Have today’s students surrendered their rights at schoolhouse gates?

Thursday, February 25, 1999

Students from 36 law schools across the country intend to spend this weekend proving former U.S. Supreme Court Justice Abe Fortas wrong.

Thirty years ago, Fortas proclaimed in Tinker v. Des Moines Community School District that students and teachers did not shed their First Amendment freedoms at the schoolhouse gate. This point, he wrote, “can hardly be argued.”

The law students descending on Nashville, Tenn., this weekend beg to differ. They will be participating in the Ninth Annual National First Amendment Moot Court Competition, which is co-sponsored by the Vanderbilt University School of Law and the First Amendment Center. The hypothetical case at issue concerns the First Amendment rights of a high school student who incorporates a Confederate flag into a Web page designed in her computer class. The competitors undoubtedly will argue passionately about whether the First Amendment prohibits the school from deleting the Web page, suspending the student from the class and withholding her credit for the course.

Fortas can thank his successors on the high court for creating the uncertainty that now surrounds the First Amendment freedoms of students. In 1986, in Bethel School District v. Fraser, the court held that the freedom of expression allowed the armband-wearing students in Tinker did not extend to a student who used sexual innuendo during a school assembly. Two years later, in Hazelwood School District v. Kuhlmeier, the court restricted student rights even further, ruling that school officials could censor student newspapers, even if the articles removed were accurate and tasteful, as long as officials have a legitimate educational reason for doing so.

No one, of course, claims that students, while in school, have the First Amendment right to speak whenever they wish or on whatever topic strikes them. The issue becomes murky, however, when courts attempt to define when and how school administrators can restrict student expression.

In Tinker, the court held that students’ expressions of opinion could not be regulated merely because school officials wanted to avoid “discomfort and unpleasantness.” Instead, school officials desiring to censor speech were required to show that the expression would “materially and substantially interfere” with school discipline.

In Bethel School District, however, the court carved out an exception to the rule stated in Tinker. When a student’s speech was lewd or indecent, the court said, school administrators did not need to demonstrate material and substantial interference with discipline. Rather, administrators could enforce rules designed to teach students “the boundaries of socially appropriate behavior.”

The court in Hazelwood again redefined the Tinker analysis. The material and substantial interference test in Tinker, the court wrote, applied only in those cases in which schools were asked to “tolerate” independent student expression. When the student speech was part of a school-sponsored activity, however, the school could restrict that expression in any way “reasonably related to legitimate pedagogical concerns.”

Before Hazelwood, the legal test was whether the student’s speech would disrupt school discipline. This exacting standard precluded school officials from censoring expression merely because it was unpleasant or unpopular. Hazelwood, however, changed the standard dramatically. The question no longer focused on the speech itself but on its context — did it occur in a student newspaper, the school play or the yearbook? Could students, parents and the public reasonably perceive that the expression might, as the court in Hazelwood said, “bear the imprimatur of the school”?

Unfortunately, these issues are more than moot court problems. Many lower court cases decided since Hazelwood suggest that almost any speech that occurs on school property can be viewed as bearing the imprimatur of the school. Judges also defer significantly to school administrators on discipline and related matters. These school officials, wary of gang influence and susceptible to enormous political pressure from conservative parent groups, usually act quickly to squelch controversial student speech. Students who dare to express unpopular views therefore risk severe discipline, including long suspensions and expulsion. A sad irony in First Amendment law is that the textbook example of the “chilling effect” so often feared by free-speech advocates is the zero-tolerance atmosphere enveloping our schools.

As this year’s moot court problem demonstrates, the Internet raises new issues concerning student freedoms. Does a school “sponsor” a student’s speech if it merely provides the on-ramp to the information superhighway? Does a school lose its ability to restrict speech when it takes its students to cyberspace, which is the truest public forum created to date? Does a student’s Web page, produced at home, become subject to school regulation if it discusses school officials or if it is accessible to students online at school?

These issues, and probably many more, will be debated all weekend by some of the brightest law students in the country. While the results in Nashville won’t change the law or end the debate, everyone involved in the competition will learn something about the First Amendment in general and about student rights in particular. And, even if they learn nothing else, they’ll learn how much things can change in 30 years.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.