Does the First Amendment apply to public schools?
Yes. The First Amendment applies to all levels of government, including public schools. Although the courts have permitted school officials to limit the rights of students under some circumstances, the courts have also recognized that students—like all citizens—are guaranteed the rights protected by the First Amendment.
This was not always true. For much of our history, the First Amendment did not apply to the states—and thus not to public schools. When adopted in 1791, the First Amendment applied only to Congress and the federal government (“Congress shall make no law . . .”). This meant that when public schools were founded in the mid-19th century, students could not make First Amendment claims against the actions of school officials.
The restrictions on student speech lasted into the 20th century. In 1908, for example, the Wisconsin Supreme Court ruled that school officials could suspend two students for writing a poem ridiculing their teachers that was published in a local newspaper. The Wisconsin court reasoned, “Such power is essential to the preservation of order, decency, decorum, and good government in the public schools.” And in 1915, the California Court of Appeals ruled that school officials could suspend a student for criticizing and “slamming” school officials in a student assembly speech.
Despite the passage of the 14th Amendment in 1868, which provides that “no state shall . . . deprive any person of life, liberty or property without due process of law . . . ”, it was not until 1925, by way of the U.S. Supreme Court case of Gitlow v. New York, that the Court held that the freedom of speech guaranteed by the First Amendment is one of the “liberties” incorporated by the Due Process Clause of the 14th Amendment.
In subsequent cases, the Court applied all of the freedoms of the First Amendment to the states—and thus to public schools—by way of the 14th Amendment. But it was not until 1943, in the flag-salute case of West Virginia v. Barnette, that the U.S. Supreme Court explicitly extended First Amendment protection to students attending public schools.
The Barnette case began when several students who were Jehovah’s Witnesses refused to salute the flag for religious reasons (this was before the controversial words “under God” were even added to the Pledge). School officials punished the students and their parents.
The students sued, claiming a violation of their First Amendment rights. At the time, Supreme Court precedent painted a bleak picture for their chances. Just a few years earlier, the Court ruled in favor of a similar compulsory flag-salute law, in Minersville School District v. Gobitis. As the Court stated in that ruling, “national unity is the basis of national security.”
But just three years later, the high court reversed itself in Barnette, holding that the free speech and free exercise of religion provisions of the First Amendment guarantee the right of students to be excused from the flag salute on grounds of conscience.
Writing for the majority, Justice Robert Jackson said that the Supreme Court must ensure “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 Court then warned of the dangers of coercion by government in oft-cited, eloquent language:
If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
In the years since Barnette, lower courts and, occasionally, the U.S. Supreme Court have issued additional rulings to clarify the extent to which the First Amendment’s five freedoms must be honored in public schools. In the questions and answers that follow, you’ll learn more about what is and isn’t allowed under current law, as well as how our understanding of the role individual freedom plays in a school setting has developed over time.
Free Expression Rights of Students
What are the free expression rights of students in public schools under the First Amendment?
The freedoms of speech, press, assembly, and petition are often collectively referred to as the freedom of expression, and the U.S. Supreme Court has developed a separate body of case law regarding the free expression rights of students. In defining the free expression rights of students in a public school, the Court has developed the following tests:
I. The Tinker Standard (Tinker v. Des Moines Independent School District, 1969)
When 15-year-old John Tinker, his sister Mary Beth, 13, and Christopher Eckhardt, 16, wore black armbands to their Iowa public schools in December 1965 to protest the Vietnam conflict, they never imagined their actions would lead to a landmark First Amendment decision. Yet their protests culminated in the leading First Amendment free speech case for public school students.
The case arose when a group of parents and students in Des Moines, Iowa, met at the Eckhardt home and decided to protest the U.S. government’s involvement in Vietnam. The group agreed that one way to protest would be to have the students wear black armbands to public schools.
School officials learned of this planned protest and quickly enacted a no-armband policy. The school then enforced its no-armband rule while allowing the wearing of other symbols, including the Iron Cross – a German military symbol with Nazi connotations.
The students sued in federal court and lost before a federal trial court. The trial court sided with the school officials’ argument that they had enacted the policy out of a reasonable fear that the wearing of the armbands would create disturbances at school.
The case eventually made its way to the U.S. Supreme Court, which overturned the previous decision and ruled in favor of the students. In oft-cited language, the Court wrote, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”
Writing for the majority, Justice Abe Fortas noted that school officials could point to no evidence that the wearing of armbands would disrupt the school environment. As a result, the Court ruled, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
In this decision, the Court established what has become known as the Tinker standard, considered to be the high watermark of students’ First Amendment rights. In its ruling, the Court wrote: “the record does not demonstrate any facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”
Simply put, this ruling means school officials may not silence student expression just because they dislike it. They must reasonably forecast, based on evidence and not on an “undifferentiated fear or apprehension of disturbance,” that the student expression would lead to either (a) a substantial disruption of the school environment, or (b) an invasion of the rights of others.
The Tinker standard governed student expression for years until the Supreme Court decided two other cases in the 1980s. The first of those rulings came in 1986.
II. The Fraser Standard (Bethel School District. No. 403 v. Fraser, 1986)
The first major retreat from Tinker occurred in 1986, in the case of Bethel School District No. 403 v. Fraser. The trouble began when high school student Matthew Fraser decided to give a speech in which he nominated classmate Jeff Kuhlman for a student government office. Fraser’s speech was laced with sexual metaphors. Among other things, he described his friend Jeff as “a man who is firm – he’s firm in his pants, he’s firm in his shirt . . . [and] most . . . of all, his belief in you, the students of Bethel, is firm.” Fraser then completed his clever wordplay by letting the student body know that Jeff Kuhlman was “a man who will go to the very end – even the climax, for each and every one of you.”
Asked later about the speech, Fraser confessed he had written it about an hour before the assembly. “One teacher told me it would ‘raise eyebrows,'” he said. “But no teacher told me that it violated school policy.” A day later, however, he was presented with the policy. Clearly written with the Tinker standard in mind, it read: “Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” School officials promptly suspended Fraser.
Fraser sued in federal court, claiming his suspension was a violation of his First Amendment rights. Two lower courts agreed, ruling that his speech was in fact protected by the Tinker standard. But on July 7, 1986, the Supreme Court held differently.
“Surely,” wrote Chief Justice Warren Burger, on behalf of the 7-2 majority, “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.”
More significantly, Burger wrote that “the marked distinction between the political ‘message’ of the arm-bands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. . . . [T]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms,” the Chief Justice continued, “must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”
Burger then crafted a second standard for student expression, one in which he gave clear reference to the Tinker case. Because school officials have an “interest in teaching students the boundaries of socially appropriate behavior,” he wrote, “they can censor student speech that is vulgar or indecent, even if it does not cause a ‘material or substantial disruption.'”
Despite the ruling, David Hudson, an attorney with the First Amendment Center in Nashville, says many courts are still divided in how they apply the Fraser standard. “Some courts apply Fraser to all vulgar or lewd student speech even if the speech is student-initiated,” says Hudson. “Other courts only apply Fraser to vulgar student speech that is in some way school-sponsored.” The distinction is significant, Hudson argues, because it gives school officials the ability to characterize some student speech as offensive or vulgar even if the expression contains a political message.
Lower courts also disagree over what types of speech are subject to censorship under the Fraser standard. For example, the 11th U.S. Circuit Court of Appeals has ruled that school districts can ban the Confederate flag because it is plainly offensive to students. And another court confronted this issue when a junior high school student wore a T-shirt to class bearing the words, “Drugs Suck!” The student in the case argued that the shirt conveyed an important “anti-drug message” and did not disrupt the school environment. The school countered that the shirt was inappropriate because the word ‘suck’ has a vulgar connotation. The federal district court in Virginia sided with the school, and based its decision on a broad application of the Fraser standard:
Teachers and administrators must have the authority to do what they reasonably believe is in the best interest of their educational responsibilities, as we cannot abandon our schools to the whims or proclivities of children. The Court finds that . . . [s]chool [o]fficials had an interest in protecting their young students from exposure to vulgar and offensive language.
This case and a host of others like it illustrate how the Fraser standard has come to limit the reach of Tinker. Yet as much as the Fraser decision altered the landscape of student rights, the Court’s 1988 decision in Hazelwood v. Kuhlmeier added a third standard of expression for school officials to consider.
III. The Hazelwood Standard (Hazelwood School District v. Kuhlmeier, 1988)
In Hazelwood, the Court ruled that students’ First Amendment rights were not violated when a high school principal censored two student articles on controversial topics-pregnancy and divorce-in the school newspaper, The Spectrum.
Principal Robert Eugene Reynolds, after reviewing the galleys, barred the stories. He believed the piece about teen pregnancy was inappropriate for some of the younger students at the school, based on its discussion of sexual activity and birth control. In addition, he decided to censor the divorce article because the writers did not afford the parent of one of the students mentioned in the article a chance to respond to certain comments.
Several of the paper’s staff members – including Cathy Kuhlmeier – challenged the principal’s action in federal court, claiming a violation of their First Amendment rights. The district court sided with the school, finding that the principal’s concerns were reasonable and legitimate. A federal appeals court disagreed, ruling that under the Tinker standard there was “no evidence in the record that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school.”
The case reached the Supreme Court, where the Justices focused heavily on the First Amendment concept of a public forum -places such as a public park or street where the government has less leeway to regulate speech than in others. The Justices asked themselves whether the school officials had by policy or practice opened up a public “forum for student expression” by allowing students to make content decisions.
On January 13, 1988, the Court ruled 5-3 that it had not. “The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that ‘time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,'” wrote Justice Byron White. “Hence, school facilities may be deemed to be public forums only if school authorities have ‘by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public,’ or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes,” White concluded, “then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.”
By this ruling, the Court created the Hazelwood standard, which states that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
Justice William Brennan disagreed with the majority’s logic. “The young men and women of Hazelwood East expected a civics lesson,” he wrote in his dissent, “but not the one the Court teaches them today.” What troubled Brennan was that the school was picking and choosing among viewpoints, censoring those it found too controversial for a high school audience. Brennan felt the school had a responsibility to go farther. “The mere fact of school sponsorship does not,” he argued, “license such thought control in the high school, whether through school suppression of disfavored viewpoints or through official assessment of topic sensitivity. The former would constitute unabashed and unconstitutional viewpoint discrimination, as well as an impermissible infringement of the students’ “‘right to receive information and ideas.'”
“The State’s prerogative,” he added, “to dissolve the student newspaper entirely (or to limit its subject matter) no more entitles it to dictate which viewpoints students may express on its pages, than the State’s prerogative to close down the schoolhouse entitles it to prohibit the non-disruptive expression of antiwar sentiment within its gates.”
The promise of Tinker had been breached, or so thought Justice Brennan: “The case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the “mere” protection of students from sensitive topics.”
IV. The “Bong Hits 4 Jesus” Standard (Morse v. Frederick, 2007)
Nearly twenty years passed between the Court’s ruling in Hazelwood and its decision to accept another student-speech case for review. In the years between 1988 and 2007, most lower courts divided student speech into three categories:
a. Vulgar, lewd, obscene, and plainly offensive speech (Fraser standard)
b. School-sponsored speech (Hazelwood standard)
c. All other student speech (Tinker standard)
Then, on June 25, 2007, the Court added a fourth standard for courts to consider. School officials have the authority, announced Chief Justice John Roberts, to restrict student speech that may promote illegal drug use – even if the speech takes place off-campus on a public street across from the school.
The case began on January 24, 2002, as the Olympic torch was traveling through Juneau, Alaska. When Juneau-Douglas High School principal Deborah Morse learned that the torch would pass directly by the school, she decided to excuse staff and students to participate in the celebration.
Joseph Frederick, an 18-year-old senior, never made it to school that day. But he and some fellow students had an idea. Setting themselves up directly across from the school on public property, they waited for the torch bearers – and the accompanying TV cameras – to pass in front of them. Then, at that moment, they unfurled a 14-foot banner with the cryptic message, “Bong Hits 4 Jesus.”
When Morse saw the banner, she left school property and crossed the street to confront him. The 18-year-old countered the principal’s order to take down the banner by asking, “What about the Bill of Rights and freedom of speech?”
Morse later explained she thought the banner encouraged illegal drug use, a clear violation of an established school policy. Frederick countered in a court affidavit that his ‘message’ carried no deeper meaning whatsoever. “We thought we had a free-speech right to display a humorous saying,” he said. “The content of the banner was less important to us than the fact that we were exercising our free-speech rights to do a funny parody.”
Frederick later sued in District Court, alleging that the school board and Morse had violated his First Amendment rights. He also sought declaratory and injunctive relief, compensatory and punitive damages, and attorney’s fees.
The District Court decided in favor of Morse and the board, ruling they were entitled to qualified immunity – a legal defense that requires courts to enter judgment in favor of a government employee unless the employee’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”
But the Ninth Circuit Court of Appeals reversed. Although Frederick’s speech essentially took place at a “school-authorized activit[y],” school officials had not demonstrated that his speech gave rise to the “risk of substantial disruption” that Tinker requires.
Perhaps of greater interest to the Court was the Ninth Circuit’s decision to refuse Morse the defense of qualified immunity. This meant she could be held personally liable by her student for monetary damages. As Chief Justice Roberts later explained on behalf of the six-justice majority, the Supreme Court “granted certiorari on two questions: whether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages.”
“The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use,” wrote Roberts. “We hold that she may.” Although the message itself was little more than “gibberish,” Morse “had to decide to act – or not act – on the spot. . . . Failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use.” So Frederick was not entitled to seek any damages from his former principal after all.
Roberts then distinguished Frederick’s case from the Court’s past decisions in Bethel v. Fraser and Hazelwood v. Kuhlmeier. “Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur,” the Chief Justice explained. And in response to an argument by Kenneth Starr, representing the school official pro bono, that Frederick’s speech was, per Fraser, “plainly offensive,” Roberts wrote: “We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all,” he opined, “much political and religious speech might be perceived as offensive to some.”
Because of the narrowness of the Court’s ruling – further strengthened by a concurring opinion from Justice Samuel Alito, who underscored that the decision “goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use” – the long-term impact of Morse may be limited. But Justice John Paul Stevens, joined by Justices Souter and Ginsburg, still felt passionate enough to write a dissent. “In my judgment,” he writes, “the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students.”
Adding another layer to the ruling was Justice Stephen Breyer, concurring in part and dissenting in part, who felt that both sides got it half wrong. “This Court need not and should not decide this difficult First Amendment issue in the merits,” he writes. “Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more.”
As Breyer explained, “although the dissent avoids some of the majority’s pitfalls, I fear that, if adopted as law, it would risk significant interference with reasonable school efforts to maintain discipline.” Breyer also found problematic the majority’s decision to weigh in on the First Amendment issue:
In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concludes that Morse should not be held liable in damages for confiscating Frederick’s banner. And the cardinal principle of judicial restraint is that “if it is not necessary to decide more, it is necessary not to decide more.”
Perhaps the most unexpected part of the ruling was the concurring opinion of Justice Clarence Thomas. “I write separately to state my view that the standard set forth in Tinker v. Des Moines Community School District is without basis in the Constitution.”
“In my view,” Thomas continued, “the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools” at all. “In short,” wrote Thomas, echoing Hugo Black’s dissent in Tinker, “in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.
“I join the Court’s opinion,” Thomas concluded, “because it erodes Tinker‘s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.”
How do school officials and the courts apply these different standards for student expression?
It is still too soon to know how courts will interpret and apply the “Bong Hits 4 Jesus” ruling. Generally speaking, however, most courts have divided content-based restrictions on student speech into these three categories:
I. Vulgar, lewd, obscene, and plainly offensive speech (Fraser standard)
II. School-sponsored speech (Hazelwood standard)
III. All other student speech (Tinker standard)
To help clarify how courts review the actions of students and school officials, let’s take an example involving the controversial symbol of the Confederate flag.
If a student were disciplined for wearing a piece of Confederate flag clothing to school, a reviewing court would likely begin by applying the Tinker “substantial disruption” standard. Why? Because the speech is student-initiated (not school sponsored) and is not lewd.
Under Tinker, the court would have to determine whether: a) the school officials could have reasonably forecasted a “substantial disruption” of the school environment, perhaps based on past incidents of racial tension, or if the school officials overreacted out of an “undifferentiated fear or apprehension;” and/or b) the speech in question constituted a legitimate “invasion of the rights of others.”
School officials might argue the expression should be banned based on the more deferential Fraser standard. In a 2000 case, a federal appeals court agreed with this logic, reasoning that “the more flexible Fraser standard applies where the speech involved intrudes upon the function of the school to inculcate manners and habits of civility.”
In 2007, two different courts relied on Tinker to uphold school bans on the Confederate flag. A Missouri court ruled that a school district could restrict student speech where they reasonably forecast material and substantial disruption. And the Sixth Circuit ruled that officials at a Tennessee high school did not violate students’ free speech rights by prohibiting clothing that depicts the Confederate flag. “Even assuming that no students’ wearing of that symbol had caused a disruptive incident in the past,” wrote the court, “the district court nonetheless reasonably could conclude that displays of the Confederate flag would be likely to lead to unrest in the future.”
To use a slightly different example, imagine that a principal decides to change her school’s “Johnny Reb” mascot because she has received complaints from members of the community, who believe the symbol to be racially insensitive. Now which standard should apply?
A reviewing court would likely apply the Hazelwood standard in this scenario, because the mascot is a form of school-sponsored speech. In a decision based on these details, a federal appeals court reasoned that “a school mascot or symbol bears the stamp of approval of the school itself” and concluded that the principal “eliminated the symbol based on legitimate concerns.”
Finally, imagine that a group of students published a story about the Confederate flag and how students viewed the symbol in a privately published, underground student newspaper. Which standard would apply here?
In this case, the Tinker standard would apply, because the newspaper is student-initiated, rather than school sponsored.
May schools limit the time, place, and manner of student expression?
Yes, as long as the time, place, and manner regulations are reasonable and non-discriminatory.
The U.S. Supreme Court has said that “laws regulating the time, place or manner of speech stand on a different footing than laws prohibiting speech altogether.” First Amendment jurisprudence provides that time, place, and manner restrictions on speech are constitutional if:
(1) they are content neutral (i.e., they do not treat speech differently based on content);
(2) they are narrowly tailored to serve a governmental interest; and
(3) they leave open ample alternative means of expression.
Courts will generally grant even more deference to time, place, and manner restrictions in public schools because students do not possess the same level of rights as adults in a public forum. However, the time, place, and manner regulations must still be reasonable. This means, for example, that school officials could limit student distribution of material to certain locations and at certain times, but those regulations would need to be both reasonable and non-discriminatory.
May schools prohibit students from wearing armbands or buttons that contain a political or religious message?
Generally, no — but a school might be able to do so if the speech is excessively vulgar or indecent, or if it is inconsistent with the school’s basic mission.
In the Tinker case, the U.S. Supreme Court ruled that politically- or religiously-motivated student speech must be afforded the highest degree of protection. The problem, as Justice Abe Fortas explained, “lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.”
Fortas offered a standard to use in balancing those competing interests. Noting that a student’s rights do not embrace merely classroom hours, Fortas wrote that “when he’s in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others. Any word spoken,” he continued, “that deviates from the view of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.”
In 2007, a federal district judge in New Jersey relied on Tinker to rule in favor of two grade-school students who wore buttons to protest their school’s uniform policy. Judge Joseph A. Greenaway Jr. wrote in a 28-page decision the buttons did not “materially and substantially disrupt the work and discipline of the school.”
The dispute began when a fifth grader objected to the policy by wearing a button with a photograph of identically dressed members of the Hitler Youth, along with the words “No School Uniforms” imposed over them. According to the New York Times, “after [the student] wore the button for several weeks, the district sent a letter to his home in November, demanding that he stop or face suspension. Another fifth-grade student then began wearing one as well.”
After their son was threatened with suspension, his parents sued, claiming their son’s First Amendment rights were being denied. “It’s like forcing a swastika on someone,” the student explained. “It’s what Hitler did to his youth.”
The schools superintendent, Patricia L. McGeehan, said the district was “very concerned with the precedent this may set not only for Bayonne but for every public school district in New Jersey that tries to create and maintain a school environment conducive to learning and that is not offensive to students or staff.”
In his opinion, Judge Greenaway made clear that had the button depicted swastikas, a Confederate flag, or a burning cross, it would have been “plainly offensive” and he would have ruled differently.
In other cases, several lower courts have ruled in favor of school officials. In 2007, for example, the U.S. Court of Appeals for the Seventh Circuit ruled that a group of students disciplined for wearing a banned T-shirt to protest the outcome of the school’s official T-shirt contest were not engaged in expression protected by the First Amendment. As Judge Richard Posner explained, the subject matter of the protest, i.e. the right to an explanation by the school for how the election to pick an official eighth-grade T-shirt was conducted, was not a legal right. And in 2006, the U.S. Court of Appeals for the Ninth Circuit upheld a ruling against a high school student suspended for wearing a T-shirt that reflected his religious beliefs about homosexuality.
By a 2-1 margin, the Ninth Circuit stated that “it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution, and the exercise of that authority by school boards is surely consistent with Tinker’s protection of the right of individual students ‘to be secure and to be let alone.'”
Writing in dissent, Judge Diarmuid O’Scanlain argued that the majority was attempting to turn Tinker’s “right to be left alone” into “the right not to be offended,” a revision that amounted to impermissible viewpoint discrimination. He contended that the school officials’ actions gave preferential treatment to one side in the debate over the morality of homosexuality, a decision that constituted a “dangerous retreat from our tradition” of First Amendment viewpoint neutrality. “No Supreme Court decision,” he wrote, “empowers our public schools to engage in such censorship nor has gone so far in favoring one viewpoint over another.”
What this means is school officials may have limited authority to regulate political or religious buttons, clothing or armbands if they are disruptive or vulgar, or if the message runs contrary to the mission of the school. The range of conflicting opinions at the lower court level, however, suggests this is an area of the law that would benefit from a clarifying U.S. Supreme Court opinion.
Must a public school student salute the flag during a recitation of the Pledge of Allegiance?
No. In a 1943 decision, West Virginia Board of Education v. Barnette, the U.S. Supreme Court determined that a group of Jehovah’s Witnesses who objected to the flag salute and mandatory pledge recitation for religious reasons could not be forced to participate. This means that public school students who choose not to join in the flag salute for reasons of conscience may not be compelled to recite the Pledge of Allegiance.
The Court’s decision in Barnette was highly unusual, given that just three years earlier the Court ruled that students could be compelled to recite the Pledge in school. Writing for the 8-1 majority in the 1940 decision, Minersville School District v. Gobitis, Justice Felix Frankfurter had said:
Even if it were assumed that freedom of speech . . . includes freedom from conveying what may be deemed an implied but rejected affirmation, the question remains whether school children . . . must be excused from conduct required of all the other children in the promotion of national cohesion.
In the Barnette decision, however, the Court reversed course, declaring:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
The principles of Barnette were reinforced in 2006, when a federal district court in Florida ruled that a 1942 state law requiring students to stand and recite the Pledge of Allegiance violated the First and Fourteenth Amendments of the U.S. Constitution, even though the law allowed students to opt out, because they could only do so with written parental permission and were still required to stand during the recitation.
The Pledge of Allegiance has been a source of controversy for other reasons as well. Some students and parents view the words “under God” – which were added to the Pledge by Congress in 1954 at the height of the Cold War — as government endorsement of religion under the Establishment Clause. This argument had failed in the courts until 2002, when a panel of the Ninth Circuit Court of Appeals ruled that state-mandated recitations of the pledge in public schools were unconstitutional because of the words “under God.” That ruling was subsequently overruled by the U.S. Supreme Court, which announced by a 8-0 vote that Michael Newdow, the parent who brought the case on behalf of his daughter, lacked the legal standing to do so.
Overall, the Court has tended to view references to God in patriotic exercises and on our money as “ceremonial deism” that does not rise to the level of government establishment of religion prohibited by the First Amendment.
How far may schools go in restricting student speech in the interest of school safety?
School safety is arguably the single most compelling interest of any community; it is certainly the foremost issue in the minds of parents. Therefore, courts have become increasingly deferential to school safety concerns.
This is especially true since the school shootings at Columbine, Virginia Tech, and other communities, which have caused school administrators to focus more attention on ensuring safe school environments. As a result, many public schools across the country have adopted a variety of restrictions on students’ free expression rights.
However, some restrictions of student speech rights have been excessive, and many students have been unfairly punished for artwork, class essays, and poems. Two commentators neatly illustrate the problem:
In this evolving area of the law, the goal of creating safe and orderly school environments and the potential for school district liability demand that schools carefully assess threats of violence and determine appropriate responses. Yet, in marshalling resources to curb aggression and violence in our nation’s schools, policy makers, administrators, and teachers must balance the often competing demands for safer schools with the constitutional rights of their students. The goal of school safety cannot be achieved by compromising the constitutional guarantees of those who comprise our school communities.
From a legal perspective, schools can restrict student speech in the name of safety if
(1) they can reasonably forecast substantial disruption under Tinker, or
(2) if the student expression is a “true threat.” A 2007 ruling from the 11th circuit explained it this way: just as there is no right to yell “fire” in a crowded theater or to make false statements about explosives while on board an aircraft, “there also is no First Amendment right allowing a student to knowingly make comments, whether oral or written, that reasonably could be perceived as a threat of school violence, whether general or specific, while on school property during the school day.”
However, though school safety is a compelling governmental interest that may justify various kinds of restrictions on student speech, those restrictions must still be reasonable.
For example, the Ninth Circuit Court of Appeals applied the reasonableness standard in a case where a student was expelled for writing a poem filled with violent imagery. In Lavine v. Blaine School District, the court wrote: “We review . . . with deference, schools’ decisions in connection with the safety of their students even when freedom of expression is involved.”
The case originated when James Lavine wrote a poem entitled “Last Words” that examined the feelings of a student who murdered his classmates. Lavine said he wrote the poem to “understand the phenomenon” of school shootings. However, his English teacher, a school counselor, and the school’s administrators were concerned Lavine might harm himself or others. Lavine and his father sued the school, contending that the emergency expulsion based on the content of Lavine’s poem violated his First Amendment rights. School officials countered that they were justified under Tinker and the true-threat line of cases.
A district court sided with Lavine. But the Ninth Circuit reversed, finding that under the totality of the circumstances, the school district was justified in believing that the expulsion was necessary for safety reasons. “Even in its most mild interpretation, the poem appears to be a ‘cry for help’ from a troubled teenager contemplating suicide,” the court wrote. “Taken together and given the backdrop of actual school shootings, we hold that these circumstances were sufficient to have led school authorities to forecast substantial disruption of or material interference with school activities-specifically, that James was intending to inflict injury upon himself or others.”
In other cases involving student expression, courts have determined that school officials violated the First Amendment by excessively punishing students for their writing or artwork. For example, in Boman v. Bluestem Unified School District, a federal court in Kansas ruled that school officials overreacted by expelling a student for posting a poem on a classroom door. The court noted that the evidence “simply fails to show that the poster caused or was likely to cause a substantial disruption in the operation of the school.” Consequently, it is vital that school officials accurately the assess the degree to which the student expression constitutes a “true threat.”
How do courts determine whether speech is a “true threat”?
The U.S. Supreme Court has ruled that true threats receive no First Amendment protection. Unfortunately, the Court has not clearly defined a test for determining what types of speech constitute a true threat. As a result, the lower courts have adopted a variety of tests to determine whether speech constitutes a true threat.
Some courts have determined that “if a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression . . . [then] the message conveys a ‘true threat.’ ”
Other courts consider a series of factors in determining whether speech constitutes a true threat, including (1) the reaction of the recipient of the speech; (2) whether the threat was conditional; (3) whether the speaker communicated the speech directly to the recipient; (4) whether the speaker had made similar statements in the past; and (5) whether the recipient had reason to believe the speaker could engage in violence.
The Louisiana Supreme Court, for example, ruled in 2001 that a student could face criminal charges for saying it would be easy to shoot students he didn’t like and that he was going to blow up the school. The state high court noted that the student made the comments only five days after the Columbine tragedy, and emphasized “the climate of fear already surrounding the school.” Similarly, the Tenth Circuit ruled in 2003 that a school district did not violate a student’s right to substantive due process by suspending him when he should have known that he brought a weapon onto school grounds.
However, a California appeals court ruled in 2001 that a student could not be criminally charged under an anti-threat law for turning in a painting depicting extreme violence against a peace officer who, a month earlier, had cited the student for drug possession.
The state appeals court noted that “a painting-even a graphically violent painting-is necessarily ambiguous.” The court also noted that the student never showed the painting to the peace officer, but simply turned in the painting as a class project.
Many cases regarding true threats made by students are just now circulating through the state and federal courts. Consequently, school officials are strongly advised to seek legal counsel in this evolving area of the law anytime a question arises.
May schools enforce speech codes on school grounds?
Yes. Within limits, public schools have discretion in implementing speech codes, especially those involving harassment. Such codes are usually part of an effort by school officials to create a non-discriminatory, safe environment where all students are comfortable and free to learn.
Despite the best of intentions, speech codes often collide with the free speech rights of students. Problems tend to arise when these codes extend beyond their intended goal and restrict areas of protected First Amendment speech, such as an individual’s right to express religious or political views, or to discuss values and morality. As discussed in the questions and answers that follow, many attempts at promoting more thoughtful behavior, though well meaning, may violate students’ constitutional rights.
When does student speech become “harassment?”
There is no bright legal line that determines when student speech becomes harassment. Generally, when a student or a group of students repeatedly intimidate or threaten another student, the behavior rises to the level of harassment. Harassment may also be written, oral, or physical acts that harm a student, damage the student’s property, interfere with the student’s education, or disrupt the orderly operation of a school.
School officials must restrict certain kinds of harassing language and actions they know about or they can be held civilly liable. Categories of harassment are found in several federal statutes and prohibit discrimination based on gender; disability; and religion, race, color, or national origin. Many states have similar state laws, which can impose different standards.
The U.S. Supreme Court recognizes that students may even bring suit against the school for a “hostile environment” based on student-to-student sexual harassment. In such cases, the student must prove that (1) the sexual harassment is “severe, pervasive, and objectively offensive”; and (2) it “undermines and detracts from the victim’s educational experience” to the point that the harassed student is denied equal access to resources and opportunities. In order to be held liable for student-to-student harassment, the school must have actual knowledge of the misconduct, the harassment must be severe and pervasive, and the school must be willfully indifferent.
For example, a mother seeking monetary and injunctive relief under Title IX of the Education Amendments of 1972 alleged that her 5th grade daughter had been the victim of sexual harassment by another student in her class. The case made its way to the U.S. Supreme Court, which considered whether a private damages action may lie against the school board in cases of student-to-student harassment. In its ruling, the Court wrote the following conclusion:
We conclude that [a private damages action] may [be brought against a school], but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.
Using these parameters, schools can, and in some cases must, craft speech codes restricting harassing language and conduct. Concern about harassment, however, should not lead to the hasty adoption of speech codes that would censor protected forms of student speech. Under the First Amendment, schools may not implement speech codes that are overly broad or vague.
Some recent “anti-bullying codes” fall into this category. In 2003, the U.S. District Court for the Eastern District of Michigan ruled that a school district’s “verbal assault” policy, as well as the state’s enabling statute upon which it is based, were unconstitutionally vague and overbroad. In the 2001 case, Saxe v. State College Area School District, the Third Circuit ruled that schools may not create speech codes that forbid all offensive or hurtful language. And as the Supreme Court has pointed out, one of the foundational principles of the First Amendment is that “the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”
In essence, this means student speech that expresses ideas about values, morality, religion, or politics may not be restricted without some clear evidence that such speech interferes with the rights of another.
What limits, if any, may school officials place on student expression that occurs off school grounds?
Traditionally, courts have been reluctant to permit restrictions on student speech that occurs entirely off school grounds, finding that the connection to the school is “too attenuated.” Yet the courts are also quick to point out that if the student speech has a closer connection to the school, such as the distribution on school grounds of newspapers that were created off campus, school officials may be able to provide the connection needed to bring this situation under their control.
In addition, if there is a connection between off-campus speech and on-campus disruption, the off-campus speech and behavior may be subject to reasonable regulation. For example, a student’s off-campus drug dealing provides a sufficient basis for an expulsion because of the likelihood that the student will also sell drugs on campus. Similarly, off-campus threats to do harm on campus may also give rise to disciplinary measures.
With the advent of the Internet, the traditional view of off-campus speech has changed. Although most courts continue to view off-campus speech as beyond the jurisdiction and responsibility of the school, some courts have taken the view that if a student’s off-campus expression is sufficiently disruptive to the learning environment, the school may discipline the student. In one case, this rationale allowed the court to uphold the suspension of a student for offensive material posted on his home Web site that disrupted the school environment. In another case, however, a federal district court in Pennsylvania ruled in 2007 that school officials violated a high school student’s free speech rights when they disciplined him for his off-campus parody MySpace profile of the school’s principal. The distinction between these two rulings is the extent to which each school accurately characterized the student speech as being legitimately disruptive of the school environment. It is worth noting, however, that any form of online threat would be unlikely to receive First Amendment protection, even if no actual disruption could be demonstrated.
Is profanity a form of expression protected by the First Amendment?
It can be, depending upon the circumstances and context. There is no general exception for profanity under the First Amendment unless the profanity qualifies as “fighting words.” Fighting words are defined as words that by their very nature incite an immediate breach of the peace.
One case worth noting is the 1971 case of Cohen v. California, in which the U. S. Supreme Court reversed the conviction of a man who had been arrested for wearing a jacket in a courthouse bearing the words “F*** the Draft.” The court noted that the profane word on the jacket was not directed at a particular individual and aroused no violent reaction.
However, public school students have greater restrictions placed on their First Amendment rights than adults. In fact, school officials generally can prohibit vulgar and offensive student language under the Supreme Court’s 1986 decision in Bethel Sch. Dist. No. 403 v. Fraser. In that decision, the Supreme Court wrote that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”
One federal appeals court judge clarified the distinction between free speech and profanity as it pertains to public schools quite well: “the First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.”
Student Distribution of Literature
May students distribute religious or political literature at school?
Yes. Students have a right to distribute religious or political literature on public school campuses, subject to reasonable time, place, and manner restrictions. This means that the school may specify at what times the distribution may occur (e.g., during lunch hour, or before or after classes begin), where it may occur (e.g., outside the school office), and how it may occur (e.g., from fixed locations as opposed to roving distribution). These restrictions should be reasonable and must apply evenly to all nonschool student literature.
Public school officials may insist on screening all student materials prior to distribution to ensure the appropriateness for a public school. Any such screening policy should provide for a speedy decision, a statement of reasons for rejecting the literature, and a prompt appeals process.
In 2007, the U.S. District Court of Eastern Michigan agreed with a middle school student who claimed the district’s literature distribution policy unfairly restricted his right to distribute fliers about abortion. The district countered by saying it placed reasonable time, place and manner restrictions on all nonschool-sponsored literature, but the District Court was unconvinced. Officials must have “more than a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint,” wrote the court. Per Tinker, the “clear mandate is that it is unconstitutional to defer to school officials in the absence of proof of a substantial disruption.”
In response to this opinion, the independent monthly news publication School Law News published the following list of “do’s and don’ts” for flier polices:
- Do apply your policy even-handedly to all students, irrespective of the political or religious message their fliers advocate.
- Don’t wait to develop a policy until a controversy arises at your school. A policy enacted right after a controversy raises the possibility that a challenger will be able to establish that the policy was designed to suppress free expression. It is better to have thought the issue through deliberately rather than to have an administrator make a spur-of-the-moment decision that will end up inviting a lawsuit against the district.
- Do regulate the time, place and manner in which flier distribution can occur to the extent such restrictions are intended to prevent disruptions to school operations.
- Don’t create such a prohibitive policy that students are discouraged or deterred from attempting to engage in important civic and public discourse.
- Do consult with counsel to ensure that your policy complies with constitutional principles.
Because the speech rights of students are not coextensive with those of adults, schools may prohibit the distribution of some types of student literature altogether. Included in this category would be materials that:
- would likely cause substantial disruption of the operation of the school. Literature that uses fighting words or other inflammatory language about students or groups of students would be an example of this type of material.
- violate the rights of others. Included in this category would be literature that is libelous, that invades the privacy of others, or infringes on a copyright.
- are obscene, lewd, or sexually explicit.
- advertise products that are illegal for minors, such as alcohol.
- students would reasonably believe to be sponsored or endorsed by the school. (One recent example of this category was a religious newspaper that was formatted to look like the school newspaper.)
Although school officials have considerable latitude in prohibiting the distribution of materials that conflict with their educational mission, schools may not generally ban materials based solely on content. Similarly, schools should not allow a “heckler’s veto” by prohibiting the distribution of materials simply because they are unpopular or controversial. If Christian students are allowed to distribute their newsletters, for example, Buddhists, Muslims, and others must be given the same privilege.
Student Dress and School Uniforms
Is a student’s choice of dress protected by the First Amendment?
Yes, in some cases. Courts have recognized that students’ choice of clothing can communicate certain messages and ideas, ranging from their stance on political and social issues to their social standing or religious beliefs.
This protection is largely the result of the Tinker case, in which the Court said that the decision of several students to wear black armbands to protest U.S. involvement in Vietnam was “akin to pure speech” and entitled them to constitutional protection. However, the high court also made the following statement with regard to student dress: “The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment.”
Proponents and opponents of dress codes cite different parts of the Tinker opinion to support their respective positions. Most lower courts recognize that student clothing, at the very least, implicates the First Amendment. In other words, student clothing may be a form of expression that leads to a balancing of student free expression rights with the interests of the school, if by wearing the clothing the student intends to convey a message that could be understood by an observer.
As David Hudson explains on firstamendmentcenter.org, many courts analyze student dress cases under a threshold test established by the Supreme Court in two of its flag-desecration cases, Texas v. Johnson and Spence v. Washington. This two-part test asks: (1) whether the student intended to convey a particular message, and (2) whether reasonable observers would understand this message.
Although student dress may implicate the First Amendment, more and more school districts are turning to dress codes and uniforms as a way to increase discipline and school safety. And federal judges in several states have upheld school uniform policies in the face of constitutional challenges brought by students and parents.
Generally, this means a student has more First Amendment protection to wear a protest button or logo than to wear certain types of clothing that don’t contain political or religious messages. In addition, a content-neutral restriction on messages on clothing (e.g., a prohibition on all printed messages on clothing) might withstand legal challenge as long ads the school affords ample alternatives for students to express themselves. Keep in mind, however, that the U.S. Supreme Court has never decided a student dress code case.
What are the constitutional objections to mandatory dress codes and uniform policies?
Generally, the most common constitutional claims alleged are (1) violations of students’ First Amendment rights to freedom of expression; (2) violations of students’ First Amendment rights to freely practice their religion; or (3) violations of parents’ 14th Amendment liberty interests in rearing their children.
Many students claim that requiring them to wear particular clothing deprives them of the ability to freely express themselves through their choice of dress. In one case, students from a Kentucky high school claimed that their school’s dress code policy prohibiting clothing with any logos other than the official school logo was a violation of their free expression rights. The federal court sided with the school district, finding that it had “struck a reasonable balance” between preventing potential disruptions and protecting students’ First Amendment rights.
In another case, a high school student brought a lawsuit challenging the constitutionality of a school board policy prohibiting male students from wearing earrings. The school, which had enacted the ban as part of an effort to curb the presence and influence of gangs on campus, provided substantial evidence of gang presence and activity-and the resulting violence-in its schools. Ultimately the court upheld the district’s dress code policy, concluding that the board’s concern for the safety and well-being of its students and the curtailment of gang activities was rational and did not violate the First Amendment.
Some students have argued that a particular dress code or uniform policy conflicts with their religious beliefs, in violation of the Free Exercise Clause. For example, two high school students in Texas sued after school officials prohibited them from wearing rosaries to school, based on the belief that the rosaries were considered “gang-related” apparel. The students claimed that the application of the rule to them violated both their free speech and free exercise rights.
This time, the federal court ruled that the school violated the First Amendment rights of the two students. Although the court did “not doubt that a dress code can be one means of restricting gang activity on campus,” it also concluded that “the regulation places an undue burden on Plaintiffs, who seek to display the rosary not to identify themselves with a gang, but as a sincere expression of their religious beliefs.”
Yet another objection, this one raised by parents, has been that forcing students to wear particular clothing infringes on a parent’s 14th Amendment liberty interest in rearing their child, in violation of the Due Process Clause. In fact, many parents around the country have formed groups devoted to challenging school uniforms. These groups have argued that the implementation of restrictive uniform and dress code policies violates the First Amendment and the principle of democratic self-choice.
So far, the courts are tending to side with school districts on parental and student challenges to uniform policies. Because the law is still rapidly developing in this area, school districts should consult with legal counsel before adopting a broad-based uniform policy. At the very least, any school policies requiring uniforms should have a provision that protects the right of parents and students to opt out on religious grounds.
How does a court determine if a student’s choice of dress is constitutionally protected?
Courts will employ a variety of tests to determine whether restrictions on student dress violate First Amendment free expression rights. Some courts apply a two-part test taken from two of the Supreme Court’s flag-burning cases, Texas v. Johnson and Spence v. Washington. Under this test, a court will ask two questions: (1) Did the student intend to convey a particularized message? And (2) Is that particularized message one that a reasonable observer would understand?
A federal court in New Mexico applied this test to determine a student did not have a First Amendment right to wear sagging pants. The student argued that his wearing of the pants conveyed the particular message of African American heritage in the hip-hop fashion and lifestyle. The court rejected the student’s First Amendment claim, finding that a reasonable observer would not find a particularized message in his conduct. “Sagging is not necessarily associated with a single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States,” the judge wrote.
Other courts will apply the Tinker standard to student dress. Under the Tinker standard, school officials cannot regulate student expression unless they can reasonably forecast that the expression will cause a material interference or substantial disruption of the school environment.
In 2003, Michigan high school student Bretton Barber successfully obtained a preliminary injunction in a federal district court that prevented school officials from banning his T-shirt showing a photograph of President George W. Bush with the words “International Terrorist.” U.S. District Judge Patrick J. Duggan ruled in favor of Barber because, he said, school officials had silenced Barber’s expression more out of a dislike of its message than fear that it might disrupt school. Duggan applied the Tinker standard and determined that the school officials failed to meet that test. In fact, the judge compared Barber’s shirt opposing President Bush’s policies in Iraq to the students from the Tinker case who opposed the Vietnam War:
“Clearly the tension between students who support and those who oppose President Bush’s decision to invade Iraq is no greater than the tension that existed during the United States’ involvement in Vietnam between supporters of the war and war-protestors,” Duggan wrote, adding that “students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.”
Still other courts will apply the more deferential standard from the Court’s 1986 decision in Bethel v. Fraser. In Fraser, the court deemed that school officials had greater leeway to regulate student speech that was indecent and lewd. Though the case involved an actual student speech before a school assembly, lower courts have used the Fraser decision to uphold school restrictions on T-shirts and other clothing with messages deemed lewd or indecent.
For example, a federal court in Virginia upheld a middle school student’s suspension for wearing a T-shirt with the message “Drugs Suck.” Rejecting the students’ argument that the shirt was simply an antidrug shirt, the court focused instead on the fact that the word “suck” was vulgar.
Finally, some courts will analyze student dress challenges under yet another legal analysis, the so-called O’Brien standard. Under the O’Brien test, a dress code or uniform policy will be constitutional if
- the policy is authorized under state law;
- the policy furthers an important governmental interest;
- the policy is unrelated to the suppression of free expression; and
- the incidental restriction on First Amendment freedoms is no more than necessary to further the governmental interest.
May schools adopt mandatory uniform policies?
The U.S. Supreme Court has not decided a case on school uniforms. However, most lower courts are siding with school districts that adopt uniform policies.
The push for school uniforms gained momentum in 1996 when President Clinton stated: “If it means that teenagers will stop killing each other over designer jackets, then our public schools should be able to require school uniforms.” The president ordered the U.S. Department of Education to issue manuals on the efficacy of school uniforms. The manual stated that school uniforms represent “one positive and creative way to reduce discipline problems and increase school safety.”
One federal appeals court that upheld a school uniform policy in Louisiana gave the following explanation for its decision:
The School Board’s purpose for enacting the uniform policy is to increase test scores and reduce disciplinary problems throughout the school system. This purpose is in no way related to the suppression of student speech. Although students are restricted from wearing clothing of their choice at school, students remain free to wear what they want after school hours.
The same federal appeals court upheld a mandatory uniform policy in a Texas school district and rejected students’ First Amendment challenges to the policy. The court reasoned that the policy “was adopted for other legitimate reasons unrelated to the suppression of student expression.”
Though the trend among the courts seems to be in favor of uniforms, the policies will still face legal challenges. If a school district adopts a uniform policy, it would be wise to contain an exemption for those students with sincere religious objections. The district should also consider providing financial assistance to those students who cannot afford the uniforms.
May a school constitutionally punish students for wearing long hair or dying their hair an unusual color?
The courts are much divided on this issue. The First, Second, Fourth, Seventh, and Eighth Circuits seem receptive to students’ claims regarding personal choice with respect to their hair. However, the Third, Fifth, Sixth, Ninth, and Tenth Circuits seem unreceptive.
Most of the cases in which lawsuits have been brought against schools have involved hair length (especially sideburns in the 1970s) and earrings. Many of the student hair cases today deal not with length but color. For example, a high school student from Virginia sued his school district in federal court after school officials suspended him for having blue hair. A federal judge reinstated the student, finding a violation of his constitutional rights.
Generally speaking, the courts that have found a constitutional issue have ruled along similar lines, claiming that a student’s choice of hair color and style raises either a First Amendment free expression issue or a 14th Amendment liberty or equal protection interest. Some courts have even pointed out that regulating a student’s choice of hairstyle impacts with greater permanence than regulating a student’s dress because, unlike with hairstyle or color, the student can wear what he pleases outside school. Conversely, the courts that have sided with school districts have generally ruled that the students’ wearing of long hair “does not rise to the dignity of a protectable constitutional issue.”
Some courts have upheld grooming regulations for students who wish to participate in extracurricular activities, including athletics. The 11th U.S. Circuit Court of Appeals, for example, justified a school’s grooming regulations as a “reasonable means of furthering the school board’s undeniable interest in teaching hygiene, instilling discipline, asserting authority and compelling uniformity.”
In sum, different courts have come to different legal conclusions, leaving this a muddled area of the law. As a result, students’ rights in this regard largely depend on where they live.
May a school punish a student for wearing Confederate flag attire?
It depends on whether the school officials can reasonably forecast that the wearing of the Confederate flag will lead to a substantial disruption of the school environment. In one decision, a court rejected a student’s First Amendment right to wear a Confederate flag jacket because the school officials had cited “several incidents of racial tension.” According to the court, “school officials are not required to wait until disorder or invasion occurs” but only need “the existence of facts which might reasonably lead school officials to forecast substantial disruption.”
In 2007, a U.S. district court in Missouri reached a similar conclusion, ruling that a school district did not violate a student’s free speech rights by prohibiting him from wearing a Confederate flag symbol in school. The court cited principles enunciated by other court that were relevant to the case, including: (1) the prior incident need not have occurred at school to be relevant; (2) a school may rely on past racial incidents that do not involve the Confederate flag specifically; and (3) subjective beliefs about the flag’s real meaning is largely irrelevant, as courts recognize that the flag is racially divisive. And the Sixth Circuit, also in 2007, ruled that a Tennessee high school did not run afoul of the First Amendment by prohibiting the Confederate flag in its dress code. “Even assuming that no students’ wearing of that symbol had caused a disruptive incident in the past, the district court nonetheless reasonably could conclude that displays of the Confederate flag would be likely to lead to unrest in the future.”
In 2001 another federal court reached the opposite conclusion, finding that a school district in Kentucky failed to satisfy the Tinker standard by showing any reasonable forecast of substantial disruption. The appeals court determined that the school district’s policy with respect to the Confederate flag appeared to be a “targeted ban” that was not applied even-handedly to other racially divisive symbols.
Still another court applied the Fraser standard to a Confederate flag. This federal court ruled that the controlling legal standard does not come from Tinker. School officials’ actions can be analyzed, they stated, under “the more flexible Fraser standard where the speech involved intrudes upon the function of the school to inculcate manners and habits of civility.”
What should a school do if a student has a sincere religious objection to a uniform policy?
In the spirit of the First Amendment, and as a matter of good policy, schools should have opt-out provisions for those students who have a sincere religious objection to a uniform policy. Although the courts have not ruled directly on this point, schools may not be legally required to allow exemptions to their uniform policies under current law. However, at least one court has indicated there was enough ambiguity in a case over religious objections to a dress code to have justified a trial.
In that case, the family of an elementary school student in North Carolina obtained a settlement in a federal lawsuit that provided a religious exemption to the school’s uniform policy. Aaron Ganues had been suspended twice for not wearing a school uniform. His great-grandmother-Aaron’s guardian and a local minister- argued that wearing the uniforms would conflict with the family’s religious beliefs that uniforms teach students to obey authority mindlessly, making them vulnerable to the devil. The school district fought the lawsuit but agreed to settle after a federal judge refused to dismiss the suit in December 1999. Consequently, the school district agreed to amend its policy to provide exemptions from its policy for sincere religious objections.
Students and the Internet
What are the primary considerations to make when determining issues of student speech that occur in cyberspace?
Student speech and the Internet raise some important and complex issues for educators, students, and parents. As David Hudson explains on firstamendmentcenter.org, “The area remains muddled because the U.S. Supreme Court has never addressed a student Internet speech case. As the Pennsylvania Supreme Court wrote in 2002 in J.S. v. Bethlehem Area School District: “[T]he advent of the Internet has complicated analysis of restrictions on speech.” The issue becomes only more important as more and more students not only access the Internet frequently but also create their own home pages on social-networking sites such as MySpace or Facebook.”
Initially, there was little law governing what was and wasn’t acceptable speech on the Internet. In fact, the U.S. Supreme Court didn’t issue a ruling on Internet speech until 1997. In that year, the Court returned a verdict in the case of Reno v. ACLU that helped clarify how Internet speech should be treated in the future.
The Court had been asked to resolve a challenge to the constitutionality of the Communications Decency Act (CDA) of 1996. In particular, the American Civil Liberties Union (ACLU) took issue with two provisions of the CDA that prohibited the online communication of “patently offensive” and “indecent” speech.
The Court agreed that the disputed provisions of CDA were unconstitutional under the First Amendment because “the general undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of non-pornographic material with serious educational or other value.” The Court stressed that speech on the Internet should be entitled to the highest possible degree of protection, just as it would in print.
In light of this ruling, schools should consider the following factors before regulating student speech on the Internet:
- Was the content created as part of the school curriculum, such as a class project or the official school newspaper? If so, the speech in question is considered school-sponsored, and the Hazelwood standard of expression would apply. In that case, schools are granted greater leeway in regulating speech that “students, parents, and members of the public might reasonably perceive to bear the imprimatur [endorsement] of the school.”
- Was the content created on school computers during the student’s free time? If it was, the student will likely contend the Tinker standard governs. Under that standard, the speech in question is entitled to protection under the First Amendment as long as it does not (a) cause a material or substantial disruption to the school community, or (b) infringe on the rights of others. An attorney for the school would likely argue the speech should be held to the Hazelwood standard of expression because school computers were being used.
- Was the content created during a structured class or lab time? If so, the Hazelwood standard should apply, because the content could be linked to the curriculum.
These factors, of course, relate to student speech on the Internet that occurs on the school grounds. If the speech in question occurs on a private Web site, a different set of issues is at stake.
What limits, if any, can be placed on the private Web sites of students?
Case law in this area is still developing, so a clear legal standard has yet to be defined.
School officials should exercise caution before attempting to limit student expression on a private Web site maintained off school grounds.
On one hand, schools have a vital interest in keeping all members of their community safe; if a student produces speech that constitutes a “true threat,” schools have a responsibility to act. However, in the majority of lawsuits between students and administrators so far, judges have been more likely to defend the free expression rights of the students, whose speech they usually determined did not constitute a “true threat.”
As one judge put it, in a case where students had been punished for publishing an underground newspaper that was produced and sold off campus, “our willingness to defer to the schoolmaster’s expertise in administering school discipline rests . . . upon the supposition that the arm of authority does not reach beyond the schoolhouse gate.”
To help understand the distinctions that educators should make when considering off-campus Internet speech, Edwin Darden, former senior staff attorney for the National School Boards Association (NSBA), suggested in an Online Journalism Review article that student Web sites be divided into three categories:
- Sites that are offensive, obnoxious, and insulting.
- Sites that are offensive, obnoxious, and insulting, and also contain some sort of veiled threat of violence or of destruction of property.
- Sites that contain an outright blatant threat.
For the first category, under which most student sites fall, Darden’s “advice to schools is, you just need to develop a thick skin.” For the second category, because the nature of the threat is unclear, educators should be sure to get further information on the subject before passing judgment too quickly.
For the third category, however, if the speech in question represents an actual threat, the student could be punished, as long as schools can demonstrate that the speech could disrupt the school or that it seriously threatens harm to a member of the school community.
Students generally have broad freedom to express themselves on the Internet on their own time, using off-campus computers. However, some school officials have suspended students for their off-campus Web postings that lampooned or criticized school officials or contained vulgar commentary.
Some courts have sided with the students, saying that school officials may not censor student speech unless they can reasonably forecast that the speech will cause a substantial disruption of the school environment or invade the rights of others. Other courts and commentators have said that school officials simply lack the authority to regulate students’ off-campus behavior – on or off the Internet.
As David Hudson explains, a range of lower court opinions exist. In 1998 a federal court in Missouri ruled in Beussink v. Woodland R-IV School District that school officials violated the First Amendment rights of a student when they suspended him for 10 days for his home page that criticized the school. “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker,” the judge wrote. “The public interest is not only served by allowing Beussink’s message to be free from censure, but also by giving the students at Woodland High School this opportunity to see the protections of the United States Constitution and the Bill of Rights at work.”
In 2002, however, the Pennsylvania Supreme Court reached the opposite conclusion. The case involved a Web site that contained derogatory comments about a math teacher and the principal. “Much of the site was devoted to ridiculing the math teacher,” Hudson says, “comparing her to Adolf Hitler and making fun of her appearance. The site even contained a phrase that said ‘give me $20 to help pay for the hitman.'”
School officials expelled the student, citing the extreme emotional distress suffered by the math teacher and the disruption the Web site caused at the school. The student argued that his Web page was a form of protected speech.
The Pennsylvania courts, including the Pennsylvania Supreme Court in 2002, sided with the school district. In examining the case, the state high court first determined whether the speech was a true threat. School officials argued that it was by focusing on the reference to hiring a hit man. The high court disagreed with this point, writing: “We believe that the Web site, taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt to humor or parody. However, it did not reflect a serious expression of intent to inflict harm.”
But the high court determined school officials had the authority to regulate the student’s Web site. “We find there is a sufficient nexus between the web site and the school campus to consider the speech as occurring on-campus.” The court determined the speech occurred on campus because the student accessed his site while at school, showed it to a fellow student and informed other students about its existence. “We hold that where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech,” the court wrote.
The court then reasoned that school officials could punish Swidler under both Fraser — because the site was vulgar and highly offensive — and Tinker – because it caused a substantial disruption of school activities.
As Hudson writes, “The different results and reasoning used by the courts in these cases show that the issue of student Internet speech is far from settled. The courts are divided on several important legal questions, including:
- whether school officials have any legal authority to regulate student online expression created off-campus;
- whether and under what standard school officials can regulate off-campus student speech that is distributed at school either by the student who created it or other students;
- whether school officials have more authority to regulate student online speech if it is created off-campus but contains a link to the school’s own Web site and is aimed directly at the school audience.
Washington trial court Judge William Thomas McPhee sums up the central tension well when he writes: “Schools can and will adjust to the new challenges created by … students and the Internet, but not at the expense of the First Amendment.”
Is it constitutional for school officials to censor a school-sponsored publication, such as a newspaper or a yearbook?
How much school officials may censor school-sponsored student publications depends on whether the school has created an open public forum.
For years, students were protected by a high standard of freedom of expression based on the Supreme Court’s historic 1969 ruling in the Tinker case, in which the Court ruled that school officials couldn’t prevent students from expressing their opinions on school grounds, as long as they didn’t (a) cause a material or substantial disruption of the school environment, or (b) intrude on the rights of others.
For years, most courts supported the notion of granting students a high degree of protection under the First Amendment. That changed in 1988.
In January 1988 the Supreme Court, in a narrow 5-3 vote, ruled that the principal of Hazelwood East High School was justified in censoring a series of controversial articles in his school’s newspaper, The Spectrum.
In the ruling of Hazelwood v. Kuhlmeier, the Supreme Court established a new standard of protection for student expression, by ruling that schools may limit the personal expression of students if their speech can be perceived to bear the imprimatur of the school, with an important caveat. Writing for the majority, Justice Byron White said “censorship of school-sponsored student expression is permissible when school officials can show that it is reasonably related to legitimate pedagogical concerns.”
As a result, administrators now have a great deal of leeway in determining what is and isn’t acceptable material in school-sponsored publications and events, but only if their school has not established a public forum.
In other words, if the school has an official policy of prior review in place, or can clearly establish a history of prior review, the Hazelwood standard applies and a greater degree of censorship is allowed. If, however, the school declares itself an open forum for ideas, then the Tinker standard applies.
In 2007, for example, the California Court of Appeals concluded that a high school erred by announcing it should never have published a student’s editorial in the school newspaper and ordering all remaining copies of the paper to be retracted. Under California’s education code, student speech may only be prohibited if it specifically calls for a disturbance or is written in such an incendiary fashion that a substantial disruption is likely to occur. Because that was not true of the student’s editorial about illegal immigration, the court reasoned, the district infringed on the student’s free speech rights.
What is a public forum?
A public forum is a place that has, by tradition or practice, been held out for general use by the public for speech-related purposes.
To determine which of the standards of student expression applies in a given case, many courts first conduct a “public forum analysis.” The public forum analysis determines whether individuals may have access to places for communicative purposes.
There are three types of public forums:
1. A “traditional, or open, public forum” is a place with a long tradition of freedom of expression, such as a public park or a street corner. The government can normally impose only content-neutral time, place, and manner restrictions on speech in a public forum. Restrictions on speech in a public forum that are based on content will be struck down, unless the government can show the restriction is necessary to further a compelling governmental interest.
2. A “limited public forum” or “designated public forum” is a place with a more limited history of expressive activity, usually only for certain groups or topics. Examples of a limited public forum would include a university meeting hall or a city-owned theater. The government can limit access to certain types of speakers in a limited public forum, or limit the use of such facilities for certain subjects. Despite these more proscriptive guidelines, however, a governmental institution may still not restrict expression at a limited forum unless that restriction serves a “compelling interest.”
3. A “closed public forum” is a place that, traditionally, has not been open to public expression, such as a jail or a military base. Governmental restrictions on access to a nonpublic forum will be upheld as long as they are reasonable and not based on a desire to suppress a particular viewpoint. This standard is far more deferential to government officials.
With regard to public schools, the Supreme Court elaborated on the public forum doctrine in cases involving the use of teacher mailboxes, Perry Education Association v. Perry Local Educators’ Association, and student newspapers, Hazelwood School District v. Kuhlmeier.
In Perry, the Court determined in-school teacher mailboxes were not public forums, and that the school district could allow the official teacher union sole access to the mailboxes, even if it meant excluding a rival teacher union. “Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity,” the Court wrote.
The Court went on to say that the deferential access provided to the official teachers’ union was a reasonable way to “prevent the District’s schools from becoming a battlefield for inter-union squabbles.”
In Hazelwood, the Court determined that a high school newspaper produced as part of a journalism class was not a public forum. Citing Perry, the Court wrote: “Hence, school facilities may be deemed to be public forums only if school authorities have ‘by policy or practice’ opened those facilities for ‘indiscriminate use by the general public,’ or by some segment of the public, such as student organizations.” The majority in Hazelwood also reasoned that because the production of the newspaper was “part of the educational curriculum and a regular classroom activity,” it was a nonpublic forum.
Since the Hazelwood decision, many courts have deferred to the judgment of school officials. As a result, many forms of censorship that had previously been unacceptable under the Tinker standard of expression have been upheld.
Since the Hazelwood ruling, how important is state law in determining the rights of student journalists?
It is very important. With the exception of California, which passed a state law in 1971 guaranteeing all students full protection under the First Amendment, every other state needed to make a decision after the ruling: Did they want to abide by the standard given in Hazelwood v. Kuhlmeier, or did they want to pass a state law providing more protection for student expression?
Shortly after the ruling, in July 1988, Massachusetts became the first state since California to pass a law strengthening the First Amendment rights of students. This broadly worded law provides that “the right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.”
Kansas, Colorado, Iowa, Arkansas, and, most recently, Oregon have since followed suit and passed so-called anti-Hazelwood laws. Similar legislation has been introduced in more than half the remaining states. In fact, the constitutions of most states have language that supports, to varying degrees, free expression. If you are unsure of what protections exist in your state, check the state and local laws as well as the state constitution.
May a school legally censor an off-campus, “underground” student publication?
Partly because of Hazelwood, which allows administrators to censor school-sponsored publications as long as the decision is “reasonably related to legitimate pedagogical concerns,” a greater number of students have resorted to their own independent newspapers. Since these publications are not school sponsored, they receive the same level of protection any other newspaper receives, and they are not bound by the Hazelwood standard of expression.
If students don’t distribute their paper on school grounds, a school is very limited in its ability to censor a privately produced student publication. If they do distribute on school grounds, a majority of the courts will apply the Tinker standard.
Administrators may also place reasonable restrictions on the time, place, and manner of its distribution. Courts have been divided on this issue, however, partly because there are differences of opinion when applying the public forum analysis, a legal method for determining to what extent someone should be protected by the First Amendment on government-owned property. Some courts have claimed that the hallways of schools are closed public forums, and therefore students’ rights to distribute material may be limited in reasonable, viewpoint-neutral ways. Others have been more receptive to the rights of students, so, as always, the interpretation of the law depends on the judge reviewing the case.
Do school publications have to accept advertisements that some may find offensive?
This debate was played out on a national stage in 2001, when activist David Horowitz submitted a controversial advertisement, “Ten Reasons Why Reparations for Slavery Is a Bad Idea,” to college newspapers across the country.
Although college newspaper editors are not bound by the same rules as middle or high school newspaper editors, the scenario raises an interesting question: Is it better, in the interest of free expression, to accept and run an ad that is likely to be found offensive by a significant part of the community, or to refuse to accept it?
The decisions of the college editors varied. In the April 1, 2001, edition of The Washington Post, several editors discussed the choices they made. Alexander Conant, the editor for the University of Wisconsin’s Badger Herald, ran the ad because, in his opinion, “A newspaper that refused the ad, or ran it followed by an apology, is censoring ideas and cannot possibly purport to be a forum for public discussion. Instead, it becomes a soapbox for only certain viewpoints.”
Conversely, Jennifer Schaum, the editor of the University of Virginia’s Cavalier Daily, refused to run the ad and said the decision was “just as easy” as Conant’s. “This doesn’t mean the Cavalier Daily is squelching unpopular viewpoints,” she said. On the contrary, “the paper is willing to print all views on reparations on the opinion page. That’s where opposing viewpoints should be expressed.”
The U.S. Supreme Court addressed some of these issues in one of the most significant First Amendment cases of the last 50 years, New York Times Co. v. Sullivan. In that 1964 case, an Alabama official sued The New York Times for libel in an editorial advertisement that had been placed in the paper by individuals and groups working on behalf of the civil rights movement. In its decision, the Court overturned the previous two judgments and ruled for the Times. As Justice Arthur Goldberg wrote in his concurring opinion, “if newspapers, publishing advertisements dealing with public issues . . . risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished.”
Based on Sullivan, professional newspaper editors have the legal protection necessary to run ads that some may find controversial as a way to safeguard free expression in the press. It is not at all clear that a high school newspaper can engage in viewpoint discrimination when accepting advertising, absent an extremely compelling reason.
In a 1997 case from the First Circuit, however, the full panel of the court ruled that a high school newspaper’s decision not to run a pro-abstinence ad from a member of the community did not violate the First Amendment. The court ruled there was no First Amendment violation because the rejection of the ad was a private decision by the student editors and the school was not involved.
The standards established by the Fraser and Hazelwood cases seem to give schools the right to reject offensive ads. In the Hazelwood decision, for example, the Court said a school can censor material that “associate[s] the school with any position other than neutrality on matters of political controversy.”
Based on that language, it would seem that a school newspaper could reject such advertisements. However, the application of the public forum doctrine might lead to a different result. If a public school paper rejected an ad based on viewpoint discrimination, for example, there could be a First Amendment problem. For more information on this and other issues relating to the student press, contact the Student Press Law Center or visit their Web site at www.splc.org.
Teacher and Administrator Rights and Responsibilities
Do school officials forfeit their First Amendment protections once they become public employees?
No. The U.S. Supreme Court has ruled that public school teachers, like other public employees, do not forfeit all constitutional protections when they take a government job. In its Tinker opinion the Court stated, “it can hardly be argued that either teachers or students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
For the early part of the 20th century, courts ruled that public employees had no right to object to conditions placed upon public employment. The courts subscribed to the view outlined by Oliver Wendell Holmes who, as a member of the Supreme Judicial Court of Massachusetts, wrote: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
The Court abandoned this view later in the 20th century with a series of decisions regarding loyalty oaths. Until 2006, courts examined public-employee free-speech cases under the balancing test created in the 1968 decision, Pickering v. Board of Education. The high court ruled that school district officials violated the First Amendment rights of high school science teacher Marvin Pickering when they fired him for writing a letter to the editor in his local paper criticizing the superintendent, the school board, and the board’s allocation of monies between academics and athletics. Justice Thurgood Marshall, writing for the court, noted that “the problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The Court first noted that Pickering’s letter referred to important matters of public concern in the community. Pointing out that Pickering should not lose the rights he possessed as a citizen simply because he worked as a public school teacher, the Court also minimized the board’s argument that the letter disrupted the efficient operation of the schools. Finally, the Justices concluded “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”
The primacy of the Pickering standard changed in 2006, when the Supreme Court announced a 5-4 decision in the case of Garcetti v. Ceballos. In Garcetti, David Hudson explains, “the Court created an additional hurdle for public employees who assert First Amendment claims. They now must show that they are speaking as citizens instead of in connection with their official job duties.”
In dissent, Justice David Souter warned that this change drew a “strange line” that could have a negative impact. Others feared that this new employer-friendly rule represented a dramatic shift from the traditional Pickering balancing and would work against outspoken public employees in free-speech cases – and thereby work against the public’s interest in good government, as well.
What types of laws protect teachers who believe they have been unfairly treated by a school board, school superintendent, or other school official?
Many types of laws provide some protection for teachers. Many states have teacher tenure laws that prohibit school officials from arbitrarily taking adverse employment actions. Many teachers are also protected by a contract between the local teachers union and the applicable school authorities. These contracts are called collective bargaining agreements, and they spell out the legal parameters of the employment relationship.
In addition, public school teachers have protections afforded by the U.S. Constitution. Both the Bill of Rights and the 14th Amendment protect individuals from unconstitutional infringements by governmental officials. School boards and school administrative officials qualify as such governmental actors.
The Due Process Clause of the 14th Amendment provides that teachers cannot be deprived of a “liberty” or “property” interest without notice and a hearing. The First Amendment also provides protection for teachers who speak out on matters of public concern, as long as they do so as citizens and not as a part of their official job duties.
Finally, state laws protect “whistleblower” employees who call attention to wrongdoing in their workplace. Additionally, some federal statutes applicable to schools, such as the Rehabilitation Act, protect employees from retaliation for calling attention to violations.
How do courts balance a teacher’s First Amendment rights against the interests of the public school system?
It depends on both the context and the particular court reviewing the claim. Prior to the Supreme Court’s 2006 ruling in Garcetti v. Ceballos, courts generally applied the line of public employee free-speech tests when evaluating a claim by a public school teacher. Under this test, a court first asked if the employee’s speech touched on a matter of public concern. If it did, the court would balance the teacher’s right to free expression against the school district’s interests in an efficient workplace. This general Pickering-Connick test applied to most teacher speech that occurs outside the classroom environment.
Since Garcetti, however, the key question has become whether or not the teacher was speaking as a private citizen or in conjunction with his official duties. If the answer is the latter, the teacher is not entitled to First Amendment protection. If, however, he is speaking as a private citizen, the court will then assume the Pickering line of analysis, and consider whether the speech touches on a matter of public concern.
In the first Circuit Court case to apply Garcetti in the public school setting, the Seventh Circuit upheld the decision of an Indiana U.S. district court that ruled a teacher’s free speech rights were not violated when she was prohibited from expressing her opinion of the war in Iraq during instructional time. The teacher alleged that her free-speech rights had been chilled by the school board’s recommendation that she not be rehired. But Chief Judge Easterbrook disagreed, noting that “the school system does not “regulate” teachers’ speech as much as it hires that speech.
Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary. A teacher hired to lead a social-studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one; a high-school teacher hired to explicate Moby Dick in a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.
Another recent example of this is the August 2007 ruling by the Eleventh Circuit in the case of D’Angelo v. School Board of Polk County, in which the court held that a principal was not entitled to First Amendment protection for advocating conversion of a public school to charter status. The court based its decision, per Garcetti, on the fact that the principal did not speak as a citizen in advocacy of the charter school, but rather in his capacity as a school administrator.
If a teacher’s speech involves the curriculum or occurs in the classroom, some courts apply the more deferential standard in Hazelwood. This standard asks whether there is a legitimate educational reason for the school board’s policy. In 2007, the Seventh Circuit dismissed the First Amendment claim of a probationary teacher who alleged her contract was not renewed because she expressed her political views in the classroom. “Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives,” the court wrote.
Similarly, a federal appeals court determined that the Hazelwood standard-where any form of censorship must be reasonably related to a legitimate educational reason-should also apply to a teacher’s in-class speech. That court ruled as follows:
We are convinced that if students’ expression in a school newspaper bears the imprimatur of the school, then a teacher’s expression in the “traditional classroom setting” also bears the imprimatur of the school. . . . Although the Pickering test accounts for the state’s interests as an employer, it does not address the significant interests of the state as educator.
Because of the Garcetti opinion, courts are likely to become more deferential to employer interests, especially public school officials. As a result, teachers should understand that the traditional First Amendment rights of academic freedom generally accorded to university professors are much more limited in public primary and secondary schools.
How do the courts determine whether a teacher’s speech touches on a matter of public concern?
The Supreme Court has established that speech touches on a matter of public concern when the public employee’s speech deals with matters of political, social, or other concerns to the community. Per Garcetti, however, such speech must be delivered as a private citizen, and not pursuant to one’s official duties as an employee.
As David Hudson writes on firstamendmentcenter.org, the Garcetti opinion has already affected the free-speech claims of public school teachers. It certainly “proved a stiff barrier to the First Amendment claims of school teacher Jillian Caruso, who alleged she was discharged from her elementary school teaching job in New York after she spoke in favor of President George W. Bush during the 2004 presidential election campaign. Caruso placed a picture of Bush in her classroom. She alleged that shortly thereafter school officials forced her to remove the picture and forced her to resign her teaching position.”
Caruso responded with a First Amendment lawsuit, which the school challenged by invoking Garcetti. In March 2007, a federal district court in Caruso v. Massapequa Union Free School District refused to dismiss the teacher’s First Amendment claim, finding there were unresolved factual issues. But the case proceeded to trial, where the jury ruled in the school’s favor.
Caruso’s attorney, Paul Dashefsky, said the Supreme Court’s decision in Garcetti presented a huge problem in the case. “It has had a dramatic negative effect of chilling the exercise of free speech even in the academic context like the Caruso case,” he said.
“I’m not surprised that Garcetti has such an effect,” said First Amendment expert Robert M. O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression. “We specifically warned in our amicus brief in the Garcetti case that its implications were potentially far-reaching. The central flaw in Garcetti is the failure to recognize that often great public interest lies in giving government employees broad latitude to speak in the areas of their expertise. In a sense Garcetti got it backwards.”
“One uncertainty,” Hudson explains, “is whether Garcetti will be applied with full force in academic settings.” Even the majority of the Court recognized “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” Whether academic freedom provides greater protection for university professors from the full reach of Garcetti remains an unsettled question.
Of course, the situation changes in K-12 settings, where attendance is compulsory and students are a “captive audience.” Indeed, this is why public schools are subjected to much greater First Amendment scrutiny. There is no question, however, that the Supreme Court’s decision has had a tangible impact on recent free-speech claims by public employees. “Many employees have been Garcettized,” said one attorney. “Garcetti is the kiss of death for many First Amendment cases.”
If a teacher is in part terminated for constitutionally protected speech, may a school board still avoid any constitutional violation?
Public employers, including school boards, do have the opportunity to make a so-called Mt. Healthy defense and claim they would have made the same decision to take adverse action against the employee, even if the employee had not engaged in any constitutionally protected speech.
The Supreme Court established this defense in the case of Mt. Healthy City School District Board v. Doyle. In Mt. Healthy, a teacher alleged he was fired in retaliation for calling a radio station about the adoption of a teacher dress code.
The school board admitted it had fired the teacher in part for his action in contacting the radio station about school board policy. However, the school board also cited several other instances of the teacher’s misconduct, including allegedly making an obscene gesture to two female students who would not obey his orders, insulting students with foul language, and arguing and engaging in physical contact with another teacher.
Lower courts determined that the teacher showed his constitutionally-protected conduct of contacting the radio station on a matter of public concern was a “substantial” or “motivating” factor in the decision to discharge him. On appeal, the U.S. Supreme Court agreed. However, the Justices determined that the lower court “should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.”
Thus, a court in a First Amendment retaliation case must ask two questions:
1. whether the employee’s First Amendment-protected activity was a substantial or motivating factor in the adverse employment action; and
2. whether the employer would have reached the same decision even if the employee had not engaged in the constitutionally protected conduct.
A recent case out of the Tenth Circuit sheds some light on how these sorts of issues may get resolved in the wake of the Supreme Court’s 2006 opinion in Garcetti. In the case, Casey v. West Las Vegas School District, a New Mexico superintendent was demoted and discharged for reporting her school board’s failure to comply with the state’s open meetings law. The superintendent, School Law News explains, “had no duty to cure or report violations of the state’s sunshine or open meetings law as part of her job but did so in an attempt to ensure that the public had notice and an opportunity to comment on matters before the board.”
The Tenth Circuit supported her First Amendment claim, writing: “When a public employee speaks as a citizen on matters of public concern to outside entities, despite the absence of any job-related reason to do so, the employer may not take retaliatory action.”
By contrast, the Tenth Circuit, also in 2007, ruled in favor of a school district that disciplined an administrator for writing a letter to the editor that was critical of the district. “By going outside internal channels and airing her concerns publicly,” the court wrote, the administrator “chose a method of expression which inherently had greater potential for disruption than other alternatives.”
Must a public school teacher salute the flag during a recitation of the Pledge of Allegiance?
Probably not. This answer stems from the landmark 1943 Supreme Court decision West Virginia State Board of Education v. Barnette, where the high court ruled that public school students had a First Amendment right not to salute the flag.
Even though the Barnette decision speaks directly about public school students, the same principles have been extended to teachers in subsequent decisions. In one case, a federal appeals court ruled that school officials violated the First Amendment rights of a public school arts teacher when they fired her for refusing to salute the flag. “We take guidance, instead,” they ruled, “from the Supreme Court’s instruction in Tinker, whose lesson is that neither students nor teachers ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ ” The court noted that the teacher did not “proselytize” her students but stood in respectful silence and that another teacher led the students in the pledge.
A teacher’s right not to salute the flag, however, may not extend to all other exercises related to the school. In a case from the Seventh Circuit, a Jehovah’s Witness kindergarten teacher was fired when she informed the principal she could not teach any part of the curriculum that involved patriotic activities. Although one of these activities included saluting the flag, the teacher felt she must also not engage in prescribed elements of the curriculum involving patriotism, in any secular or religious holiday, or in the celebration of student birthdays. As the court ruled, “[t]here is a compelling state interest in the choice and adherence to a suitable curriculum. . . . It cannot be left to individual teachers to teach what they please.”
May a teacher wear clothing not approved by a teacher dress code?
Probably not. The few published court decisions dealing with teacher dress codes have sided with school officials.
The 1970s case of Richard Brimley is instructive. Brimley, an English teacher in a Connecticut high school, challenged a reprimand he received for violating the teacher dress code by refusing to wear a necktie. The school board argued that its tie code supported its interest in maintaining a professional image for its teachers, and for engendering respect and discipline from the students. Brimley, through the teachers union, argued that his failure to wear a necktie implicated his First Amendment free expression rights in several ways, including (1) presenting himself as someone not tied to “establishment conformity”; and (2) showing his students that he rejected many of the values associated with the older generation.
A panel of three federal judges in the Second Circuit struck the balance in favor of Brimley, finding that the case implicated both a 14th Amendment liberty interest and a First Amendment free speech interest.
However, the full panel of the Second Circuit reversed in East Hartford Education Association v. Board of Education. “The very notion of public education implies substantial public control,” the full appeals court wrote. “Educational decisions must be made by someone; there is no reason to create a constitutional preference for the views of individual teachers over those of their employers.” The appeals court concluded: “If Mr. Brimley has any protected interest in his neckwear, it does not weigh very heavily on the constitutional scales.”
Other courts have reached similar results in teacher dress code cases. A federal court in Mississippi upheld the discharge of a teacher’s aide for refusing to abide by the dress code of the school. In the case of McGlothin v. Jackson School District, the aide asserted she had a constitutional right to wear berets to show her African American heritage and her religious beliefs. The school district countered that the berets were “inappropriate attire.” Ultimately, the court sided with the school board, finding that the teacher failed to communicate to school district officials that she had a religious basis for her conduct. However, the court noted the “[d]istrict is required, under the First Amendment and Title VII, to make some accommodation for the practice of religious beliefs when it pursues an end which incidentally burdens religious practices.”
Other courts have rejected claims that state statutes restricting teachers from wearing religious clothing are unconstitutional. In United States v. Board of Education, the Third Circuit rejected a Title VII religious discrimination claim against a school board for prohibiting a Muslim substitute teacher from wearing her religious clothing.
The case originated with a Pennsylvania statute, called the “Garb Statute,” which provided that “no teacher in any public school shall wear . . . or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.” In its ruling, the Third Circuit determined it would impose an “undue hardship” on the school to require it to accommodate the Muslim teacher’s request to wear her religious clothing. Such an accommodation, according to the court, would represent a “significant threat to the maintenance of religious neutrality in the public school system.”
Similarly, the Oregon Supreme Court rejected a free exercise challenge- under both the First Amendment and a provision of the state constitution-to an Oregon statute prohibiting teachers from wearing religious clothing. The teacher, who was an adherent to the Sikh religion, argued against the constitutionality of a state law that provided: “No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.”
The Oregon high court upheld the statute by explaining that “the aim of maintaining the religious neutrality of the public schools furthers a constitutional obligation beyond an ordinary policy preference for the legislature.”
It should be noted that although these decisions permit states and school districts to restrict the wearing of religious garb, they do not require such restrictions. Two states, Arkansas and Tennessee, have statutes explicitly allowing teachers to wear religious garb in public schools. In states without such laws, the vast majority of state courts have held that public schools may allow teachers to wear religious clothing.
May teachers wear religious jewelry in the classroom?
Most experts agree that teachers are permitted to wear unobtrusive jewelry, such as a cross or a Star of David. They should not wear clothing with a proselytizing message (e.g., a “Jesus Saves” T-shirt).
Is a teacher’s classroom a public forum?
According to many courts, a teacher’s classroom is not a public forum.
In 1996, for example, a high school English teacher in Pennsylvania asserted that school classrooms were designated public forums and that she had a constitutional right to post certain types of literature, symbols, and paraphernalia in her classroom.
A federal district court rejected her claim in the case of Murray v. Pittsburgh Board of Public Education. The court noted that the teacher failed “to direct the court to a single case in which a public high school classroom was determined to be a designated open public forum,” and added:
This is not surprising as it is simply not the law. A public high school classroom is a nonpublic forum. As such, a school may restrict the use of its classrooms to serve the school’s intended educational purposes as long as the restrictions are reasonable and are not an effort to suppress a teacher’s expression merely because the school opposes his particular views.
In another case, a federal court in Virginia implied that school officials could create a designated public forum on teachers’ classroom doors by allowing speech about certain topics. However, the court in that case also ruled that the school principal could prohibit a teacher from posting a pamphlet advertising banned books on his classroom door. “It would be ludicrous to insist that teachers could post anything they want on their doorways,” the judge wrote.
May a teacher be punished for teaching subjects school officials or parents deem unsuitable?
Probably. Teachers must remember that most courts consistently rule teachers do not have a First Amendment right to trump the curriculum mandated by the school board. Furthermore, some courts take a narrow view of what constitutes “communicative conduct” that implicates the First Amendment.
For example, the Sixth Circuit ruled in 1987 that school officials did not violate the First Amendment rights of a teacher when they fired her for showing the R-rated movie “Pink Floyd-The Wall” in her classroom. Even though the Supreme Court has determined since the 1950s that movies are a form of expression protected by the First Amendment, the Sixth Circuit determined that the teacher’s conduct in showing the R-rated movie was not “expressive or communicative, under the circumstances presented.”
The same Sixth Circuit, in 2001, reinstated a former elementary school teacher who claimed she was fired for inviting actor Woody Harrelson to come speak to her class about the environmental benefits of hemp. A lower court dismissed her suit, ruling that the teacher’s choice of classroom speaker “was neither expressive nor intended to convey a particularized message.” On appeal, the Sixth Circuit reversed, finding that a teacher’s choice of an in-class speaker was a form of expression entitled to at least some First Amendment protection.
May a teacher refuse to teach certain materials in class if she feels the curriculum infringes on her personal beliefs?
Generally, teachers must instruct their students in accordance with the established curriculum. The Ninth Circuit ruled in 1994 against a high school biology teacher who challenged his school district’s requirement that he teach evolution, as well as its order barring him from discussing his religious beliefs with students. In the words of the court, “[a] school district’s restriction on [a] teacher’s right of free speech in prohibiting [the] teacher from talking with students about religion during the school day, including times when he was not actually teaching class, [is] justified by the school district’s interest in avoiding [an] Establishment Clause violation.”
In 2001, a state appeals court ruled again that a high school teacher did not have a First Amendment right to refuse to teach evolution in a high school biology class. The teacher had argued that the school district had reassigned him to another school and another course because it wanted to silence his criticism of evolution as a viable scientific theory. The state appeals court rejected that argument, pointing out that the teacher could not override the established curriculum.
Other courts have similarly found that teachers do not have a First Amendment right to trump school district decisions regarding the curriculum. One court wrote: “the First Amendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.” And in 1998, the Fourth Circuit ruled that a teacher had “no First Amendment right to insist on the makeup of the curriculum.”
May a teacher censor a student’s artistic expression?
Teachers possess a great deal of control over classroom assignments and other matters related to teaching the curriculum. In the context of an assigned art project, teachers have the right to make sure that students are meeting the requirements of their assigned work. In art class, this may mean that a student’s work receives poor marks if it fails to meet the standards and requirements of the assignment.
One federal appeals court rejected a student’s First Amendment claim in the context of a research topic. The court wrote: “[F]ederal courts should exercise particular restraint in classroom conflicts between student and teacher over matters falling within the ordinary authority over curriculum and course content.” And in 2007, the Eleventh Circuit ruled that a high school student merited no First Amendment protection for an essay in which she dreamed about killing her math teacher.
The student told administrators her work was no more than “creative fiction,” but she was still given a 10-day suspension and recommended for expulsion (the school board only upheld the suspension). She and her parents sued, claiming a violation of her First Amendment rights. A federal district judge in Alabama ruled against the student, and on July 31, 2007, a three-judge panel of the Eleventh Circuit unanimously agreed. “We can only imagine what would have happened if the school officials, after learning of [the student’s] writing, did nothing about it and the next day [she] did in fact come to school with a gun and kill her math teacher,” read the court’s opinion. “In our view, it is imperative that school officials have the discretion and authority to deal with incidents like the one they faced in this case.”
These decisions do not suggest a teacher may mark a student down simply because the teacher disagrees with the message the work intends to convey, especially if other aspects of the work meet the requirements of the assignment.
Teachers are sometimes unsure about whether they may allow students to include religious images or ideas in their assignments. Generally, students may express their beliefs about religion if such expression is relevant to the subject under consideration and meets the requirements of the assignment. To censor such forms of expression may violate a student’s free exercise rights.
If a student’s artistic expression is not part of her schoolwork, then the work should be examined by the tests set out in the Tinker and Fraser standards. Under Fraser, if it is vulgar, profane, or obscene, then a teacher has the authority to remove the work or restrict its presence on school grounds. If the expression does not violate those restrictions, then the school, under Tinker, must prove they have evidence that the expressive work will substantially interfere with the working of the school or will interfere with the rights of others.
May teachers and administrators pray or otherwise express their faith while at school?
As employees of the government, public school teachers and administrators are subject to the Establishment Clause and thus required to be neutral concerning religion while carrying out their duties. That means school officials do not have the right to pray with or in the presence of students during the school day.
Of course, teachers and administrators-like students-bring their faith with them through the schoolhouse door each morning. Because of the First Amendment’s limitation on what government (and, by extension, public employees) may or may not do, school officials who wish to pray or engage in other religious activities-unless they are silent-should do so outside the presence of students.
If a group of teachers wishes to meet for prayer or scriptural study in the faculty lounge during free time in the school day, most legal experts see no constitutional reason why they should not be permitted to do so, as long as the activity is outside the presence of students and does not interfere with their duties or the rights of other teachers.
As noted in an earlier question, teachers are permitted to wear unobtrusive jewelry, such as a cross or the Star of David. But teachers should not wear clothing with a proselytizing message (e.g., a “Jesus Saves” T-shirt).
When not on duty, of course, educators are free like all other citizens to practice their faith. But school officials must refrain from using their position in the public school to promote personal religious activities.
How should teachers respond if students ask them about their religious beliefs?
Some teachers prefer not to answer the question, believing it is inappropriate for a teacher to inject personal beliefs into the classroom. Other teachers may choose to answer the question directly and succinctly in the interest of an open and honest classroom environment.
Before answering the question, teachers should consider the age of the students. Middle and high school students may be able to distinguish between a personal conviction and the official position of the school; very young children may not. In any case, the teacher may answer at most with a brief statement of personal belief-but may not turn the question into an opportunity to proselytize for or against religion. Teachers may neither reward nor punish students because they agree or disagree with the religious views of the teacher.
Book Selection and Other Decisions About the Curriculum
Do students have a First Amendment right to receive information in books?
Yes, the First Amendment protects the right to receive information and ideas. In 1982, the U.S. Supreme Court determined in Board of Education, Island Trees v. Pico that “the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.”
In the Pico case, the school district argued that decisions by school officials about library books did not raise a First Amendment issue, and that they should have carte blanche to remove a library book for any reason. The Court disagreed, ruling that school officials had violated the First Amendment when they removed library books simply because they disagreed with the ideas and information contained therein.
This principle was reaffirmed in 2003, when a federal district court ruled that a school district’s attempt to restrict access to J. K. Rowling’s Harry Potter books in school libraries violated its students’ First Amendment free speech rights.
In finding for the parents who challenged the board’s decision, the court found that the board’s fears of disobedience were purely speculative and insufficient to justify restricting students’ choices in a public library. The court also rejected the board’s concern that the fictional books promote “witchcraft,” holding that, “[r]egardless of the personal distaste with which these individuals regard ‘witchcraft,’ it is not properly within their power and authority as members of defendant’s school board to prevent the students at Cedarville from reading about it.”
It is important to note that the Court’s Pico decision applies only to the removal of books from library shelves, and not to either the acquisition of books or to matters related to the curriculum. In those circumstances, school officials have more leeway when selecting books for a school reading list than in removing books from library shelves.
May school officials remove library books for reasons other than objections to the ideas contained in the books?
Yes. According to the Supreme Court in Pico, although school officials may not remove books simply because they disagree with the ideas expressed therein, they can remove books from the library if they deem them to be “pervasively vulgar” or educationally unsuitable.
The issue centers on the motivation of school officials. In Louisiana, for example, the book Voodoo & Hoodoo was removed after a parent complained that it caused children to become infatuated with the supernatural. The school board eventually voted 12 to 2 to remove the book, even though a school-level committee had voted unanimously to retain it. In response, one parent sued on behalf of her child, claiming the book’s removal violated the First Amendment. A federal trial court ruled in favor of the parent. On appeal, however, the Fifth Circuit reversed, finding there were genuine factual disputes as to the school board’s motivation for removing the book.
The appeals court, in ruling there would need to be further fact finding in the lower court to determine the true motivation for the removal of the book, wrote: “Further development of the record is necessary to determine whether the School Board exercised its discretion over educational matters in a manner that comports with the First Amendment.”
Do school officials possess greater authority in removing books from the curriculum than in the school library?
Yes. School officials possess greater authority to regulate matters pertaining to the curriculum, and they remain on surer legal footing when the restricted texts are kept available in the school library. Using the Hazelwood standard of student expression, several lower courts have determined that school officials can remove books from the curriculum as long as they have a reasonable educational basis for doing so.
For example, one federal appeals court determined that school officials could remove a humanities textbook because two selections in the book, Aristophanes’ Lysistrata and Geoffrey Chaucer’s The Miller’s Tale, were deemed too sexually explicit and vulgar. A group of students and parents protested, pointing out that the two challenged pieces were “acclaimed masterpieces of Western literature.” The court acknowledged this, but determined that the school board’s actions were, under Hazelwood, reasonably related “to its legitimate concerns regarding the appropriateness (for this high school audience) of the sexuality and vulgarity in these works.”
Is it constitutional for public schools to post “In God We Trust” in classrooms?
The courts have not directly answered this question about the use of the national motto in public schools. Now that several states have passed laws requiring public schools to post “In God We Trust” in classrooms, we are likely to see legal challenges to the practice.
Some Supreme Court observers argue that the Court is unlikely to strike down posting “In God We Trust” in classrooms. They point out that in several past cases involving school prayer and holiday displays, the justices have sometimes described references to God in the Pledge of Allegiance and the national motto as mere “ceremonial deism” that do not rise to the level of government establishment of religion.
Others contend that the courts are generally stricter when applying the Establishment Clause in public schools because impressionable young people at school are a “captive audience.” It’s possible, therefore, that a judge might view posting “In God We Trust” in public schools as state endorsement of religion, especially if it could be shown that the primary purpose of the posting is to promote religion.
In light of previous Supreme Court cases involving holiday displays, a display of the national motto placed in historical context (e.g., a history of how the motto came to be adopted, or discussion of E Pluribus Unum, our other national motto) might be more likely to be upheld as constitutional. Some schools in states that require the posting of the motto have decided to create an educational display about the history and meaning of both national mottos. In this way, the display serves an academic purpose and is less likely to be perceived as school endorsement of religion.