First Amendment spirit fighting to survive in schools

Tuesday, April 21, 1998

Public school students are losing their First Amendment rights in school today, despite the U.S. Supreme Court's declaration nearly 30 years ago that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.”

School officials too often prohibit students from advocating ideas that the officials dislike or misconstrue student expression as disruptive when it's not.

Administrators have targeted rosary beads and necklaces said to be gang symbols, T-shirts bearing the names of rock bands, even clothing emblazoned with the “wrong” soft-drink logo.

These recent examples from Florida, Texas, Michigan and Georgia seem to indicate that school officials nationwide have forgotten the central message of Tinker v. Des Moines Iowa School District, the seminal case concerning student expression.

Or have they?

In Tinker, the U.S. Supreme Court ruled that school officials had violated the First Amendment rights of students who were suspended for wearing black armbands to school in protest of the U.S. involvement in Vietnam.

The Court stated that “the record does not demonstrate any facts which might reasonably have led 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.”

This statement led to establishment of the Tinker standard, which says that school officials may not censor student expression unless it creates a substantial disruption or material interference with school activities.

The Court also made several broad statements in Tinker, among them:

  • Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact.
  • In our system, state-operated schools may not be enclaves of totalitarianism.
  • School officials do not possess absolute authority over their students.

And, of course, the Court also made its oft-cited observation that students don't shed their free-speech rights at “the schoolhouse gate.”

These broad statements—and the positive outcome for the students involved in that case—caused many First Amendment advocates to enshrine Tinker as the Magna Carta of students' rights. Kevin O'Shea, publisher of First Amendment Rights in Education, writes that the “Tinker opinion revolutionized free speech in public schools.” Legal commentator Stuart L. Leviton agrees, writing in the Florida State Law Review that “Tinker's elaboration on and justification of protecting students' constitutional freedoms was powerful.”

This, then, was the context within which a more conservative Court subsequently reined in student expression in Bethel School Dist. No. 403 v. Fraser and Hazelwood School Dist. v. Kuhlmeier.

In Fraser, the Supreme Court ruled that school officials had not violated the First Amendment rights of a student by suspending him for three days after he delivered a nominating speech laced with sexual metaphors before a student assembly. Similarly in Hazelwood, the Supreme Court ruled that school officials can censor school-sponsored student expression if they have a legitimate educational reason for doing so.

These are the cases often cited by those who seek to enforce restrictions on student expression.

However, some school officials and courts take a simpler approach, attempting to limit the Tinker decision only to those cases involving political speech. Obviously the black armbands in Tinker had political significance, involving what the Supreme Court called “direct, primary First Amendment rights to 'pure speech.'” In fact, the Court itself wrote in Tinker that “the problem posed by the present case does not relate to the length of skirts or the type of clothing, to hair style or deportment.”

The Court also pointed out that “it is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance.” The Supreme Court ruled that a school could not prohibit “the expression of one particular opinion” without evidence of substantial disruption.

This approach has some validity, O'Shea said. “Tinker is a case primarily about political speech and has limited application to nonpolitical expression. There is a broad consensus among the federal courts, for instance, that school officials have the right to restrict vulgar speech.”

But the line sometimes blurs. What standard should apply, for instance, when a student wears a T-shirt expressing a political idea in a vulgar fashion? O'Shea says that “a line must be drawn between vulgarity intended to express an idea and vulgarity for vulgarity's sake.”

Leviton argues that Tinker should apply to more than political speech. “It is a reality of constitutional law that the First Amendment applies to more than just political speech. Students should be allowed to express themselves in schools. School administrators should permit student expression to understand what's going on in students' minds,” he said.

Leviton and others argue that, even if Tinker itself related only to political speech, the importance of Tinker is that it respects students' rights to hold their own views. Leviton writes that the courts have encouraged a “silencing movement” by granting too much deference to school officials in the area of students' free expression rights.

Today, educators have too much discretion to silence student expression. The fact that contemporary students no longer protest the Vietnam War does not mean their messages lack social significance.

No student should be punished for wearing a Cuban necklace or rosary beads to class. No student should be suspended for wearing a T-shirt bearing the name of a rock band, or for wearing a Pepsi shirt on Coke Day.

It's important that educators and courts hearken to the spirit as well as the letter of Tinker. They must ensure that students do not lose their freedom of expression at the schoolhouse gate.