|
Phyllis
Errico, Editor
The First Amendment to the United States Constitution and
the system of public schools in this country has experienced
a constant give and take over the years. Although much of
the history involves the establishment clause and the free
exercise of religion provisions, there has been a growing
tension in other areas as well. The First Amendment states
in part that “Congress shall make no law…abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble…” Specifically, this
prohibits Congress from infringing upon individuals’ ability
to present their ideas through verbal expression or through
their actions. In addition it prohibits infringement on the
ability to associate with individuals of a person’s choice.
Although the First Amendment was ratified in 1971 the concept
of free speech is reflected clearly in documents such as The
English Bill of Rights and the United States Articles of Confederation.
The courts have recognized freedom of speech to be a fundamental
right of highest significance under the U.S. Constitution.
Although the First Amendment speaks specifically to the acts
of Congress, these same protections are afforded citizens
against state action through the Fourteenth Amendment.
The majority of significant court decisions involving free
speech have occurred in the last 40 years; however, this area
of the law continues to evolve especially in the context of
the public school setting. As with any right, fundamental
or otherwise, the individual’s right is not an absolute one
but one whose parameters depend on the context and setting
of the particular situation. The First Amendment rights of
both students and teachers in the public education arena must
be balanced with the legitimate mission and purpose of the
educational institution. The courts have emphasized the importance
of the free exchange of ideas by the citizens of this country
and have established a general standard that government officials
may only infringe upon this fundamental right by establishing
limitations that are necessary to achieve a compelling state
interest and are narrowly tailored to achieve that compelling
interest. Government officials may also place reasonable time,
place and manner restrictions on speech.
In 1969 the Supreme Court of the United States addressed
the issue of whether students have a right to free speech
and expression in the public schools when it decided the case
of Tinker v. Des Moines Independent School District,
393 U.S. 503 (1969). This often-cited case is the cornerstone
of all speech and expression analyses in the public school
arena. The Tinker decision coined the phrase “students
do not leave their constitutional rights at the schoolhouse
gates.” The Tinker decision has been applied to
almost every fact situation regarding the balance between
the rights of school students and staff members and the rights
of the educational institution. This issue has arisen in many
areas of public education including discipline, due process,
academic freedom, curriculum, dress codes, student and staff
speech, and publications.
The debate over the issue of free speech and expression within
the public school context is one of the most heated in public
education today. Every type of media is overflowing with stories
of incidents involving blue hair/pink hair, long skirts/short
skirts, controversial articles in school newspapers, the content
of student speeches, the wearing of controversial attire,
the display of profanity, religious messages, the Confederate
flag, trench coats, dark glasses, earrings, bandannas, and
boys wearing girls clothing.
With each new day in the public school setting a new issue
arises that squarely pits the individual’s First Amendment
rights against the institution’s rights, responsibilities
and mission. The arguments in favor of the protection of the
rights of the individual are raised by parents, students,
faculty, and organizations such as the American Civil Liberties
Union and the Rutherford Institute, whose objectives include
the preservation of individual constitutional rights. These
organizations closely monitor the public school climate and
intervene in a very visible way when they feel that a person’s
individual rights are being compromised.
The proponents of the preservation of the rights of the individual
to free speech and expression argue that a school is one of
the most appropriate places to teach, promote, and reinforce
the concept of individual rights. As the student is developing
academically and socially they should be encouraged to speak
and act on the issues that affect their lives, and to foster
their individuality. As important as the above personal growth
aspect, is the concept that school is a place to teach students
about the principles of individual freedoms that the United
States was built upon. It is often argued that there is no
greater civics lesson than the experience of protecting one’s
own individual constitutional rights. In addition, it is argued
that limitation of student and faculty rights of speech and
expression amounts to censorship, which chills the free flow
of ideas and exchange of information that is essential to
a challenging and productive learning environment.
In contrast to the arguments stated above, those who favor
clear limitations on individual rights of speech and expression
in the public school context have advanced two very strong
arguments, the first being that school is a place to develop
certain prescribed academic skills and the second is that
the responsibility to provide a safe learning environment
warrants specific rules that limit disruption in the school
environment.
With the mission of public schools returning to a very specific
and focused skills based curriculum and often state-mandated
measurement of these skills, the school day has become very
prescribed. Every possible time slot both during academic
time and student activity time is geared toward teaching,
reviewing, and reinforcing these prescribed standards. Thus,
the distraction created when staff or students are sidetracked
is not insignificant.
This focus and need for a nondisruptive school setting leads
directly to the second and equally compelling argument which
is that school officials are charged with the essential task
of maintaining a safe and productive learning environment.
This is perhaps more important and more difficult than ever
before in public education. It was almost unheard of for children
to seriously assault each other or staff members in the 1960s
when the Tinker case was decided. Today it is sadly a common
occurrence in every type of community and school environment.
Students have exhibited a trend of acting out their feelings
in negative and destructive ways such as fighting over words
and symbols that they view as offensive. Thus, the pressure
on school administrators to maintain an appropriate atmosphere
of order and discipline has become the top priority in public
education today. This has created a perceived need for zero
tolerance and minimum disruption which necessarily affects
individual rights.
Although many attack this zero tolerance practice as being
unnecessary, there are many documented instances of disruption
caused by individual speech and expression in the public schools.
In addition, those who favor the balance of rights toward
the institution argue that there are other more appropriate
avenues and forums where both students and faculty members
can express themselves outside of the public school arena.
There is no lack of research, discussion or legal precedent
in the area of speech and expression and its applicability
in the public school setting. The Supreme Court of the United
States has been actively addressing this issue for a number
of years and it is the subject of literally hundreds of cases
in both state and federal courts today. Following is a list
of some of the most important Supreme Court decisions dealing
with the First Amendment speech and expression issue in the
public schools.
West Virginia State Board of Education v. Barnette, 319
U.S. 625 (1943)
The Supreme Court ruled that a statute requiring students
to salute the flag was unconstitutional. The students argued
that the salute was against their religious beliefs. The Court
ruled that this was a violation of the students’ individual
free speech rights.
Keyishian v. Board of Regents of New York, 385 U.S. 589
(1967)
The Supreme Court struck down New York statutes that barred
any person who participates in treasonable or seditious words
or acts from public school employment as a violation of individual
First Amendment rights.
Pickering v. Board of Education of Township, H.S. Dist.
205, 391 U.S. 563 (1968)
The Supreme Court ruled that a teacher may not be dismissed
for speaking on issues of public concern.
Tinker v. Des Moines Independent Community School District,
393 U.S. 503 (1969)
The Supreme Court ruled that students do not shed their constitutional
rights at the schoolhouse gate. Schools may not restrict student’s
private speech absent material and substantial interference
with school operation or infringement of rights of others.
Board of Education, Island Tree v. Pico, 457 U.S. 853
(1982)
The Supreme Court ruled that students have a First Amendment
right to receive information and ideas. A school board may
not remove books from a school library because they seek to
prescribe what shall be orthodox in politics, nationalism,
religion or other matters of opinion. The Court found a difference
between classrooms and libraries and would afford school officials
more control of classroom materials than of library materials.
Perry Education Association v. Perry Local Educators,
460 U.S. 37 (1983)
The Supreme Court ruled that a public school is a limited
public forum for educationally related uses and a nonpublic
forum to all unspecified uses. Regulation on access need only
be reasonable.
Bethel School District No. 403 v. Fraser, 478 U.S. 675
(1986)
The Supreme Court ruled that the principal did not violate
the free speech rights of a student by punishing the student
for using sexual innuendo in a speech during a school-sponsored
assembly. The Court held that the First Amendment does not
prevent school officials from determining that student speech
would undermine the school’s educational mission.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
The Supreme Court ruled that schools do not violate free speech
rights of students by exercising editorial control over the
content of a school-sponsored newspaper if the actions are
reasonably related to legitimate pedagogical concerns.
Of the cases cited above, the three most studied, cited,
and applied to the actions of students and staff in the public
school environment are the cases of Tinker vs. Des Moines,
Bethel School District v. Fraser, and Hazelwood
v. Kuhlmeier.
The Tinker case involved the suspension of several
students who wore black armbands to school to protest the
Vietnam War. Although no disturbance occurred the students
were sent home when they refused to remove the armbands. The
Tinker Court held that neither students nor teachers
shed their constitutional rights in the school setting. The
Court further held that undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom
of expression. The Court went on to explain that a student
may express opinions on controversial matters so long as to
do so does not materially or substantially interfere with
the requirements of appropriate discipline in the operation
of the school or collide with the rights of others. The fact
that the students’ wearing of armbands to signify their protest
of the Vietnam War did not result in any disruption of the
school environment is of primary importance in applying this
decision to other cases.
In Fraser, the second of these three important cases,
the Court dealt with the individual free speech rights of
a student who made sexual innuendoes in a speech during a
school-sponsored assembly. In this case, the Court placed
great emphasis on the uniqueness of the school setting in
holding that the speech protected for adults is not necessarily
the same for children. The Court reasoned that the school
administration has to consider the sensibilities of the captive
student audience and the objective of the school to put forth
the appropriate civil and social values in classes or school
assemblies.
The First Amendment balance in favor of the school as an
institution was further solidified in 1988 in the Hazelwood
case. This case involved a principal’s editing articles in
a school newspaper because they dealt with issues of abortion
and divorce. The Court determined in this case that a school
administration has a wide degree of discretion, control and
responsibility in the message involved in school-sponsored
expression. These cases reveal a shift toward preserving the
authority of the institution and allowing limits on individual
expression in the school arena.
The above-cited case law has been used to decide cases involving
staff members raising issues of academic freedom in the classroom
and in sponsorship of school-sponsored activities. The Fourth
Circuit of Appeals adopted the Hazelwood analysis in
striking a balance between the teacher’s speech rights in
her teaching capacity and the school’s role in setting the
curriculum in the case of Boring v. Buncombe County Board
of Education, 136F. 3d 364. In this case the Court upheld
the school administration’s objection to a teacher’s selection
and production of a play containing controversial subject
material. The Court went into great detail in defining terms
such as curriculum and pedagogical in determining that the
content of the curriculum should be entrusted to the local
school authorities rather than to the teachers.
The issue of the balance between the institution and the
individual right to free speech and expression arises on a
regular basis in a variety of fact patterns in the public
schools. Below are some examples of the most common area of
focus involving this issue in the school environment.
Clearly the most visible of area of education is the teaching
that goes on in the classroom and extracurricular extensions
of the curriculum. On the higher education level the arguments
are strong for the academic freedom of the educator, however,
these same arguments are less persuasive at the primary and
secondary levels of education. State and local standards largely
prescribe the public school curriculum in most jurisdictions
and thus there is little discretion by the teacher over what
will be taught.
There are a number of cases that involve teachers alleging
that their protected First Amendment speech, conduct or activity
has resulted in discipline from their employer. In order to
analyze and interpret these cases the courts have looked to
whether the employee was acting as a citizen, or as an employee/instructor.
The courts also look to whether the employer was speaking
on a matter of public concern or merely on matters of internal
policies and practices as they apply to them. To be protected
by the First Amendment the employee speech must be truly a
matter of public concern and must be expressed in a way that
does not detract from the mission of the school system. The
public school employer has a right to expect and a duty to
manage the efficient performance of its employees, and preserve
harmony in the workplace. It has been consistently held to
be inappropriate for a teacher to use the captive classroom
audience to further matters unrelated to the curriculum because
the expression should be consistent with the educational objectives
of the school system.
This category includes both student and staff expression
in areas that involve the curriculum and school-sponsored
activities. This issue arises in a variety of situations including
publications such as school newspapers, graduation programs,
notices and posters regarding school events, yearbooks and
athletic programs, as well as speech that occurs as part of
a school-sponsored event such as a play, assembly or graduation
exercise. These cases are often analyzed using a public forum
analyses. The type of forum dictates the individual’s right.
The traditional public forum such as a street, sidewalk or
other public place can only be limited by a compelling state
interest. In a nonpublic forum or limited public forum such
as the school setting, courts have consistently held that
the institution may reserve the forum for its intended purpose
consistent with appropriate educational characteristics of
the school environment. The more administration involvement
and endorsement the greater the school system’s ability to
review and control the content of the speech, expression or
conduct.
Therefore, a school may exert a large degree of control over
school-sponsored events because the school is not required
to tolerate or endorse speech that is inconsistent with its
basic educational mission or inappropriate for its audience.
This is true even though such speech would be allowed outside
of the school context. The more removed the school connection
from the activity such as an underground or non-school sponsored
activity or publication, the less ability the school has to
effect the content of the activity.
If a school publication is a closed or nonpublic forum its
content may be limited to that which supports the educational
mission. However, many school publications including the yearbook,
drama production programs and sporting events programs contain
commercial advertisements. The First Amendment provides less
protection to commercial speech than other forms of speech
and therefore has upheld school decisions to limit advertisements
regarding inappropriate products, issues and subject matter
such as alcohol, tobacco products and birth control.
It is important to note however that once the forum is opened
to some commercial speech regulation by the educational institution
is not absolute. If challenged, a court would examine whether
the institution’s interest in prohibiting a particular advertisement
in a publication is substantial and if the means adopted are
narrowly tailored to meet these interests. In order to avoid
challenge in such an area the institution should establish
clear guidelines prior to limiting such advertisement.
This is perhaps the most highly litigated area involving
the balance between the individuals’ speech and expression
rights and the institution’s ability to limit or control those
rights. This will continue to be a controversial issue in
the future as students desire to exert their individuality
and express their opinion impacts their fellow students and
the general atmosphere of the school campus. This is also
the area that warrants the most sensitive balance between
the individual’s rights and that of the institution. Cases
in the late 60s and through the 70s used the Tinker analysis
of individual symbolic speech or political expression to uphold
a student’s right to dress and express himself so long as
it did not result in an actual disruption in the school environment.
However, the Fraser case reasoning has supported a trend of
upholding school rules and regulations regarding personal
appearance and attire when they are in conflict with a school’s
legitimate educational objectives thus, looking at the content
rather than the result of the expression. Generally courts
have upheld regulations prohibiting lewd, obscene, vulgar
and inappropriate attire as well as those that prohibit profanity,
alcohol, drugs, gang dress and paraphernalia and other illegal
activity.
The more difficult cases involve facts regarding messages
whose meaning to some students is offensive, discriminatory,
racially charged, or inappropriate but are not on their face
obscene or vulgar nor do they promote products that are inappropriate
for minors. One of the most common examples is that of the
display of the Confederate flag. The Confederate flag is a
symbol that many consider a source of pride and heritage while
others view as a symbol of violence, oppression and racial
discrimination. Since the integration of public schools in
the country this symbol represents one of the most controversial
and charged on public school campuses. The Confederate flag
has also been the subject of controversy in its display at
state capitals, on license plates, and in the private workplace.
No matter what it signifies to each individual, it is clearly
a controversial symbol in this country.
There have been a number of lawsuits filed by students challenging
public school’s prohibition of the display of the Confederate
flag in the school arena. These cases have arisen in several
states, including Florida, Kansas, South Carolina, North Carolina
and Virginia, and courts have consistently upheld such a prohibition
when it is based on information involving disruption on the
school campus. These cases stress the uniqueness of the school
environment, the focus on school safety and the ability of
students to express their beliefs outside of the school environment.
These cases as well as others involving attire and symbols
of a controversial nature should be analyzed carefully as
there are recent cases analyzed under Tinker which have struck
down prohibition of these items when no actual disruption
could be shown. The trend of the cases on this issue reveals
first that vulgar or offensive speech may be prohibited without
a showing of disruption, second that school-sponsored speech
may be restricted when limitations are reasonably related
to legitimate education concerns, and finally, that non-offensive,
non-school sponsored expression may only be prohibited if
it causes a disruption in the school environment.
Clearly First Amendment free speech issues in the public
schools are alive and well and the subject of much attention
years after the Tinker decisions. This debate is now
heating up on the area of censorship or filtering of the Internet
in the public schools. The issue of what access students and
staff may have to the Internet in the school environment and
how to monitor that access raises new First Amendment concerns.
These cases are being analyzed under the standard set by the
Supreme Court in the Pico case in which the Supreme
Court distinguished the school library from the school classroom
and allow the school administration to exert more control
over the curriculum than over library material.
Cases involving students’ use of email, web sites, and instant
messaging to express themselves and their thoughts about classmates,
teachers, administrators, and the school itself have prompted
safety, security and disruption concerns. There is a growing
trend by students to use these forms of media to express thoughts
about members of the school community and even to express
anger or convey threats. In the case of Beussink v. Woodland
R-IV School District, 30F. Supp. 2nd 1177 (10th Cir. 1998),
a Court held that a student’s web page created on his home
computer was protected by the First Amendment even though
it contained derogatory information about school staff. The
Court considered the fact that the speech was not school sponsored
and that the administration did not show a disruption to the
school environment. The decision in the Beussink case may
have been different if the school had shown that the speech
had a disruptive effect on the school environment, even if
the message was constructed off of school property on a home
computer. Internet Acceptable Use Policies for students and
staff alike are required by many organizations and are helpful
in defining acceptable school use of both hardware and software.
There has been a flurry of litigation involving employee’s
use of the Internet and their ability to access sexually explicit
material in the workplace and at the public libraries in Virginia.
In the case of Urofsky v. Allen 167 F3d 191 (4th Cir.
1999) the Fourth Circuit Court of Appeals ruled that a statute
which limited access to sexually explicit material in the
workplace was not a violation of the First Amendment because
the speech regulated concerned a private concern as an employee
and not a public concern as a citizen.
In contrast, in other Virginia litigation the federal court
ruled that the public library was a public forum, thus the
wholesale use of filters to exclude sexually explicit material
was impermissible because it was not the least restrictive
means to achieve that goal. Language in these decisions indicates
that there is a difference between public libraries and school
libraries suggesting that use of filters in a public school
would have a lower threshold in order to be permissible. Mainstream
Loudoun v. Board of Trustees of the Loudoun County Library
2 F. Supp. 2d 783 (E.D. Va 1988), Loudoun 24 F Supp 2nd 552
(E.D. Va 1998). It is interesting to note that certain federal
legislation requires filtering in the public school environment
in order to access federal funding. This suggests that litigation
on this particular issue will likely continue over the next
few years.
Just as the balance between the free exercise and the establishment
clauses of the First Amendment must be struck delicately in
the public school setting, the same is true of the balance
of the rights involving freedom of speech and expression.
One thing is clear from the evolving case law, combined with
the changing climate in the school setting and that is that
the school setting is in fact different from any other public
setting. This is the case because the public school has a
clear mission to educate young people and a clear responsibility
to do so in an environment that promotes safety and productivity.
It is clear that both students and faculty do in fact have
First Amendment rights in the school setting and each situation
must be considered carefully so that the intrusion on the
rights of the individual is minimized to the extent possible
to maintain this safe and productive learning environment.
This task is decidedly more difficult today than in the times
of the Tinker, Fraser or Hazelwood decisions
because of the violence that has occurred on public school
campuses and the increasing demands on the schools to increase
safety standards. If a school is going to infringe upon individual
speech or expression it must be able to show that the speech
or expression will conflict with the pedagogical/educational
mission or disrupt the school environment if it is permitted.
This is especially true in the situation involving speech
or expression that is not objectively lewd, obscene or inappropriate
(drugs, alcohol) but for some reason is objectionable in the
school environment. Examples of such speech or expression
include bizarre attire or appearance, pierced body parts,
and symbols such as the Confederate flag, Malcolm X, or items
associated with gang or antisocial behavior such as bandannas,
dark glasses or trench coats. Thus, it is crucial that school
officials maintain a record of disruption involving such symbols
or expression, and make it very clear to students what is
acceptable and what is not acceptable in the particular school
setting.
Communication between all segments of the school community
including students, parents, staff and administrators is necessary
in this area in order to foster an environment where differences
are treated with respect and professionalism while disruption
is kept to a minimum. Discussion with the members of the school
community regarding attire, speech and other expression rather
than instant reaction by school administration can produce
and foster such an environment of understanding and prevent
unnecessary litigation. Most students and parents will act
with respect towards others in the school community if they
understand the issues clearly.
It is of utmost importance that a school system consider
whether a student’s expression or speech will actually cause
a disruption or whether the disruption is caused primarily
by the school administrations’ dislike or distaste for a particular
form of speech or expression. The former will likely be supported
by the courts while the later will probably not and may also
bring unfavorable and unnecessary attention to the school.
Click here for summary of recent Virginia Legislative history
of “The
First Amendment: Speech, Expression and the Public Schools.”
Rapp, James A., Education Law, Volume 2, Chapter 6.13, Grounds
for Discipline or Dismissal of Faculty and Staff, First Amendment
Areas, Matthew Bender and Co.
Rapp, James A., Education Law, Volume 3, Chapter 9.02, Rules
and Regulations Governing Student Conduct, First Amendment
Areas, Matthew Bender and Co.
Rapp, James A., Education Law, Volume 4, Chapters 11.01,
11.02, Academic Freedom, Matthew Bender and Co.
Dayton, John, Free Speech and The Communications Decency
Act, 117 Ed. Law Rep. 1 (May 29, 1997)
McCarthy, Martha M., Post-Hazelwood Developments, A Threat
to Free Inquiry in Public Schools, 81 Ed. Law Rep. 685 (June
3, 1993)
McKinney, Joseph R., A New Look at Student Uniform Policies,
140 Ed. Law Rep. 791 (March 2, 2000)
Hils, Lynda, Zero Tolerance for Free Speech, 30 J.L. &
Educ. 365 (2001)
Dyer, Edgar, The Banning of Confederate Symbols in the Public
Schools: Preventing Disruption or Avoiding Discomfort, 125
Ed. Law Rep. 1019 (July 23, 1998)
Vacca, Richard S., Hudgins, H.C., Jr., Student Speech and
The First Amendment: The Courts Operationalize the Notion
of Assaultive Speech, 89 Ed. Law Rep. 1, (April 21, 1994)
Mawdsley, Ralph D., Mawdsley, Alice L., Free Expression in
Public Schools: A Trend Toward Greater Control Over Students,
48 Ed. Law Rep. 305 (September 29, 1980)
Valente, William D., Student Freedom of Speech in Public
Schools - Another Turn, 46 Ed Law Rep. 889 (July 21, 1988)
Click cepi@vcu.edu to provide
comments or additional information. Please indicate in an
e-mail the copyright source and contact information for new
inclusions. Back to Top
Copyright © CEPI 2000
CEPI grants permission to reproduce this paper for noncommercial purposes if
CEPI is credited.
|
