The rights of students
are notoriously difficult to protect, because the government tends to adopt a in loco parentis
standard with respect to the students under its care—and sometimes it can be a strict parent. For this reason, among others, the First Amendment
rights of students and educators can be notoriously difficult to protect.
1968In Pickering v. Board of Education, the U.S. Supreme Court defends an educator who was fired for criticizing school district policies.
In Tinker v. Des Moines
, the most significant student free speech case in U.S. history, the U.S. Supreme Court rules that the First Amendment does, in fact, apply to students. In his defense of students who had been punished for wearing a small black armband in protest against the Vietnam War
, Justice Abe Fortas wrote a stirring majority opinion:
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained ...
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend" ...
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. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.
Although the Tinker
standard has not been universally respected, it is the standard by which other student free speech cases have historically been judged.
1982In Island Trees School District v. Pico, the Supreme Court protects the First Amendment rights of school librarians whose inventories are targeted by local school officials for political reasons. "Local school boards may not remove books from school library shelves," Justice William Brennan writes for the plurality, "simply because they dislike the ideas contained in these books."
1986In Bethel v. Fraser, the Supreme Court holds that a student's lewd speech at a school assembly was disruptive and is subsequently not protected by the First Amendment.
In Hazelwood v. Kuhlmeier
, the Supreme Court rules that a school may censor the content of an official student newsletter. As Justice Byron White writes for the majority:
The question whether the First Amendment requires a school to tolerate particular student speech - the question that we addressed in Tinker - is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.
Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.
In this ruling, the Court establishes an exception to Tinker
that is also relevant to school-sponsored events.