Students, the First Amendment and the Supreme Court

by Jan Ewell
Permission granted to use at will for non-commercial purposes

The Bill of Rights and Schools

The First Amendment, along with the rest of the Bill of Rights, became the law of the land in 1791, but 216 years later in 2007 Supreme Court Justice Clarence Thomas wrote in Morse v. Frederick, “As originally understood, the Constitution does not afford students a right to free speech in public school.”

Thomas was an originalist, one who interprets the Constitution and the Bill of Rights according to what the Founding Fathers—the original authors—intended.  Public education was virtually non-existent at the time. Thomas says the Founding Fathers did not intend the Bill of Rights to limit the power of schools and were not specifically concerned about the rights of public school students.

Fortunately for the student press, the other eight justices instead debated which First Amendment rights students should have.  They looked at past court decisions for precedents, that is, earlier rulings by the court, that set a rule or pattern for deciding similar cases.

The precedent for almost 100 years was the 1833 Supreme Court decision in Barron v. Baltimore, which said the Bill of Rights applied only to the federal government.  According to Barron, “Congress shall make no law” meant the United States government—Congress–could not make laws “abridging freedom of speech, or of the press.”  States and cities—and school districts–could and did make laws that established religions, and abridged free speech and freedom the press, and limited the right to assemble.  “A local school teacher was not Congress within the meaning of `Congress shall make no law,’” said David L. Hudson Jr. in Let the Students Speak!   Only the federal government was forbidden to make such laws.

The Supreme Court began to apply the Bill of Rights to the laws and practices of states starting in 1925 with Gitlow v. New York.  By 1965, in Gideon v. Wainwright, the court indicated that all forms of government—not just the federal government–were restrained by the Constitution and its amendments, including the Bill of Rights.  Public schools are a form of government.

Students and the First Amendment

West Virginia v. Barnette

Not coincidentally, the Supreme Courts first linked the two phrases First Amendment Rights and students in 1943, in West Virginia State Board of Education v. Barnette.  All earlier cases involving students and the schools had been decided—often against the students—on the basis of whether the punishment was excessive or whether it was the schools’ or the parents’ right to discipline the student.

The Barnette decision, “established that public school students do have First Amendment rights and the First Amendment applies in public schools,” according to Hudson. Justice Robert H. Jackson wrote: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

The Barnette decision left many questions unanswered: In what ways are students in school different from citizens in a town or state?  Under what conditions could a school abridge student First Amendment rights?  How much disruption to the school day could be tolerated in the name of the First Amendment?  Could school officials punish students for expression that took place off campus?  What sorts of speech were protected, what sorts were not?

Tinker v. Des Moines

The Supreme Court answered some of these in the 1969 Tinker v Des Moines Independent Community School District decision.  Justice Abe Fortas reaffirmed student First Amendment rights.  He wrote “It can hardly be argued that either students or teachers shed their First Amendment rights at the school house gate.”

Content Neutral

Justice Fortas noted the school district, which had punished students for wearing black armbands to protest the Viet Nam War, allowed students to wear political campaign buttons and Iron Crosses, associated in many minds with Nazi Germany.  The Tinker children, it appeared, were punished not because political symbols were against the rules, but because the administration did not approve of the ideas associated with their choice of political symbols.

The Tinker decision held that any limitation to student First Amendment rights must be applied in a way that is content neutral, that is, in a way that applies equally to opinions the administration likes and dislikes.  If it is legal to wear a symbol supporting of Green Peace, it should also be legal to wear a symbol supporting the National Rifle Association.  If you can wear a button supporting a Republican candidate for office, you can also wear one in support of a Peace and Freedom candidate.

Substantial Disruption

The school district argued the Tinker children’s armbands disrupted the school.  Justice Fortas wrote that the administration’s “undifferentiated fear” of disruption was not a good enough reason to abridge freedom of speech.  In Fortas’s words, such censorship would be justified only when there was a “reasonable forecast of substantial disruption.”

When the attorney for the Des Moines school district, which served about 18,000 students, argued before the Supreme Court that the armbands did cause a real disruption, Justice Thurgood Marshall asked how many students had worn the armbands.  “Seven,” the attorney said.

“Seven out of eighteen thousand, and the school board was afraid that seven students wearing armbands would disrupt eighteen thousand?  Am I correct?”

Applying the Tinker standard

Retreat from the Tinker Standard—Bethel v. Fraser and Hazelwood v. Kuhlmeier

The Supreme Court next ruled on the First Amendment and public school students seventeen years after Tinker in Bethel School District v Fraser (1986).  The decision limited student freedom of speech.  The Supreme Court ruled against  Matthew Fraser, calling his speech in a school assembly “lewd and indecent, but not obscene.” Obscenity would have been illegal under Tinker.  Fraser’s speech was not obscene, the court ruled, but “lewd and indecent.”  The ruling granted public schools the ability to punish such expressions that would arguably have been legal under Tinker.  This opinion signaled a judicial retreat from Tinker.

Two years later in Hazelwood v Kuhlmeier (1988), the court further changed the balance between student First Amendment rights and the schools.  The decision granted school officials greater power to restrain student newspapers if the newspaper was published under certain conditions.  If the newspapers was produced as part of a class, or using school resources and was advised by faculty with the purpose of imparting skills to students, the court held that students did not automatically enjoy Tinker-standard First Amendment protections.

Though the ruling was about a newspaper, it has implications for all forms of school-sponsored student expression, including art shows, debates and theater production that take place in the states and school districts where the ruling applies.

Spectrum, the Hazelwood High School newspaper, the court said, was not a “forum for public expression” by students but rather a school-sponsored publication.  The Court indicated that if the student editors been given final authority over the content of the paper or if the school had explicitly designated Spectrum as a public forum for student expression, the result in the case would likely have been different,” according to the Student Press Law Center.  If it had been an open forum, the students would have been protected by the Tinker standard, which is still in force.  Hazelwood carves out exceptions to the Tinker standard.

Thus a two-tiered system of student media was born. Some media enjoy the Constitutional protections of Tinker.  Other media enjoy fewer protections under the more restrictive Hazelwood standard, which allows greater school district censorship.

Because Spectrum was school sponsored and not a public forum, school officials could censor the paper if the censorship was “reasonably related to legitimate pedagogical concerns,” according to the judge.  However, if the school officials cannot show the connection between “legitimate pedagogical concerns” and their censorship, their censorship remains unconstitutional and may be struck down by the courts.  (Parts of Hazelwood were clarified 15 and 16 years later in Draudt v. City of Wooster, (2003) Dean v. Utica Community Schools, (2004.) below.

What are legitimate pedagogical concerns?

Carving Out Exceptions to Hazelwood

Laws and Policies that Free Student Media from Hazelwood

The Hazelwood decision did not demand that school officials censor student expression.  It allowed them to do so under the limited conditions described above.  States and school districts could still allow great student freedom than Hazelwood required.

This can best be understood by an analogy.  If the Supreme Court had ruled the Constitution allowed prisoners to be held in cells as small as 10 foot by 5 foot, cities and states could still create laws requiring that prisoners’ cells be at least in 15 foot by 15 foot cells.  So districts and states could create laws that give students more freedom—and the districts less power to censor—than the Hazelwood standard allows.

Two months after Hazelwood, the California Department of Education clarified student rights in that state. Hazelwood did not make any difference to California.  The state remained under the Tinker standard, as described in Education Code 48907.

Massachusetts soon changed the language in its 1974 law, which previously had said local district may adopt Tinker-standard policies, to read districts must adopt language that protects student rights.

Arkansas, Colorado, Iowa, Kansas, and Oregon passed laws that protect student free expression.  Pennsylvania and Washington have state laws that protect student free expression.  Courts in New Jersey and Washington have specifically said their state constitutions may provide additional protections to student media.

In addition, dozens of school districts have adopted Tinker-standard language in their policies, providing significant freedom to their student media programs.  In many cases, the districts have declared their student media to be open forums for student expression, language that frees their students from Hazelwood.

Protecting Advisers

Journalism advisers may find themselves in difficult positions.  Legally, they cannot censor lawful student expression, any more than other school officials or government employees may do so. Open public forums require that students control of the content of the media.

However, school officials frequently hold the adviser responsible if students publish materials that are legal but officials find objectionable.  Advisers have been punished–transferred, suspended, fired or removed from their journalism assignment–for failing to prohibit legal student expression.

The Kansas Student Publications Act, passed in 1992, includes adviser protections. California, in 2008, added language to its student free expression section of the education code, section 48907, stating that a teacher “shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized [under the Tinker standard] or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.

Court Cases that Define the Limits of Hazelwood

Two notable cases have clarified which student publications are under the Hazelwood standard and which enjoy the greater freedom of the Tinker standard–even in states without Tinker-standard press laws.  Neither case went to the Supreme Court, so technically each applies to the limited geographic district in Michigan and in Ohio the federal district courts serve.  However, student media censorship cases are relatively rare, so future judges facing similar legal disputes are likely to look at these cases for guidance.

Draudt v Wooster and Dean v Utica

Clarifying When Censorship is Permissible Under Hazelwood

The judge also closely examined the censored article by Katy Dean using the Hazelwood standards of fairness, research and writing.  He found, even under Hazelwood, the censorship of the article was unconstitutional. School officials had claimed the work was “inaccurate” because they disagreed with the opinions of people quoted in the story.  What the district called “inaccurate” was simply an attempt to disguise “what is, in substance, a difference of opinion with its content,” the judge wrote.  Even under the Hazelwood standard, the officials had violated the students’ rights.

This case articulated two avenues for student journalists to free themselves from Hazelwood.  The first is to be a public forum in either “policy or practice.”  The second is to produce high quality journalism.

[learn_more caption=”Quotes from the Dean decision”] “In a speech at Dartmouth College on June 14, 1953, Dwight D. Eisenhower said, “Don’t join the book burners. Don’t think you are going to conceal thoughts by concealing evidence that they ever existed.” Katherine Dean’s article for the March 15, 2002 issue of the Arrow concerning the Frances’ lawsuit against Utica Community Schools should not have been suppressed. Thus, the defendants’ suppression of the article was unconstitutional.” [/learn_more]

The Four Cases in which Districts were Sued for the Content of Student Media.

All the suits were unsuccessful. No school district has ever been successfully sued for something the student media has published, according to Frank LoMonte, executive director of the Student Press Law Center.

In each case the lawyers for the school district argued that the students, not the schools, controlled the content of the media.  In three of the four cases, the courts agreed.  (In the fourth case, the court did not rule on the forum status.)  In each case, the school district was cleared of wrongdoing by the courts and did not have to pay any damages.

These court cases show the protection school districts enjoy when students control the content of the student media and are trained to make ethical and journalistically sound decisions.

None of the cases went to the Supreme Court.  One case was decided by a federal appeals court, one in a federal district court and two others in state courts.

Yeo v Lexington (Yeo, 1997), Douglass v Londonerry (Douglass, 2005), The JagWire (JagWire, 2012) and Sisley v Seattle School District (Sisley, 2011)