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How Free Is the Speech of Public School Students?

Public Interest Law

In 1996, a Broward County high school art student sued the school board after her

principal removed her sexually suggestive sculpture from a public display within the school.1 In 1997, a Palm Beach County middle school student sued the school board after her principal removed her science fair project (concerning the durability of condoms) from a public display.2 In 1998, in the celebrated case of the “Killian Nine,” nine Miami-Dade County high school students were expelled and arrested as a result of their distribution, at school, of a 20-page booklet (ironically entitled First Amendment ) which contained some allegedly racist material, some sexually suggestive material, and material that school officials interpreted as threatening the life of the principal.3 Early in 1999, in a case arising outside of Florida, a Michigan high school student sued her school board because she could no longer legally wear her pentagram (a symbol of her Wicca beliefs) after the adoption of a new rule barring students from wearing or displaying various kinds of clothing and symbols thought to be associated with gangs, cults, and racist groups.4

In each of these cases (and many more), the student believes that his or her rights under the First Amendment have been violated. Have they?

The answer is far from clear. While no judicial decision known to this author has acknowledged it, there is a stunning lack of certainty and clarity in the law governing the rights of public school students to engage in expressive activity on school premises. Students win some of these cases, and lose others. One reason this is so is that two different courts may take two very different approaches to resolving the same kind of dispute. I will try to explain why.

In 1969, the U.S. Supreme Court decided the granddaddy of student-speech cases, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The Court held that, in the absence of any showing that the students’ expression posed a genuine threat of disruption of the educational program of the schools, high school and junior high school students were constitutionally entitled to attend classes while wearing black armbands to protest American involvement in Vietnam. Justice Fortas wrote for the majority, and his opinion included these arguably important statements:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . . School officials do not possess absolute authority over their students. . . . The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions. . . 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. . . 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.

Id. at 506, 511, 512–13.
Tinker, then, seemed to put forth a “material disruption” standard for evaluating the constitutionality of restrictions on student expression in the public schools.

A very different approach was taken by the Supreme Court in the next case it decided involving student speech, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Fraser was punished as a result of a sexually suggestive speech he delivered at a school assembly. The Supreme Court upheld the action of the school district. Chief Justice Burger, writing for the majority, relied on the following rationale, which was in no way tied to the Tinker “material disruption” standard:
[P]ublic education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values. . . indispensable to the practice of self-government in the community and the nation.” [T]hese “fundamental values” must. . . take into account consideration of the sensibilities of others. . . . The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.. . . Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. . . . The inculcation of these values is truly “the work of the schools.”. . . The determination of what manner of speech in the classroom or school assembly is inappropriate properly rests with the school board.

Id. at 681, 683. Accord, Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989).
Chief Justice Burger quoted (with approval) a federal judge who, referring in another case to the profane words that had appeared on a jacket in the case of Cohen v. California, 403 U.S. 15 (1971), asserted that “the First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.”5

To what extent was Tinker modified by Fraser? Was the logic of the Court’s reasoning in Fraser confined to student expression in the context of school-sponsored events like student assemblies (the actual setting in Fraser itself), or did it extend to all student expression occurring on school premises? At least two federal appellate courts (one in dictum) have stated that Fraser allows school officials to ban all “indecent or vulgar” speech on school premises, even outside the context of school-sponsored activities.6 (In each case, however, one member of the panel disagreed with that conclusion.)7

At this point another important component of the modern law of freedom of speech must be brought into play. Beginning in the mid-1970s, in a series of cases involving claims by citizens of a First Amendment right of access to governmentally controlled properties and channels of communication for the sake of engaging in expressive activity therein,8 the Supreme Court asked a threshold question: Was the property (or channel of communication) a “public forum,” such that (as in the case of public streets, sidewalks, and parks) there was a presumptive right of access to such property for the purpose of speech? The antithesis of the public forum, the so-called “nonpublic forum,” is a governmentally controlled property (e.g., a military base9) that can be made completely “off limits” for expressive activity by citizens. The government will be held to a fairly low level of judicial scrutiny when it restricts speech in a “nonpublic” forum: The government need only act “reasonably” and avoid discrimination on the basis of a speaker’s viewpoint.10 The determinant of whether a nontraditional forum has been made a “public forum” for speech, meanwhile, is the government’s intent to do so.11 The theory underlying this doctrine was perhaps best expressed, long ago (pre-Tinker, in fact), in a case that preceded the development of the doctrine: “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”12

Because Tinker was decided prior to the Supreme Court’s development of its “public forum” doctrine, the Court did not ask, in Tinker, whether the premises of a public school (or any part thereof) was or was not a “public forum” available for student expression. the time of the Fraser decision 17 years later, the “public forum” doctrine was well established, yet no mention of it was made in Fraser. (Of course, since Fraser’s First Amendment challenge was rejected anyway, the omission of any reference to the public forum concept made no difference to the result.) Having developed the public forum doctrine, post-Tinker, should the Court have begun to apply it within the public school setting? (Had the Court implicitly done so, in Tinker, and answered affirmatively?)

In its next such case, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), it did so explicitly for the first time. The case involved a high school newspaper that was the product of a high school journalism class. The journalism teacher exercised a great deal of control over the content of the newspaper, as did the high school principal, whose censorship of some articles that he deemed inappropriate gave rise to the lawsuit filed by some of the students who served on the newspaper staff. Their First Amendment challenge was unsuccessful. The majority of the Supreme Court, speaking through Justice White, asked “whether [the newspaper] may appropriately be characterized as a forum for public expression,” and found that it could not be so characterized.

Instead, [school officials] “reserved the forum for its intended purpose,”. . . as a supervised learning experience for journalism students. Accordingly, school officials were entitled to regulate the contents of [the newspaper] in any reasonable manner. . . . It is this standard, rather than our decision in Tinker, that governs this case. . . . [W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.13

Here, in the majority’s view, they were.
Would the Tinker standard survive, and somehow coexist with the more deferential rule of Hazelwood? So it seems; Justice White expressly addressed the distinction between a case of the Hazelwood kind, involving student speech within the context of a school-sponsored publication, and a case of the Tinker kind, which involves “educators’ ability to silence a student’s personal expression that happens to occur on the school premises.”14 Educators, he stated, “are entitled to exercise greater control over” the former kind of student expression.15

In accordance with Justice White’s reasoning in Hazelwood, lower courts have rejected First Amendment claims by students when the student expression occurred in the context of required or invited curricular submissions or other school-sponsored activities.16

In the examples with which I began this article, then, it can be argued that the disputes involving the sculpture and the science project should be governed by the Hazelwood standard, while the “Killian Nine” and pentagram disputes should be governed by the Tinker “material disruption” standard. (But, again, has Fraser modified Tinker to the extent that Fraser should govern the “Killian Nine”-type conflict?)

But the allocation of judicial tests to differing scholastic settings may not be as simple as the preceding paragraph suggests. For Hazelwood’s application of the “public forum” concept in the public high school setting raises the larger question of whether, Tinker notwithstanding, the “public forum” inquiry must now be made (as a threshold question) in every case involving student expression on the premises of a public school—including cases just like Tinker. The potential consequence of doing so is that, if a court concludes, as in Hazelwood, that the school system did not intend to create a “public forum” for student speech, then the standard used to determine the constitutionality of the school system’s restriction of student speech will be (absent any forbidden viewpoint discrimination) a “reasonableness” standard17—which probably allows a school board far more latitude than does a “material disruption” standard.

It is interesting to note, at this point, that the Supreme Court applied its “public forum” doctrine in a case involving a group of public university students, which had sought to use university facilities for its meetings, where the state university had rejected the group’s request because it was a group organized for the purpose of religious speech and worship.18 A later decision applied the same analysis in the context of a community group that sought access, for expressive purposes, to public school facilities after hours,19 and still another indicated that that analysis was appropriate in the context of a group of public university students which sought funding (on an equal basis with other student groups) for a religious publication.20

As a result of those Supreme Court rulings, lower courts have applied “public forum” analysis in cases involving groups of high school students seeking access to public school facilities, for the purpose of holding meetings or similar events.21 Can cases involving group requests for access to school facilities, for the purpose of holding meetings before or after school hours, be adequately distinguished—with regard to the appropriateness of applying “public forum” analysis—from cases involving expressive acts, during school hours, by individual students or groups of students? Arguably they cannot.

Even if “public forum” analysis is required in every case involving student speech, however, can it be credibly argued that the Supreme Court already decided that public school premises do, in general, constitute an “open forum” for student speech, by virtue of the statement in Tinker, quoted above, that a public school is dedicated, in part, to “personal intercommunication” among students? That is a possible resolution of the matter, but it would seem to run counter to the later-established principle that the existence vel non of a designated public forum depends in each instance on the intent of the government agency which controls the property.22

How have lower federal courts dealt with this conundrum, subsequent to the Supreme Court’s decision in Hazelwood, in student speech cases that do not involve school-sponsored publications or programs? At least one federal court of appeals has deemed it appropriate to apply “public forum” analysis in such cases23 (concluding each time that no “public forum” had been created), while two other courts of appeals have not done so (and have not even openly considered doing so).
24 Conversely, at least a handful of federal district courts have expressly declined to apply “public forum” analysis in such cases, relying on the suggestion in Hazelwood that the Tinker standard is to apply outside the context of “school-sponsored” publications and events.25 (A number of other district courts apparently have not considered the question.)

Aside from the “public forum” complication, how have post-Hazelwood student speech claims fared in the federal courts? The results have been quite mixed.

The bulk of the reported decisions can be placed in two categories: 1) cases involving the distribution by students, on school grounds, of written materials (often religious in nature) produced off-campus; and 2) symbolic speech cases, involving the wearing or display of objectionable buttons, clothing, or flags.26

A typical feature of the former category of case is a requirement that official approval be obtained in advance of the distribution of written materials. In the cases involving bans on distribution of written materials, those courts which deemed the Tinker “material disruption” standard to be applicable have struck down, as invalid prior restraints, requirements that students submit materials to school officials and obtain their approval in advance of distribution.27 In the words of Judge Merhige of the Middle District of Florida:

Following Tinker, a school seeking to impose a content-based prior restriction on student speech must show that the restricted speech would materially and substantially interfere with school operations or with the rights of other students. Mere fear of possible interference is not sufficient to sustain a content-based prior restraint on student speech.28

(Even a court that did not employ the Tinker standard struck down a flat ban on the distribution of religious materials on school premises, deeming such a prohibition to be impermissible viewpoint discrimination.29 But that same court upheld a ban on the distribution of written material “which is primarily prepared by nonstudents,” finding that prohibition reasonable under Hazelwood.)

In contrast, predistribution review requirements have been upheld by courts applying the Hazelwood standard (because of the absence of a public forum), pursuant to which a prior restraint may be found reasonable (as it was in Hazelwood itself).30 In the process of so holding, the Seventh Circuit panel raised (but did not decide) the question of whether elementary school students enjoy any First Amendment rights,31 and suggested, more generally, that, under the Hazelwood reasonableness standard, “a school need not tolerate student expression of viewpoints which are fundamentally ‘inconsistent with its basic educational mission.’”32

With regard to bans on symbolic speech in the public school setting, the results have also been mixed. The good news for students, however, is that almost all of the federal courts responsible for reported decisions in this context have utilized the Tinker “disruption” standard. (The one court that did not do so chose instead to use the test employed—at least sometimes—in symbolic speech cases generally, distinguishing Tinker as a case involving symbolic political speech, whereas the case at hand involved a challenge to a “no-hats” policy by a student who wanted, for cultural reasons, to wear a headwrap at all times.33 The court upheld the policy.) Courts using the Tinker standard have struck down a dress code which banned clothing that referred to a professional sports team or college,34 and another which banned “gang-related” apparel (as applied to plaintiffs’ rosaries).35 But another court upheld the validity of a dress code which barred the wearing of clothing that advocates the use of alcohol (but held that the code could not be validly applied to plaintiffs’ T-shirts).36

In a case decided by the Ninth Circuit Court of Appeals, two high school students had been suspended because, during a teachers’ strike, they wore buttons to school which displayed phrases such as “I’m not listening scab” and “Scab we will never forget.” Their complaint had been dismissed by the district court, which had found that the slogans on the buttons were offensive (relying on the Fraser decision) and inherently disruptive. The appellate court disagreed on both counts, and reinstated the complaint.37

But when students have brought Confederate flags (in various forms) to school, they have not fared as well; evidence of conflict between the flag-bearers and students offended by the flag has allowed courts, using the Tinker “disruption” standard, to reject First Amendment claims in this context.38

An interesting variation on this theme is the subject of ongoing litigation, as of this writing, in our own 11th Circuit Court of Appeals, in a case called Denno v. School Board of Volusia County, 182 F.3d 780, vacated for rehearing, 193 F.3d 1178 (11th Cir. 1999). A high school student, suspended for displaying a Confederate flag to friends during an outdoor lunch break at school, sued two assistant principals for damages for violating his civil rights. The defendants raised the defense of qualified immunity, which would not be available to them if they violated clearly established rights of which reasonable persons in their position would have known. The district court dismissed the complaint on the basis of the qualified immunity defense, but the Court of Appeals reversed that ruling, concluding “that Denno’s complaint, if its allegations. . . are accepted as true, adequately alleges that there would have been no reasonable fear of disruption on the part of school officials. We therefore conclude that Denno’s complaint describes actions with respect to which Tinker has clearly established a student’s First Amendment right.”39

But one judge dissented on this point, noting the absence of “any case clearly establishing the unreasonableness of a school official’s belief that the display of a Confederate flag in a racially integrated school in the Deep South might lead to material disruption.”40 In October 1999, the ruling was vacated, and set for rehearing. We can only wonder, at this point, as to the grounds on which the judges of the 11th Circuit were moved to reconsider this ruling; was the court concerned only with the correctness of the panel’s application of Tinker to this fact pattern, or is the court inclined to reconsider its overall approach to student speech cases?

We shall see. q

1 The Miami Herald, February 11, 1997. The case, Antolak v. School Board of Broward County, was settled in early 1997.
2 The Miami Herald, August 16, 1997.
3 A lawsuit challenging the validity of the arrests of the students is pending.
4 The Miami Herald, February 11, 1999, page 16A.
5 Fraser, 478 U.S. at 682.
6 Chandler v. McMinnville School District, 978 F.2d 524, 529 (9th Cir. 1992) (dictum); Bystrom by Bystrom v. Fridley High School, Independent School District No. 14, 822 F.2d 747, 753 (8th Cir. 1987). See also Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998).
7 Chandler, 978 F.2d at 532 (Goodwin, J., concurring); Bystrom, 822 F.2d at 762 (McMillian, J., partially dissenting).
8 E.g., Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
9 See Greer v. Spock, 424 U.S. 828 (1976).
10 The doctrine is explained in some detail in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983). Technically, the proper argument to be made on a student’s behalf would be that the public school premises constituted a “limited public forum,” open for expressive activity by students and teachers, but not by members of the public at large.
11 Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788 (1985).
12 Adderly v. Florida, 385 U.S. 39, 47 (1966).
13 Hazelwood, 484 U.S. at 270, 273.
14 Id. at 271.
15 Id.
16 C.H. v. Oliva, 195 F.3d 167, vacated for rehearing en banc, 197 F.3d 63 (3d Cir. 1999); Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995); McCann v. Fort Zumwalt School District, 50 F. Supp. 2d 918 (E.D. Mo. 1999). In C.H. v. Oliva, the court characterized student speech as either “promoted” or “tolerated” by school authorities. 195 F.3d at 173–75.
17 But take note of judicial statements such as this one: “Under Hazelwood, ‘[e]ducators are entitled to exercise greater control over. . . student expression’ when it is elicited as part of a teacher-supervised, school-sponsored activity. . . . In that specific environment, viewpoint neutrality is neither necessary nor appropriate, as the school is there responsible for ‘determin[ing] the content of the education it provides.’” Oliva, 195 F.3d at 173. See also text at supra note 32. It may be that, whenever a public school setting is seen as a “nonpublic forum,” Hazelwood applies, with little or no protection against viewpoint discrimination. But see text at supra note 29.
18 Widmar v. Vincent, 454 U.S. 263 (1981).
19 Lamb’s Chapel v. Center Moriches Union Free School District, 113 S.Ct. 2141 (1993).
20 Rosenberger v. Rectors of the University of Virginia, 115 S.Ct. 2510 (1995).
21 See, e.g., Student Coalition for Peace v. Lower Merion School District, 776 F.2d 431 (3d Cir. 1985). [ Due to the later enactment of the Equal Access Act, 20 U.S.C. §§4071 et seq., later cases of this kind have not required First Amendment analysis. See, e.g., Board of Education v. Mergens, 496 U.S. 226 (1990).] See also DiLoreto v. Downey Unified School District Bd. of Education, 196 F.3d 958 (9th Cir. 1999), finding a high school baseball field fence to be a “nonpublic forum,” and thus rejecting a challenge brought by a nonstudent seeking to place a paid advertisement on the fence.
22 The argument was rejected in Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1539 (7th Cir. 1996).
23 Muller, 98 F.3d 1530, 1539–40 (7th Cir. 1996) (but see the concurring opinion of Judge Rovner, at 1545–47); Hedges v. Wauconda Community School District No. 118, 9 F.3d 1295 (7th Cir. 1993). Accord, Hemry v. School Board of Colorado Springs School District No. 11, 760 F. Supp. 856 (D. Colo. 1991). See also a pre-Hazelwood decision that employed public forum analysis, Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (M.D. Pa. 1987). Another court of appeals, in C.H. v. Oliva, 195 F.3d 167, vacated for rehearing en banc, 197 F.3d 63 (3d Cir. 1999), employed a public forum analysis in the context of curricular activities in an elementary school. Yet another, in Henery ex rel. Henery v. City of St. Charles, 200 F.3d 1128 (8th Cir. 1999), ruled that a high school election campaign was not to be treated as a “public forum.” See also Miles v. Denver Public Schools, 944 F.2d 773 (10th Cir. 1991), employing a public forum analysis in a case involving a public school teacher’s free speech claim.
24 Denno v. School Board of Volusia County, Fla., 182 F.3d 780, vacated for rehearing, 193 F.3d 1178 (11th Cir. 1999); Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992); Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988).
25 Clark v. Dallas Independent School District, 806 F. Supp. 116 (N.D. Tex. 1992); McIntire v. Bethel School, 804 F. Supp. 1415, 1426–27 (W.D. Okla. 1992); Slotterback v. Interboro School District, 766 F. Supp. 280, 290 (E.D. Pa. 1991); Rivera v. East Otero School District R-1, 721 F. Supp. 1189, 1194 (D. Colo. 1989).
26 If the distribution on campus of an “underground newspaper” is seen as creating a genuine threat of disruption, it will not be protected. See, e.g., Boucher v. School Bd. of the School Dist. of Greenfield, 134 F.3d 821 (7th Cir. 1998).
An occasional reported decision pertains to a verbal outburst on the part of a student, which may involve the use of threatening language (which is unprotected speech in all instances), as in Lovell by Lovell v. Poway Unified School District, 90 F.3d 367 (9th Cir. 1996), or which may be found to have disrupted the functioning of the school, as in M.C. v. State, 695 So.2d 477 (Fla. 3d D.C.A. 1997). Compare In re Louise C., 1999 WL 977053 (Ariz. App. 1999).
27 Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D. Fla. 1994); Clark v. Dallas Independent School District, 806 F. Supp. 116 (N.D. Tex. 1992); Slotterback v. Interboro School District, 766 F. Supp. 280 (E.D. Pa. 1991); Rivera v. East Otero School District R-1, 721 F. Supp. 1189 (D. Colo. 1989). See also
Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (M.D. Pa. 1987).
28 Johnston-Loehner v. O’Brien, 859 F. Supp. 575, 580 (M.D. Fla. 1994).
29 Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295 (7th Cir. 1993).
30 Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996); Hemry v. School Board of Colorado Springs School District No. 11, 760 F. Supp. 856 (D. Colo. 1991). A similar, pre-Hazelwood ruling is Bystrom by Bystrom v. Fridley High School, Independent School District No. 14, 822 F.2d 747 (8th Cir. 1987) (but see the partially dissenting opinion of Judge McMillian at 759, 761).
31 Muller, 98 F.3d at 1538.
32 Id. at 1542.
33 Isaacs ex rel. Isaacs v. Board of Education of Howard County, Md., 40 F. Supp. 2d 335 (D. Md. 1999).
34 Jeglin v. San Jacinto Unified School District, 827 F. Supp. 1459 (C.D. Cal. 1993).
35 Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (S.D. Tex. 1997).
36 McIntire v. Bethel School, 804 F. Supp. 1415 (W.D. Okla. 1992).
37 Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992).
38 West v. Derby Unified School District No. 260, 23 F. Supp. 2d 1223 (D. Kan. 1998); Phillips v. Anderson County School District 5, 987 F. Supp. 488 (D.S.C. 1997).
39 Denno, 182 F.3d at 784.
40 Id. at 788.

Marc Rohr is professor of law at the Shepard Broad Law Center of Nova
Southeastern University, where he has taught since 1976. He received his B.A. from Columbia University in 1968 and his J.D. from Harvard Law School in 1971.

This column is submitted on behalf of the Public Interest Law Section, Paulo G. Annino, chair.

Public Interest Law