as speech posted online?
(Most lower courts have concluded that Fraser does not apply to speech
that occurs away from school)
Unresolved issues relating to the type of speech:
What is scope of the speech that can be regulated under Fraser? Fraser clearly applies to
indecent and profane speech (lewd speech, including sexually suggestive
speech and explicit sexual references, and vulgar language, slang
expressions for sexual activities and excretory functions). But there
is still a question about how vulgar the speech has to be to fall
within Fraser.
Can Fraser apply to speech
that is offensive for other reasons: insults based on race, ethnicity,
religion, gender, sexual orientation, and other personal
characteristics? Since such speech can be part of political
expression which is governed by Tinker
rather than Fraser, this
issue is a difficult one and the lower courts are divided. Note Scott v. School Board of Alachua County
in which the school board argued that Fraser
was applicable because the
display of the confederate flag was offensive and should be governed by
Fraser. In Scott, the Eleventh Circuit upheld
the ban on the display of the confederate flag on the authority of both
Tinker and Fraser, refusing to choose between
them.
(c) Hazelwood School
District v.
Kuhlmeier (censorship of school newspaper)
A public school can censor the style and content of speech that occurs
as part of a school-sponsored expressive activity, such as the official
school newspaper in Hazelwood (speech that will be perceived as bearing
the imprimatur (stamp of approval) of the school), if its “actions are
reasonably related to legitimate pedagogical concerns.”
Issues left unresolved by Hazelwood:
What are the factors that determine whether an activity is a
school-sponsored expressive activity? Do students have to get course
credit? Does there have to be a teacher or faculty advisor
involved? Does the school have to fund the activity?
(d) Morse v. Frederick
(Bong
Hits 4 Jesus banner)
A public school can discipline students for speech that occurs during a
school event that promotes or advocates illegal drug use when the
school has a strong anti-drug policy (without showing the speech had
any particular impact; in other words without satisfying Tinker) (case involves a school
event, but not school-sponsored expression that would be governed by Hazelwood). Justice
Alito’s concurring opinion emphasizes that Morse is limited to cases where the
student is not engaging in political expression (“it provides no
support for any restriction of speech that can plausibly be interpreted
as commenting on any political or social issue, including speech on
issues such as ‘the wisdom of the war on drugs or of legalizing
marijuana for medicinal use.’"). Thus, there is a difference between
“Bong Hits 4 Jesus” on Frederick’s banner and “legalize bong hits” on
the same banner. In a case where a school disciplines a student for a
“legalize bong hits” banner, courts will analyze the constitutionality
of the discipline using the Tinker
standard.
Issues unresolved by Morse:
What other kinds of speech that violate school policies other than
anti-drug policies could also be regulated under Morse? What about advocacy of
illegal activities such as drinking and smoking cigarettes? What about
underage sexual activity? What about speech that criticizes
homosexuality in a school district with a policy that promotes respect
for alternative lifestyles? What about speech that is a threat to
student safety in a school with a strong school safety policy? What
about speech that amounts to bullying in a district with a strong
anti-bullying policy?