Freedom with Limitations: How the Supreme Court Has Limited Students’ Freedom of Speech Over the Past Five Decades

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In the U.S. Constitution, the First Amendment addresses one’s right to freedom of speech and expression, but it is clear that the degree of freedom in some circumstances is subject to change or be changed accordingly. Public schools are a clear example of the kind of ‘circumstance’ that school administrators and teachers have struggled with defining the measure of freedom of speech or expression that their students have under the protection of the First Amendment. The question of students’ rights to freedom of speech and expression was first distinctly demonstrated in 1969 in the Tinker vs. Des Moines case. Following this Supreme Court Case, there have only been three other cases that have been taken to the Supreme Court on this topic and are constantly being used to determine acts of student protests that are seen controversial by leveraging their rights appropriately or not. Since the 1969 ruling in the Tinker vs. Des Moines case, which addressed students’ right to some forms of protest by emphasizing that students’ freedom of speech could be exercised in school, I will be exploring how schools’ responses to student’s rights to free speech have changed since the Tinker vs. Des Moines case.

Before the Tinker vs. Des Moines case, students’ rights in school were not a common topic of conversation. Students were expected to behave a certain way and discussion about current events or personal opinions on subjects were both discouraged and unacceptable. School was based on a strict curriculum that both the students and teachers were instructed to follow. That all changed with the Tinker vs. Des Moines case. Since then, there have been three other major Supreme Court cases concerning public school students’ protection under the First Amendment that have demonstrated the growing limitations on student’s freedom of speech. Although the Tinker vs. Des Moines case was a huge step forward for students’ to be able to exercise their freedom of speech, it also opened the door to major controversies about what students are allowed to say and not say in school. Through tracing the four major Supreme court cases from 1969 to the most recent in 2006, I have concluded that school’s responses as well as the Supreme court response to student speech cases on public and high school students’ exercised freedom of speech have resulted in narrowing student’s protection under the First Amendment due to the increasing spotlight on schooling over the past forty years.

In the wake of the Vietnam war, many people, including students, were voicing their opinions on whether the U.S. should play an active role in the war. Demonstrations and protests rose up all across the nation. One peaceful protest, though, received particular attention in Des Moines, Iowa, public high school and resulted in starting the conversation on students’ rights in school. A group of high school students decided to wear black armbands to school as an act of peaceful protest against the sending of troops into the war. When the students were suspended for their protest, they filed against the school and the case was taken up to the Supreme Court. In 1969, the court ruled in favor of the students, clearly declaring that students were protected by the First Amendment and have a right to exercise their freedom of speech and expression in a manner that is not disruptive to other students or members of the school. The famous line that came from this court case states, ”students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’”[1] concluding that public schools are a place where students can exercise their rights and express their political views or opinions in a peaceful way.

As mentioned earlier, this Supreme Court case was the first time public schools had to address the complicated boundaries of exercised freedom of speech by students in school. This case stressed the fact that as long as students were ‘non-disruptive’ to the educational setting, “a fundamental right of freedom of expression cannot be squelched due to ‘a mere desire to avoid [the] discomfort and unpleasantness that always accompanies an unpopular viewpoint.’”[2] Still today this case is often referenced in lower court cases as well as brought light to students’ role in school and how they can and cannot act. It wouldn’t be until twenty years later that another student speech case would work its way up to the Supreme Court and refine the words of the Tinker vs. Des Moines case, making the ways schools respond to students exercise of the First Amendment a bit more complicated.

How does a teacher, principal, or school administrator define ‘non-disruptive?’ The language used in the Tinker vs. Des Moines case made it clear that students are protected by the First Amendment in school but only if it is done so appropriately and does not interfere with the academic environment or make anyone feel unsafe. But this left schools a great deal of power to interpret what those words really mean and look like and had students testing the limits of their freedoms. Almost twenty years after the Tinker vs. Des Moines case, the conversation of student speech rights was brought back up in the Bethel School District vs. Fraser in 1986.

In the 1980’s sex education was a heated topic among public schools. Everyone had different opinions on how it should be taught and what should be covered in the health course. Interestingly enough, after almost twenty years of no Supreme Court cases regarding student speech rights, the Bethel School District vs. Fraser case surfaces as being a case involving both sexual language and students’ right to freedom of speech. In 1986, the Supreme Court ruled in favor of the school district in the Bethel School District vs. Fraser case, when the school decided to suspend high school student Matthew Fraser for the sexual connotations he made during a school-wide speech. The court made it clear that this case was nothing like the Tinker vs. Des Moines case because instead of dealing with political opinionated speech, this case was about vulgar language. The court used language such as, “The purpose of public education in America is to teach fundamental values”[3] and “The constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”[4] This case marked the first distinguished limitation on the Tinker vs. Des Moines that promoted the freedom of speech in public schools as well as demonstrated that schools had the power to monitor students’ speech.

Following the Bethel School District vs. Fraser case, two years later the Supreme Court took on another landmark case, the Hazelwood School District vs. Kulmeier case. This case targeted another area of students’ freedom of speech and expression by focusing on student publications. Again, the court ruled in favor of the school and,

“As the Court saw it, ‘[t]he question whether the First Amendment requires a school to tolerate particular student speech – the question we addressed in Tinker- is different from the question whether the First Amendment requires a school affirmatively to promote particular speech.’ Instead, the Court concluded that the school newspaper was a non-public forum and that the decision to censor the articles (the principal concluded that one of the subject (teen pregnancy) was age inappropriate for many of the school’s students and that the other story (about divorce) was unfair to the father of the student interviewed about her parents’ divorce) was a ‘reasonable’ regulation permissible under the Court’s public forum case law.”[5]

This case trailed behind Bethel School District vs. Fraser in the re-examining of students’ rights of freedom of speech and expression, and both showed how the Supreme Court and school districts believed that there needed to be limitations on how students’ exercise the First Amendment.

Lastly, and continuing the trend of limiting students’ freedom of speech and expression, was the most recent Supreme Court case Morse vs. Frederick. In 2007 the Supreme Court again ruled in favor of the principal’s decision to suspend Joseph Frederick for hanging a banner across the street from the school that said “Bong Hits 4 Jesus.” This case was particularly dragged out, as it went to court nine times before being taken up by the Supreme Court. In the appeal to the Supreme Court, the district brief stated, “’School officials are now faced with a confusing, if not alarming, message. They are responsible for teaching students about the dangers of illegal drugs. But they also must tolerate pro-drug messages in the face of threats of draconian civil-damages lawsuits, this is wildly wrong. And this court should say so.’”[6] There was a lot of debate within the court on this case, but again the Supreme Court decided to re-examine the Tinker vs. Des Moines case and limit the students’ freedom of speech in public schools. What stands out to me most in this case, is that it really challenges the ruling of the Tinker vs. Des Moines case because the banner that was held up wasn’t even on school grounds technically. But the ruling stated that, “’schools may take  steps to safeguard students entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,’”[7] therefore again, leaving schools the ability to define ‘steps to safeguard’ and punish students depending on their definition.

Since the Tinker vs. Des Moines case in 1969, there have been significant limitations put into place on students’ rights to freedom of speech and exercise through Supreme Court cases. As schools take on a greater presence in our society and are seen to hold more responsibility when it comes to teaching students values as well as academic subjects, it is hard for schools to clearly act on situations involving students’ protection of the First Amendment. I believe that this trend will continue in the future, especially with the internet and social media playing dominant roles in our everyday lives.

[1] “Tinker v. Des Moines – Landmark Supreme Court Ruling on Behalf of Student Expression.” American Civil Liberties Union. N.p., n.d. Web. 10 Apr. 2017.

[2] Darden, Edwin C. “Free Speech and Public Schools.” Free Speech and Public Schools. Center for Public Education, 5 Apr. 2006. Web. 1 May 2017. <http://www.centerforpubliceducation.org/Main-Menu/Public-education/The-law-and-its-influence-on-public-school-districts-An-overview/Free-speech-and-public-schools.html>.

[3] “Key Supreme Court Cases.” Key Supreme Court Cases: Bethel School District v. Fraser (ABA Division for Public Education). American Bar Association, n.d. Web. 1 May 2017. <http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/bethel.html>.

[4] Walsh, Mark. “Speech Ruling Backs Schools But Protects Student Political Expression.”Education Week. N.p., 10 Mar. 2017. Web. 8 Apr. 2017.

[5]  35 Hastings Const. L.Q. 835 2007-2008, Morse v. Frederick and the Regulation of Student Cyberspeech by Brannon P. Denning and Molly C. Taylor. P. 840

[6] Trotter, Andrew. “Supreme Court Accepts Case on Student Free Speech.” Education Week. N.p., 10 Mar. 2017. Web. 8 Apr. 2017.

[7] 35 Hastings Const. L.Q. 835 2007-2008, Morse v. Frederick and the Regulation of Student Cyberspeech by Brannon P. Denning and Molly C. Taylor. P. 835.

 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.”

-First Amendment

Works Cited

Altbach, Philip G. “American Student Activism: The Post-Sixties Transformation.” The Journal of Higher Education 61.1 (1990): 32-49. JSTOR. Web. 04 Apr. 2017.

Darden, Edwin C. “Free Speech and Public Schools.” Free Speech and Public Schools. Center for Public Education, 5 Apr. 2006. Web. 1 May 2017. <http://www.centerforpubliceducation.org/Main-Menu/Public-education/The-law-and-its-influence-on-public-school-districts-An-overview/Free-speech-and-public-schools.html>.

“Key Supreme Court Cases.” Key Supreme Court Cases: Bethel School District v. Fraser (ABA Division for Public Education). American Bar Association, n.d. Web. 1 May 2017. <http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/bethel.html>.

“Tinker v. Des Moines – Landmark Supreme Court Ruling on Behalf of Student Expression.” American Civil Liberties Union. N.p., n.d. Web. 10 Apr. 2017.

“Tinker v. Des Moines Podcast.” United States Courts. N.p., n.d. Web. 04 Apr. 2017.

Trotter, Andrew. “Supreme Court Accepts Case on Student Free Speech.” Education Week. N.p., 10 Mar. 2017. Web. 8 Apr. 2017.

Waggoner, Charles. “The Impact Of Symbolic Speech In Public Schools: A Selective Case Analysis From Tinker To Zamecnik.” Administrative Issues Journal Education Practice and Research (2013): n. pag. Web.

Walsh, Mark. “Speech Ruling Backs Schools But Protects Student Political Expression.” Education Week. N.p., 10 Mar. 2017. Web. 8 Apr. 2017.

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