K-12 public school student expression horizon
For the first time in nearly 20 years the U.S. Supreme Court ruled on a pure
student free-expression claim in the June 2007 case Morse
v. Frederick. However, uncertainty remains over some kinds of student
Morse v. Frederick involved a “Bong Hits 4 Jesus” banner displayed by
an Alaska high school student on a public street just across from his public
school while a Winter Olympics torch relay passed through Juneau.
The Court ruled that public school officials could punish students for
expression that they reasonably believe promotes illegal drug use. The decision
adds another exception to the Court’s landmark student-speech case, Tinker
v. Des Moines Independent Community School District (1969). Under
Tinker, school officials cannot censor student expression unless they reasonably
forecast the student expression will create a substantial disruption of school
activities or invade the rights of others.
In the 1980s, the Court decided two other cases — Bethel
School District v. Fraser (1986) and Hazelwood
School District v. Kuhlmeier (1988) — which cut back on the protections
of Tinker. Under Fraser, school officials can restrict student
speech that is vulgar and lewd. Under Hazelwood, school officials have
freer rein to restrict school-sponsored student speech. Now, under “Bong Hits 4
Jesus,” school officials have the authority to restrict student speech that may
promote illegal drug use — even if the speech took place off-campus on a public
street across from the school.
However, there are still several thorny issues in the area of student speech
that were not answered by the Court’s recent decision involving “Bong Hits.” One
of the more prominent issues still percolating through the lower courts concerns
this hazy line between on-campus and off-campus expression.
Student Joseph Frederick argued that he should receive the full panoply of
First Amendment protections that adults receive when he displayed his banner. He
reasoned that he was not on school property when he displayed the banner, had
not attended school that day and was 18 years old. Some amicus briefs, including
that of the civil liberties group the Rutherford Institute, urged the Court to
examine the case as a non-school-speech case. “At the moment he was punished for
his speech, he was on a public sidewalk off school grounds and was simply one
individual among many attending a public event and, as such, had the same
freedom to express his opinions as anyone else attending the event,” the group
Chief Justice John G. Roberts, in his majority opinion, rejected that
analysis, noting that Frederick stood near his classmates at a school-approved
social event when displaying his message. Roberts did acknowledge, however, that
“there is some uncertainty at the outer boundaries as to when courts should
apply school-speech precedents.”
Some of this uncertainty extends to the arena of student online expression.
Cases involving material posted on MySpace.com provide a prime example.
In the MySpace cases, school administrators have punished students for the
content of their expressive material on their own MySpace pages. Some of the
material lampoons school officials. Other content may pose more of a threat of
disruption to school activities. The question is whether such postings are a
matter of school discipline, or parental discipline, or, in extreme cases
involving threatening material, are best left to law enforcement.
Further, can school officials punish students for online expression that they
create off-campus? The lower courts are divided on the issue and the high court
provided no guidance in its latest decision.