How free is student speech?

Thursday, May 7, 2009

Perhaps no area of First Amendment law contains so many unresolved questions as that involving the free-speech rights of K-12 public school students. Forty years ago, the U.S. Supreme Court declared in Tinker v. Des Moines Independent Community School Dist. (1969) that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the Supreme Court has carved out exceptions to Tinker and the lower courts have applied those exceptions differently to create a labyrinthine area of law.

In his concurring opinion in the Bong Hits 4 Jesus case, Morse v. Frederick (2007), Justice Clarence Thomas — who called for Tinker to be overturned — expressed some frustration at the current state of student-speech law: “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't — a standard continuously developed through litigation against local schools and their administrators.”

The reality is that when lower courts evaluate First Amendment challenges involving topics such as student online speech created off campus, censorship of message T-shirts, school dress codes, removal of books from school libraries and others, the results are far from predictable. Here are a few of these unanswered questions.

Off-campus/on-campus distinction
In the age of the Internet, when many student free-expression disputes involve content created off campus and displayed on MySpace, Facebook or a student’s home page, school administrators often face a difficult task of determining where their jurisdiction begins and ends. If a student creates online expression that school officials don’t like, they initially must ask themselves whether the speech is a matter of school discipline or simply parental discipline. If the expression constitutes a true threat, is it a matter for school officials or for law enforcement? In Thomas v. Board of Education (1979) — an older decision involving the censorship of an underground student newspaper — the 2nd U.S. Circuit Court of Appeals noted that that “the arm of [school] authority does not reach beyond the schoolhouse gate.”

Chief Justice John G. Roberts Jr. admitted in his majority opinion in Morse v. Frederick that “[t]here is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents.” The Bong Hits 4 Jesus case, for example, involved the punishment of an 18-year-old student standing on a public street across from his high school. The student, Joseph Frederick, hadn’t set foot on campus that day before displaying his infamous 14-foot “Bong Hits 4 Jesus” banner. However, the Court found little difficulty in concluding that school-speech precedents apply to such a “school-sanctioned” event. Difficulties do arise when you have student expression that is more divorced from school grounds. In many student online speech cases, the students create the material off school grounds using their personal computers or other electronic devices. If a student creates online speech off school grounds and does not actively distribute the material on school grounds, there is at least an argument that school officials lack jurisdiction unless they can show that the material has a substantial impact at school. The Pennsylvania Supreme Court in J.S. v. Bethlehem Area School District (2002) noted that the “advent of the Internet has complicated analysis of restrictions on speech.”

Compounding this difficulty is that even if school officials have jurisdiction, there is no uniformity as to what legal standard applies to student expression created off campus that has some effect on campus. Many courts evaluating student Internet speech cases apply the Tinker standard of substantial disruption — that school officials must show a reasonable forecast of substantial disruption before censoring student speech. Other courts apply the standard from a later U.S. Supreme Court decision, Bethel School District v. Fraser (1986) in which the Court determined that school officials can prohibit student speech that is vulgar, lewd or plainly offensive. If student online speech contains profane words about a school official, should a court apply the “substantial disruption” standard from Tinker or the more school-friendly standard from Fraser?

Uncertainly over Tinker's 'substantial disruption' standard
Speaking of Tinker, many agree that the Court’s 40-year-old decision involving black armbands represents the seminal student free-speech case and the high-water mark of student First Amendment rights. After those relatively easy assessments, however, agreement wanes considerably.

The famous case involved several students from Iowa who were punished for wearing black peace armbands to school to protest U.S. involvement in the Vietnam War and to express support for a proposed Christmas truce. Justice Abe Fortas articulated what has been called the Tinkerstandard:

“When [a student] is 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. But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior —- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

This passage forms the basis for what has come to be known as the “substantial disruption” standard — that school officials can punish student speech if it constitutes a substantial disruption or material interference with school activities. Questions abound as to the “substantial disruption” test. When does a disruption become substantial? Do school officials have to wait for a substantial disruption? What if the disruption is caused by an opponent of the student expressing himself — does that student get to impose a heckler’s veto on the student speaker? 7th Circuit Judge Richard Posner asked some of these questions in Nuxoll v. Indian Prairie School District (2008) when he wrote: “But what is “substantial disruption”? Must it amount to “disorder or disturbance”? Must classwork be disrupted and if so how severely?”

Many lower courts have deferred to school administrators as to when a disruption becomes substantial. But note that in Tinker the majority did not find a substantial disruption, while Justice Hugo Black in dissent pointed out that a math teacher’s class was interrupted or disrupted as a result of the black armbands. Many lower courts also do not require school officials to wait for an actual disruption. Those few courts that analyze the Supreme Court case law closely seize upon another sentence of Fortas’ opinion, in which he wrote: “As we have discussed, 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 passage from Tinker indicates that a school official need only “reasonably forecast” a substantial disruption, not wait for one to occur. But that begs the question of what exactly is required to reasonably forecast a disruption. Can school officials cite any violence or tension in the school even if it is not directly related to the suppression of particular student expression, such as a Confederate flag T-shirt? 6th Circuit Judge Danny Boggs expressed this point in a dissent for a denial of en banc review in Barr v. Lafon (2009) when he wrote: “Though a confrontation short of a violent altercation could amount to a disruption within the meaning of Tinker, not every disagreement or incident of name-calling will support the suppression of speech.”

The heckler’s-veto problem arises with applications of the Tinker standard as well. Judge Boggs identified one of the “seeds … of difficulties” of Tinker as “the extent to which the (substantial disruption) policy would sanction a ‘heckler's veto, in the sense that it appeared to make no distinction as to whether the forecast disruption was by supporters or opponents of the symbols.” Intelligent students who oppose certain student expression — to bring about the silencing of that speech by school administrators — could cause a disruption and thereby impose a heckler’s veto on others’ speech.

Invading the rights of others
When most people speak of the Tinker standard, they focus on the substantial disruption/ reasonable forecast of substantial disruption language. For most courts that is the Tinker standard. But the language of Fortas’ famous opinion also speaks of student speech “colliding with the rights of others” and as “an invasion of the rights of others.”

The question becomes, when does a student’s speech invade the rights of other students? The issue arose in Harper v. Poway Unified School District (2006) when student Tyler Harper wore T-shirts with anti-gay messages such as “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” and “HOMOSEXUALITY IS SHAMEFUL.” He wore these message shirts as an expression of his sincere religious beliefs.

However, the 9th Circuit panel majority in an opinion by Judge Stephen Reinhardt determined that the school could prohibit Harper from wearing such shirts because they invaded the rights of gay and lesbian students. “Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn,” he wrote.

In dissent Judge Alex Kozinski questioned the majority’s application of the “invasion of the rights” part of Tinker. “The ‘rights of others’ language in Tinker can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with the First Amendment is well established,” he wrote. “Surely, this language is not meant to give state legislatures the power to define the First Amendment rights of students out of existence by giving others the right not to hear that speech. Otherwise, a state legislature could effectively overrule Tinker by granting students an affirmative right not to be offended.”

Other courts that have addressed student T-shirts with anti-gay messages have not applied the “rights of others” prong of Tinker. Instead, these courts have applied the “substantial disruption” prong. In Chambers v. Babbitt (2001), a federal judge in Minnesota sided with a student who wore a T-shirt bearing the message “STRAIGHT PRIDE” by applying the “substantial disruption” test of Tinker. The judge added that “[m]aintaining a school community of tolerance includes the tolerance of such viewpoints as expressed by ‘Straight Pride.’”

In Nuxoll v. Indian Praire School District, a three-judge panel of the 7th Circuit determined that school officials could not prohibit students from wearing T-shirts with the message “Be Happy, not Gay.” In his opinion for the panel, Judge Posner wrote that “people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life.”

Obviously, the lower courts are divided on the “right of others” prong of Tinker and uncertainty abounds.

Fraser questions
Tinker is not the only student-speech precedent that creates questions for student-speech advocates and school administrators. Questions arise as to the potential application of the Supreme Court’s 1986 decision Bethel School District v. Fraser. In Fraser, the Court ruled that school officials did not violate the First Amendment when they suspended student Matthew Fraser for giving a sexually laced speech before a captive audience of about 600 students – some of whom were freshmen.

The Court wrote that public school officials can prohibit student speech that is vulgar, lewd or plainly offensive. “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” Chief Justice Warren Burger wrote for the Court. Clearly, Fraser gave public school officials the power to silence students’ sexual speech and profanity. But, many lower courts interpreted Fraser to give public school officials the power to silence student speech that was merely offensive.

Chief Justice Roberts noted the uncertainty of the Fraser decision in his opinion in Bong Hits 4 Jesus, writing that “the mode of analysis employed in Fraser is not entirely clear.” Another time he uses the phrase, “whatever analysis Fraser applied.”

Roberts accurately identified uncertainty over the Fraser standard. The 11th Circuit used the Fraser standard in Denno v. School Board of Volusia County (2000) to justify school bans on the Confederate flag. The 6th Circuit in Boroff v. Van Wert City Board of Education (2000) used the standard to prohibit a student from wearing a Marilyn Manson T-shirt with an offensive religious message.

Roberts questioned reading the Fraser standard broadly to apply to “plainly offensive” speech when he 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, much political and religious speech might be perceived as offensive to some.”

However, we still do not know whether lower courts will adhere to Roberts’ warning about plainly offensive speech or whether they will consider it a mere dictum — a statement in a judicial opinion that is not viewed as controlling.

Other questions about Fraser concern its application to pure student-initiated speech and whether it applies to any student speech that is vulgar or lewd. Recall that Fraser applied to a student speech given before a school assembly. A few courts have determined that Fraser applies only to some form of school-sponsored student speech. For example, a federal district court in Oklahoma in D.G. v. Independent School District (2000) wrote: “Fraser and similar cases have created a category of exceptions to the general rule that deal with ‘school-sponsored speech’ such as speeches at a school assembly or articles in a school newspaper.”

Courts also differ on whether the Fraser standard can apply to student Internet speech cases — cases that involve not only student speech that is not school-sponsored but also student speech that is uttered off campus.

Hazelwood questions
Questions also arise regarding the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, a ruling that upheld a school principal’s censorship of a student newspaper. Finding that the student newspaper was school-sponsored and not a public forum, the Court majority set up a more deferential standard for school officials when they regulate school-sponsored speech or speech that bears the “imprimatur” of the school.

Under the Hazelwood standard, school officials can regulate school-sponsored student speech if they have a legitimate pedagogical (or educational) reason for doing. In Hazelwood, the Court noted that one such pedagogical reason was ensuring that student speech not “associate the school with any position other than neutrality on matters of political controversy” — a breathtakingly broad justification that appears to turn the First Amendment on its head. For this reason, several states have passed — and a few others are considering — anti-Hazelwood measures that provide greater statutory protection for students.

Not only are there questions as to the pedagogical purposes sufficient to satisfy the reasonableness standard of Hazelwood, but also the federal appeals courts are divided on whether school officials must be viewpoint-neutral when disciplining a student for her school-sponsored expression.

As the 10th Circuit acknowledged in Fleming v. Jefferson County School District (2002): “Our sister circuits have split over whether Hazelwood requires that schools' restrictions on school-sponsored speech be viewpoint-neutral.” Most federal circuits have held that school officials do not have to be viewpoint-neutral; rather, school officials merely must have a legitimate or reasonable educational purpose for censoring school-sponsored student speech.

The meaning of 'Bong Hits 4 Jesus'
For many years courts applied the Supreme Court’s trinity of Supreme Court cases when deciding student-speech questions: Tinker, Fraser and Hazelwood. Nearly 20 years went by before the Court took another pure student-speech case. This was the infamous “Bong Hits 4 Jesus” case — Morse v. Frederick. The Court majority determined that public school officials do not violate the First Amendment when they censor student speech that can “reasonably be regarded as encouraging illegal drug use.”

Does Morse v. Frederick create a narrow pro-drug speech exception to Tinker, or something else? It is clear that Morse gives school officials the power to silence student speech that promotes illegal drug use. But does the rationale of the decision apply to any student speech that appears to promote any unlawful action? Does it apply to any student speech that threatens the safety of students?

Some courts seemingly have cabined Morse as a pro-illegal drug speech exception to Tinker. However, the 5th Circuit in Ponce v. Socorro Independent School District (2007) applied Morse — and specifically Justice Samuel Alito’s concurring opinion — to find that school officials can restrict student speech that they reasonably believe poses a danger to school safety — even if it is determined that the student speech is not a true threat or substantially disruptive under Tinker.

First Amendment commentator Douglas Lee pointed out in a column that this decision “extended Morse to allow school administrators to apply zero-tolerance rules to threats of violence and potentially other subjects of student speech.”

What legal test for student dress?
Arguably the messiest area of student expression concerns the regulation of student dress. Many school districts have passed restrictive dress codes or even uniform policies that mandate the wearing of particular types of clothing.

The lower courts apply many different tests to regulation of student dress. A few courts have applied the Tinker substantial-disruption standard to dress-code provisions. Other courts have applied a threshold inquiry from flag cases such as Spence v. Washington (1974) and Texas v. Johnson (1989). This inquiry is often used to determine whether a certain form of student dress is sufficiently expressive to merit further First Amendment scrutiny. The test asks whether there is intent to convey a particularized message and whether it is a message that is reasonably likely to be understood. A federal district court in New Mexico applied this to a restriction on sagging pants in a public school.

Still, many other courts have applied the O’Brien test from the U.S. Supreme Court’s 1968 decision United States v. O’Brien, which dealt with a federal law prohibiting the mutilation and burning of draft cards. Under the O’Brien test, the government must have the power to pass a law; the law must serve a substantial government interest; the government regulation must be unrelated to the suppression of free-expression and the regulation must only incidentally restrict free expression in a minimal way. The most important of the O’Brien factors is the third one regarding whether the government regulation is related or unrelated to the suppression of free expression. Some reviewing courts will say that the purpose of a dress code and/or uniform policy is to create an environment more conducive to learning, rather than to suppress student individuality and expression. Other courts will examine student dress and determine whether it is vulgar, lewd or plainly offensive within the meaning of Fraser.

Students possess First Amendment rights in the public school setting. However, there is much disagreement and a muddled legal morass as to just how much free-expression rights they possess. School officials obviously must ensure a safe learning environment and an environment that is conducive to education. Students must learn about the enduring values of a constitutional democracy, including the fundamental freedom of expression. If students do not learn and appreciate First Amendment values, there is a danger that these future leaders of the country will not protect those fragile freedoms in schools and elsewhere in society. As Justice Robert Jackson said about schools more than 60 years ago in West Virginia Board of Education v. Barnette (1943): “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

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