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?