Constitution Daily

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Public school student free speech: A primer

March 16, 2018 by Scott Bomboy


Organized protests this week at public secondary and high schools related to the Parkland shooting have raised several constitutional issues about student actions at schools. So how are group protests by students limited under the Constitution?

The courts have long said that public school officials can regulate or ban student protests they view as disruptive. But not all protest actions can be considered as disruptive by schools, especially individual efforts that are passive in nature and express “pure speech.”

Certainly, student protests and objections at public high schools aren’t a new Constitutional issue. One of the earliest student First Amendment controversies goes back to the World War II era, while another is rooted in the Vietnam War. And in general, college-age students at public educational institutions enjoy more constitutional First Amendment protections than public high school students when protesting issues or making First Amendment claims. (Most students at privately funded schools don’t fall under a class of people who have First Amendment rights related to public forums at school.)

This distinction between public high school and college students comes from a 1969 Supreme Court decision, Tinker v. Des Moines Independent Community School District. Mary Beth Tinker, a 13-year-old student at Warren Harding Junior High School in Des Moines, Iowa, wore a black armband to school to protest the Vietnam War and was suspended. A few other students joined her. Tinker won her case at the Supreme Court.

In the 7-2 majority opinion, Justice Abe Fortas said public school students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” While Fortas said these rights don’t extend to conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” Tinker’s silent protest was permitted. “Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’ The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners,” which Fortas said was unconstitutional.

The Tinker decision cited an earlier Court decision from 1943, West Virginia v. Barnette, which allowed public school students to decline pledging allegiance to the American flag on religious grounds. Justice Robert Jackson said that school officials had important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights.”

The limited First Amendment rights of public school students were made clearer by later court decisions about student dress codes, student language, and school newspapers. In 1988, the Court said in Hazelwood v. Kuhlmeier that public high school officials could censor a student newspaper if needed. Justice Byron White said that “a school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”

Public school students also can’t use vulgar language as part of a school activity and make a First Amendment protection claim. The Court said in 1986 in Bethel School District v. Fraser that a public high school student who used sexually explicit language in a student-election speech at an assembly wasn’t protected by the First Amendment. “Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school,” said Chief Justice Warren Burger.

Dress codes at public schools can also be enforced by school officials to a great extent, but not without controversy. Dress code opponents believe the right granted to Mary Beth Tinker to wear an armband also covers messages on T-shirts and other forms of dress. Dress code supporters say Tinker’s ruling allows school officials to prevent “substantial disorder." They also cite another passage from Justice Fortas in Tinker: “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.  It does not concern aggressive, disruptive action or even group demonstrations,’’ Fortas said.

But public schools don’t have broad powers to ban student clothes that have religious meaning. And an evolving area of the law is the right of public high school students to publicly criticize school officials on social media outside of school. The Supreme Court has yet to consider a case on that subject.

Students who attend public universities and colleges face a much-different environment. As adults, they don’t face the restrictions imposed on public high school students under Tinker.  The Supreme Court has said public higher education institutions can’t block disruptive groups of students from organizing on campus. But also as adult students, they face the same protest rights and limits imposed on anyone who has access to a public forum on public school property.

A current higher education controversy is the debate over an institution’s ability to ban offensive language on campus as hate speech. This often includes outside groups and speakers who want to appear on campus, even if their messages are seen as offensive by students and college officials. Speech on a public college campus can’t be “directed at inciting or producing imminent lawless action,” which is a very narrow standard to prove under another landmark Supreme Court decision, Brandenburg v. Ohio. In other words, actions taken by a speaker must cause an immediate riot to be regulated. However, colleges can’t bar speakers because they disagree with their viewpoint, even if that viewpoint represents unpopular or offensive language.

For the high school students who took part in National School Walkout Day protests without the consent of their schools, there are various opinions about how the school can discipline students. It’s clear under Tinker and other decisions schools have that legal right. But if the students were given penalties that exceeded regular penalties for absences, there could be ramifications. University of Florida First Amendment scholar Clay Calvert wrote recently that “school officials who punish students for walking out of class today have the right to do so as long as they are enforcing regular attendance policies in a consistent manner.”

If the punishments exceed normal standards, the First Amendment might come back into play. The American Civil Liberties Union is asking for students to report instances of excessive punishment, claiming that “these forms of punishment far exceed those permitted by statute and are constitutionally suspect.”

Scott Bomboy is the editor in chief of the National Constitution Center.


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