1. Freedom of Speech In the School Setting

2. One of our most important individual liberties is Freedom of Speech
One of our greatest challenges is applying Freedom of Speech to students in a school setting.

3. How much First Amendment protection should students be given?
If there is time, it is always an interesting exercise to ask students to compare the amount of First Amendment protection they should receive in the school setting to the protection given to adults in the “real world.” One way would be to ask them to imagine a scale of 0 to 10. Then tell them to think of 0 as no constitutional protection for speech and 10 as complete and absolute protection for speech. Ask them what number they would give to the First Amendment protection that should be extended to adults. Then ask them to provide a number that captures how much First Amendment protection students should receive in school. If there is time, ask them to explain their choices and the reasons for any distinctions they drew.

4. If students have too much freedom
It could lead to chaos and make it hard to teach and learn

5. But, as adults, students will have Freedom of Speech
Shouldn’t they learn to exercise this right in school by being given the same freedoms they will have as adults?

6. For many years, students were presumed to have no First Amendment rights.
That changed in the 1960’s.

7. Students in Iowa wore black arm bands…
…to express their opposition to the Vietnam War

8. The children were sent home
Their parents filed a lawsuit, alleging that the school violated the students’ First Amendment rights

9. The school argued that it wanted to create an educational environment that would be free of distractions.
Students wearing black arm bands would serve as a distraction to other students.

10. In Tinker v. Des Moines (1969)
The U.S. Supreme Court ruled in favor of the protesting students
Credit: History Tunes

11. The Court stated, “School officials do not possess absolute authority over their students.”
Students do not shed their constitutional right to freedom of speech or expression at the schoolhouse gate.

12. Students’ First Amendment rights may be restricted only if …
…student speech would “materially and substantially interfere with the requirements of appropriate discipline in the school”

13. Justice Hugo Black dissented in this case, arguing that students should learn, not teach.
“The armbands did exactly what school officials foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of Vietnam.”

14. Some dismiss Black as an old man hopelessly out of touch with the times…
…Others contend he was absolutely right in recognizing the disruption of the learning environment.
What do you think?

15. Should “distraction” be the basis for deciding whether student speech should be protected by the First Amendment?

16. Tinker v. Des Moines was a great victory for the idea that students possess substantial First Amendment rights
Subsequent decades would witness the Court creating significant exceptions to the principle established in Tinker.

17. Bethel v. Fraser (1986)
At an assembly, Matthew Fraser made a nominating speech for a friend running for vice president, which was characterized by the Court as “an elaborate, graphic and explicit sexual metaphor.”
Here is the text of Fraser’s speech. You may or may not deem it suitable to present to your students. "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most of all, his belief in you, the students of Bethel, is firm.  Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be."

18. Fraser was suspended for three days
He appealed, arguing his speech was protected by the First Amendment.

19. The Supreme Court rejected Fraser’s argument
Chief Justice Burger: “The First Amendment does not prevent school officials from determining that to permit a vulgar and lewd speech … would undermine the school’s basic educational mission.”

20. Do you agree that Fraser’s speech “undermined the school’s educational mission” and justified a three-day suspension?

21. Justice John Paul Stevens dissented
The school’s disruptive conduct rule is focused on the educational process. Fraser’s speech did not occur in the classroom and there was no disruption of the educational process.

22. The Fraser case gives the school more power to limit student speech
Tinker indicated the school could limit student speech only when there was a substantial and material interference with discipline in the operation of the school.

23. The Fraser case gives the school more power to limit student speech
With Fraser, the school could act if student speech was seen as lewd or offensive, regardless of whether there was an interference with school discipline.
Do you agree with this change?

24. Hazelwood v. Kuhlmeier (1988)
Editors of the school newspaper wanted to publish stories on teen pregnancy and the impact of divorce.
The principal ordered the articles to be removed.

25. The principal believed that the articles were inappropriate, personal, sensitive and unsuitable for a high school audience
The student editors brought suit, alleging a violation of the First Amendment.
Credit: Landmark Cases Front Page

26. The U.S. Supreme Court ruled in favor of the school.
When students are engaged in school-sponsored activities, like a student newspaper, school officials can limit student speech to ensure that
Students are demonstrating an understanding of the course material
Readers are not exposed to material that is inappropriate
The school is not being represented in a negative light

27. Justice Brennan wrote in dissent
Students should be learning in school about the constitutional rights they enjoy as citizens. Instead, this school deprived students of their constitutional rights.
“The Court today teaches youth to discount the important principles of our government as mere platitudes.”
Do you agree with Brennan?

28. If you were a member of this Court, would you join Justice Brennan’s dissent? Why or why not?

29. Morse v. Frederick (2007)
High school students displayed a bizarre banner as the Olympic torch was carried past them.

30. The principal ordered the students to take down the banner
Joseph Frederick refused and was suspended for ten days.
He brought suit, alleging violation of his First Amendment rights.

31. The U.S. Supreme Court ruled in favor of the school.
“Bong Hits 4 Jesus” could be reasonably viewed as student speech that promoted drug use. Therefore it may be restricted.
The school has a compelling interesting in deterring drug use by school children that outweighs the student’s First Amendment rights.

32. Justice Stevens dissented
This was a “nonsensical banner” that did not promote drug use
Frederick was being punished for what the principal saw as a pro-drug message
The Court erred in focusing on the principal’s perception instead of the speaker’s intent
The Court erred in allowing the punishment of a viewpoint unpopular with the school administration
Do you agree with Stevens?
Credit: CBS News

33. What strategy/assignment would you use to help your students understand the Morse case?

34. Tinker ruled that student speech should be protected, unless it represented a real threat to the discipline required at school
In the years since, the Court has expanded what can be restricted
Student speech that is seen as lewd or offensive
Student speech that is inappropriate for a student audience
Student speech that is seen as advocating drug use
Do you agree with the evolution of the law and the expansion of the school’s ability to restrict student speech? Is the Court moving in the right direction?