Free Speech and Expression Rights of Students
2012-02-06 01:08:05 by admin
There has always been a fundamental tension between public school students and educational authorities in determining the parameters of acceptable student behavior. Particularly volatile controversies have focused on identifying when school personnel may restrict student verbal, symbolic, or written expression. In light of this tension, this entry focuses on these disputes and the legal principles that the courts apply in seeking resolution of differences.
Most of the disputes over student expression focus on the First Amendment to the U.S. Constitution that, in part, prohibits Congress from enacting laws abridging the freedoms of speech or press. First Amendment restrictions on Congress are applied to the states through the Fourteenth Amendment, which the U.S. Supreme Court interprets as incorporating the Bill of Rights and protecting these freedoms against state interference.
In the United States, free expression rights are perhaps the most highly valued individual liberties. The government, including public school boards, must have a compelling justification to curtail citizens’ freedom of expression. Free expression rights extend to minority views as well as to the right to remain silent, including the placement of a cross on public property by the Ku Klux Klan, the burning of the American flag by political protesters, and refusal to participate in the Pledge of Allegiance in public schools.
For almost four decades, the Supreme Court has recognized that students do not shed their constitutional rights when they enter public schools. Moreover, the Court has noted that public schools provide the appropriate environment for children to acquire an understanding of and respect for these rights. However, the Court has also stated that students’ constitutional rights in public schools are not automatically the same as those of adults in other settings and may be limited by reasonable policies that take into consideration the special circumstances of the educational environment. This entry explores the scope of students’ First Amendment rights pertaining to private and school-sponsored expression, including literature distribution, student clubs, and appearance.
Unprotected Conduct and Expression
Speech is protected by the First Amendment only when it communicates an idea that is likely to be understood by the target audience. Thus, before First Amendment guarantees are implicated, a threshold question is whether student conduct involves expression at all for First Amendment purposes. To illustrate, some courts have concluded that student dancing is not a form of expression deserving First Amendment protection. Thus, public school officials have been upheld in their efforts to curtail suggestive student dancing at school-sponsored events.
Even if specific conduct qualifies as expression, it is not assured constitutional protection; the judiciary has recognized that defamatory, obscene, and inflammatory communications are outside the protective arm of the First Amendment. In addition, expression viewed as lewd and vulgar or the promotion of illegal activity for minors is not protected in the public school context, even though such expression may be protected for the general citizenry.
Defamation includes verbal (slander) and written (libel) expression that is false, that is communicated to a third party, and that exposes another person to shame or ridicule. Courts have upheld school authorities in banning libelous content from student literature distributed at school and in disciplining students who have distributed such materials. Even so, regulations may not be vague or grant school officials complete discretion to censor potentially libelous materials.
In evaluating Defamation claims, courts will assess whether the comments are directed toward a private person or a public figure or official. Private persons can establish that they have been defamed with proof that the defendant made a damaging false statement to a third party, but public figures or officials must also show that the statement was made with malice or reckless disregard for the truth. Courts generally consider teachers to be private persons, but school board members are usually considered public officials for Defamation purposes. Courts have differed regarding the status of public school administrators and coaches in this regard.
Obscene, Lewd, or Vulgar Expression
The First Amendment does not extend to public school students the right to publish or voice obscenities. In 1986, the Supreme Court went further in Bethel School District No. 403 v. Fraser, allowing school personnel to curtail lewd and vulgar student expression that may not be considered obscene. In Fraser, the Court agreed with school officials that they had the right to discipline a student who presented a student government nomination speech structured as a sexual metaphor. The school’s interest in protecting its captive student audience from speech considered offensive to both students and teachers alike was enough to override expression rights that adults might enjoy in other settings. The Court emphasized that speech protected by the First Amendment for adults is not always protected for students, reasoning that local school boards retain the authority to regulate student speech in both classrooms and assemblies. The Court further held that notice of such policies was given to Fraser via school rules and warnings by teachers that his intended speech was out of place for a school assembly.
For more that a decade, lower courts interpreted Fraser as granting broad discretion to school authorities in identifying indecent student expression that would not warrant First Amendment protection. Yet, some courts recently have interpreted the reach of Fraser more narrowly as restricting only expression of a sexual nature and/or pertaining only to the manner of expression rather than the content. This topic is revisited in the concluding section of this essay.
The judiciary also has upheld school policies that prohibit students from engaging in inflammatory expression in public schools. Courts have recognized the difference between fighting words that threaten or incite violence and expression that advocates an idea or position in an orderly fashion. Inflammatory student expression can be curtailed at school, but more ambiguity surrounds the discretion of school authorities to punish students for off-campus inflammatory expression. Courts usually have ruled that such offcampus expression must have a significant negative impact on the school, its staff, or its students for the speaker to be punished by school personnel.
Alleged threats made by students toward classmates or school employees are generating an increasing number of lawsuits. Courts examine several factors to determine if a true threat has been made, such as reactions of the recipient and other listeners, whether the maker of the alleged threat had made similar statements to the victim in the past, if the utterance was conditional and communicated directly to the victim, and whether the victim had reason to believe that the speaker would engage in violence. Where courts have reasoned that an ordinary, reasonable recipient of the communication would interpret it as a serious threat of injury, courts have found the comments to be unprotected. Also, students may be punished for unprotected inflammatory expression, even though it is not considered to be a true threat.
Expression Promoting Illegal Activity for Minors
The judiciary traditionally has upheld school authorities when they seek to bar student expression that promotes illegal activity, such as including advertisements for drug paraphernalia in student publications. In its first case pertaining to student expression in almost 20 years, the Supreme Court in 2007 held that students may be disciplined for expression that school authorities viewed as promoting illegal drug use, despite controversy over the intent of the plaintiff’s message.
In Morse v. Frederick, a student unfurled a banner reading “BONG HiTS [sic] 4 JESUS” (p. 2619) as the Olympic torch relay passed by students who had been released from school to cross the street and see the procession. The principal confiscated the banner and suspended the student, and the Supreme Court rejected the student’s claim that the principal’s actions abridged the Free Speech Clause. The Court reiterated that students’ expression rights in schools are not the same as rights of adults in other settings, holding that student expression viewed by school personnel as celebrating unlawful conduct is not protected by the First Amendment, even though the expression does not incite lawless action.
While the First Amendment does not protect the types of expression discussed above, student expression with financial motives (commercial speech) enjoys some constitutional protection. Even so, this protection is at a lower level than that afforded pure speech designed to convey a political or ideological viewpoint. The Supreme Court has ruled that the government may place constraints on commercial speech as long as there is a reasonable fit between the restrictions and a governmental goal. Courts have upheld regulations barring fund-raising activities in public schools in order to enable schools to remain focused on their educational function and to deter the commercial exploitation of students.
Students also have asserted a First Amendment right not to be exposed to commercial expression in public schools. Illustrative are the legal developments pertaining to Channel One. Numerous school boards received free equipment by entering into Contracts with Channel One under which all students were to watch a 10-minute news program and 2 minutes of commercials each day. The judiciary has upheld the discretion of school boards to enter into Contracts with Channel One and other companies offering services that require students to view or listen to commercials, but some courts have ruled that offended students must be excused from the activities. Additional litigation in this arena seems likely, given the popularity of such commercial activities in public schools.
Protected Student Expression
Students’ expression of political or ideological views in public schools is protected by the First Amendment as long as it is not libelous, defamatory, inflammatory, lewd, vulgar, or viewed as promoting illegal activity. Whether such protected expression may be censored depends in part on the distinction between private speech and school-sponsored speech.
In deciding whether expression may be restricted, the type of forum the government has created for expression often is a crucial consideration. Speech in a public forum, such as public streets and parks, may not be limited based on its content. In an open forum, officials may impose content-based restrictions only if they are justified by a compelling government interest. Conversely, speech in a nonpublic forum, such as a public school, may be confined to the government’s intended purpose for use of the property, such as education. Limitations on expression in a nonpublic forum still must be reasonable and not involve viewpoint discrimination.
Public schools may create a limited public forum for expression. This category refers to a forum that would otherwise be nonpublic, but that school officials have designated for a certain group of speakers, such as students, and/or for certain topics to be discussed. Illustrative are student activities held during a period designated for student clubs to meet. A limited forum is subject to the same protections that are applied to a traditional public forum, except for the allowable restrictions on categories of speakers and topics.
Private student expression of ideological views is governed by the landmark Supreme Court decision, Tinker v. Des Moines Independent Community School District, rendered in 1969. In Tinker, a few students were disciplined for wearing black armbands to protest the Vietnam War, in violation of a policy enacted when school board members learned about the planned silent protest. The board policy did not ban the wearing of all symbols but was very specific in prohibiting armbands. The Supreme Court found no evidence of any disturbance from the students wearing the armbands and ruled that student expression may not be curtailed merely because it causes school officials some discomfort. The Court emphasized that students do not shed their constitutional rights when they enter a public school.
In Tinker, the Supreme Court articulated the disruption standard, echoing statements made in an earlier federal appellate ruling. The Court declared that students may express their ideological views in the classroom, cafeteria, or any other place, as long as they do not substantially disrupt the education process or interfere with the rights of others. At the same time, the Court also recognized that school personnel have the right as well as the duty to maintain discipline in schools and an environment conducive to learning.
Once courts determined that protected private student expression is at stake, they had to assess whether restrictions may be imposed in particular situations. Students have prevailed where their expression critical of school authorities or school policies has been the basis for disciplinary action, which would cause ordinary students to refrain from such expression in the future.
Under the Tinker principle, private expression may be curtailed if it is likely to disrupt the educational process; examples of such expression include wearing gang symbols or voicing racist comments. Prior restraints placed on student expression (e.g., a rule prohibiting students from wearing any buttons with printed words) must be justified as bearing a substantial relationship to an important government interest. Of course, students always may be punished after the fact if their expression causes a disruption or interferes with others’ rights. Courts have condoned disciplinary action against students who have engaged in walkouts, boycotts, sitins, or other protests involving conduct that blocks hallways, damages property, causes students to miss class, or in other ways interferes with school activities.
Distribution of Non–School-Sponsored Literature
As will be discussed, school authorities have considerable discretion in censoring school-sponsored publications for legitimate pedagogical reasons. Yet, students have a First Amendment right to distribute private literature at school as long as the expression does not fall in one of the unprotected categories and the distribution does not disrupt school activities or interfere with others’ rights. Over time, students have attempted to distribute underground (not schoolsponsored) newspapers and other materials at school, ranging from articles criticizing governmental policies to literature promoting religious beliefs.
Courts have ruled that school authorities must justify any policies that require administrative approval of the distribution of private student literature. If a school is going to impose prior restraints, it must set clear, narrow, and objective standards to judge what expression is barred, and it must establish mechanisms for a timely determination as to whether the criteria are met. The federal Constitution requires policies to be very specific when they limit private expression, and expression may not be censored for the viewpoint it promotes. Policies subjecting all nonschool publications to prior review for the purpose of censorship may be considered unconstitutionally overbroad.
When students’ distribution of religious messages has been challenged as abridging the Establishment Clause, some courts have upheld prohibitions on such distribution for elementary students, concluding that elementary-age children are vulnerable and impressionable, and thus they need to be protected from proselytizing activities of their classmates. However, in a number of cases involving high school students, courts have upheld their rights to distribute religious literature during noninstructional time at school. These courts have reasoned that religious and nonreligious publications distributed by high school students are subject to the same First Amendment protections.
As noted previously, the courts have been more likely to support school officials when they have taken disciplinary action after students engaged in questionable expression. School officials are not required to demonstrate that a publication encouraging actions that endanger students’ health or safety, such as promoting drug use, would lead to a substantial disruption. Additionally, Courts have allowed students to be disciplined after the fact for distributing material that is abusive toward classmates or teachers or that advocates the destruction of school property.
“Hate speech” policies have been struck down in municipalities and public higher education, but traditionally K–12 school board policies barring expression that constitutes verbal harassment based on race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics have not seemed as susceptible to successful First Amendment claims. Public schools have enjoyed this judicial deference due to their purpose in educating and instilling basic values such as respect, good manners, and habits of civility. Nonetheless, courts have struck down some school board Antiharassment Policies, because they were found to be overbroad in curtailing protected expression or arbitrarily or discriminatorily applied. Questions remain regarding the legality of Antiharassment Policies, especially those adopted in the absence of disruptive incidents.
Some cases have focused on students displaying confederate flags during class in violation of school districts’ Antiharassment Policies. Courts in general have upheld disciplinary action for such displays in schools that have experienced racial tensions, because the confederate flag can lead to a disruption in such environments. However, students have prevailed in challenging bans on displaying the confederate flag where there is no evidence that such emblems of students’ southern heritage are linked to a school disruption.
Particularly sensitive questions are raised when antiharassment provisions collide with students’ expression of their religious views. Courts have recognized the tension between the school’s duty to instill civil behavior and students’ rights to express their opinions at school. Conflicting decisions have been rendered regarding whether schools may prohibit students from airing their religious beliefs regarding lifestyle choices. Some courts have upheld school districts’ efforts to prohibit expression that demeans homosexuality, noting that public schools have a legitimate role in promoting respectful discourse among students and in barring harassing expression. Other courts have upheld students’ rights to express their sincerely held religious beliefs that homosexuality is a sin, even though such expression may offend some classmates.
The judiciary usually has applied the Tinker principle in addressing First Amendment protections afforded to students’ expression via the Internet, because the expression is private rather than school sponsored. Frequently, these cases involve student materials that are created and distributed off school grounds but are easily accessible to the entire school during school hours.
Students have prevailed in several instances where they have challenged disciplinary action for Web pages they created at home in the absence of evidence that the material threatened or intended harm to anyone or interfered with school discipline. Other students have been disciplined for Internet communications that have defamed classmates or teachers or have been sufficiently connected to a disruption of the school. The key determinant in these cases appears to be whether the material created off campus has a direct and detrimental impact on the school, its staff, and/or its students. Of course, as discussed previously, Electronic Communication that poses a genuine threat may not deserve constitutional protection at all.
The amount of protection afforded student speech is based on whether it is private expression that happens to occur at school in contrast to expression that represents the school. While the courts afford private expression extensive constitutional protection under Tinker, student expression appearing to be school sponsored can be limited based on legitimate pedagogical reasons. The federal courts have broadly interpreted what constitutes schoolsponsored speech, thus reducing the circumstances under which student expression is protected by the First Amendment.
The legality of school censorship of student expression in school publications and other school-sponsored activities is governed by the principle recognized in the 1988 Supreme Court decision, Hazelwood School District v. Kuhlmeier. In Hazelwood, the controversy focused on the high school principal’s censorship of material from a student newspaper for its content dealing with divorce and teenage pregnancy and for fears that specific students could be identified in the articles. The Court found the newspaper to be a school-sponsored forum, not a public forum, reasoning that only through clear intent of school officials is a limited public forum created for student expression. The Court held that expression appearing to bear the school’s imprimatur can be censored based on legitimate pedagogical concerns, and it distinguished a public school’s toleration of private student expression, which is constitutionally required under some conditions, from its promotion of student speech that represents the school and may contradict the message the school wants to promote.
In subsequent cases, courts have broadly interpreted school-sponsored expression, noting that limitations may be placed on speech in schools that would not be allowed elsewhere. Courts have reasoned that the school has the right to disassociate itself from controversial expression that conflicts with its objectives and have considered school-sponsored activities to include student newspapers supported by the public school, Extracurricular Activities sponsored by the school (including those that take place off school grounds), school assemblies, and classroom activities.
It is important to note that Hazelwood does not give school authorities unlimited discretion to censor student expression that bears the public school’s imprimatur. Even in a nonpublic forum, viewpoint discrimination is not allowed. To illustrate, a school board could not bar antidraft organizations’ advertisements from the school newspaper while allowing the paper to include advertisements pertaining to military recruitment. Moreover, if viewpoint discrimination is not at issue, censorship of student expression in a nonpublic forum must still be related to legitimate pedagogical concerns to comply with the principle articulated in Hazelwood.
Some disputes have focused on student religious expression in school-sponsored activities, and as is true with claims involving the distribution of religious literature and antiharassment provisions, these controversies are particularly volatile. Courts have ruled that students do not have a free expression right to infuse their religious beliefs in course assignments when clearly instructed to do research on specific topics or to investigate subjects that are new to them. However, if students are given discretion in selecting the topic for an assignment, they may not be barred from including religious content. And, of course, courts have recognized that it is permissible, and indeed desirable, for public schools to teach about religion as long as public school personnel do not cross the line to religious indoctrination.
Acontroversial issue recently has been the application of Hazelwood to institutions of higher education. There are obvious differences between high schools and postsecondary education. College students attend voluntarily, while at least part of high school is compulsory in all states. Also, college students are older and thus expected to be more mature than high school students. Based on these differences, student expression has been subject to somewhat different standards in postsecondary institutions. Still, some courts have applied Hazelwood to classroom expression in public institutions of higher education, reasoning that such expression represents the institution and can be censored for pedagogical reasons.
Time, Place, and Manner Regulations
Courts agree that school authorities may impose reasonable policies regulating the time, place, and manner of private and school-sponsored expression. Thus, courts have upheld school policies that limit expression to prevent a disruption of the educational environment or school activities, such as prohibiting literature distribution in classrooms or on stairways when students are changing classes or exiting the building.
Even when the courts have upheld them, time, place, and manner restrictions must be reasonable, avoid viewpoint discrimination, and be applied consistently to all students. In addition, school officials should provide students with clear guidelines regarding when and where literature distribution and other expressive activities are appropriate. A policy would not be considered a reasonable time, place, or manner regulation if it confined student literature distribution to an hour after school ends or to a remote place off school grounds.
At the same time, regulations must not interfere with students’ rights to receive or reject literature that is offered in conformance with the school’s policies. School regulations should be specific as to when and where students may gather, distribute petitions and other materials, and otherwise express their ideas in nondisruptive ways. Absent such clearly articulated guidelines, time, place, and manner restrictions may be vulnerable to successful judicial challenges.
Student and Community Meetings in Public Schools
School policies that limit meetings of student and community groups also have generated a significant amount of litigation. The First Amendment does not protect certain student groups such as secret societies that determine membership by a student vote. Schools are not expected to recognize such groups and usually prohibit membership in secret societies. In addition, faculty may exert control over some school-sponsored organizations, such as the National Honor Society, and students have not been successful in contesting faculty decisions regarding who is admitted to such honor societies. As discussed below, other student groups have been the focus of frequent First Amendment controversies.
Prohibitions on meetings of student-initiated groups with open membership are vulnerable to challenges under the First Amendment and the Equal Access Act (EAA). The EAA was enacted in 1984 and specifies that if federally assisted secondary schools provide a limited open forum for noncurricular student groups to meet during noninstructional time, access cannot be denied based on the religious, political, philosophical, or other content of the groups’ meetings. Strong advocates of the EAA were groups associated with the religious right, but some more liberal groups also supported this law to derail efforts to impose daily prayer in public schools.
The EAA’s protection extends far beyond studentinitiated religious expression. If officials in a federally assisted high school allow even one noncurricular group to use school facilities during noninstructional time, the EAA guarantees equal access for other noncurricular student groups as long as they are not disruptive. In several cases, courts have agreed that school authorities may not justify denying school access to particular student groups, such as peace activist organizations or the gay-straight alliances, when other student groups are allowed to hold meetings during noninstructional time.
Federally assisted high schools may decline to establish a limited open forum for student-initiated meetings and thus limit school access to student organizations that are curriculum related, such as language clubs and athletic teams. Yet, even if a secondary school has not established a limited open forum, it still cannot exert viewpoint discrimination against particular curriculum-related groups.
The Supreme Court rejected a challenge to the EAA in Board of Education of Westside Community Schools v. Mergens (1990). The Court found the law to be religiously neutral and designed to expand students’ expression rights, so it does not abridge the Establishment Clause of the First Amendment. The Court thus concluded that allowing student-initiated religious meetings to take place during noninstructional time does not give the impression that the school endorses the groups’ religious views.
Courts recently also have relied on the Free Speech Clause of the First Amendment to require schools to provide equal treatment of student religious and other groups in terms of access to school facilities, bulletin boards, and other school resources. In light of how broadly courts have interpreted First Amendment protections in this regard, there is some sentiment that the EAA is no longer needed.
Along with its other elements, the First Amendment affords considerable protections to community groups that wish to meet in public schools, including groups involving children. Controversies over school access for community groups focus on the First Amendment rather than the EAA, as the latter provision pertains only to student-initiated groups in secondary schools. Akey First Amendment consideration is whether the public school has established a forum for groups to meet.
The Supreme Court has delivered several significant decisions holding that if schools create a limited open forum for community groups to meet by allowing school access to one such group, the school may not deny access to other organizations. Selective access based on the content of the meetings constitutes viewpoint discrimination in violation of the Free Speech Clause. For example, in Good News Club v. Milford Central School, the Supreme Court in 2002 upheld the right of an evangelical Christian organization to hold meetings in the public school right after school hours, even though the club targets elementary-age children attending the school. The Court rejected the assertion that allowing the club to meet in public schools abridged the Establishment Clause. Subsequently, lower courts have condoned the distribution of flyers in public schools to publicize the Good News Club meetings and have allowed teachers to attend the club’s meetings that are held after school hours, even in the elementary school where they teach.
School access for the Boy Scouts has been controversial following the Supreme Court’s decision that allows this organization to deny homosexuals the opportunity to be group leaders, which conflicts with some school districts’ antidiscrimination policies. Courts have recognized the free speech rights of this organization to use school facilities after school hours if other groups are granted such access, even though this practice conflicts with districts’ policies prohibiting discrimination on the basis of sexual orientation. In light of the complex issues involved, the scope of constitutional and statutory protections afforded to student and community groups seeking school access seems likely to remain contentious.
Students’ and schools’ interests often collide in connection with student appearance. Whether it is the latest fad in hairstyles or clothing, courts often have been called on to determine how much discretion school authorities have when attempting to regulate student appearance in public schools.
Student hair length, grooming, and hair color have generated many First Amendment disputes. Unfortunately, courts have not been uniform in their assessments of school restrictions on students’ hairstyle. Some courts have found that such constraints impair students’ protected liberties, but others have supported the discretion of school authorities to govern student hair length and style.
The length of male students’ hair was an especially litigious issue in the 1970s, and the U.S. Supreme Court declined to render a decision in any of the cases appealed to it. Thus, legal standards varied across federal circuits that dealt with this issue. Where the school’s justification for a grooming regulation has been based on concern for student health, such as requiring hairnets for cafeteria workers, the restrictions usually have been upheld. In addition, school officials have been allowed to impose grooming restrictions on students participating in Extracurricular Activities for safety reasons and on those enrolled in vocational programs where prospective employers often visit.
Of course, students may be disciplined for hairstyles that cause a disruption, such as hair groomed or dyed in a manner that distracts classmates from educational activities. But hairstyle regulations may not be arbitrary or devoid of an educational rationale. Several courts have allowed different hair-length restrictions to be applied to male and female students to reflect community norms or to curtail the influence of Gangs.
Courts have upheld schools in barring student attire that is immodest, suggestive, disruptive, or unsanitary or that promotes unlawful behavior for minors. The principles articulated by the Supreme Court in Tinker, Fraser, and Frederick govern the constitutionality of student attire.
Only when school-sponsored expression is at issue would the Hazelwood principle be implicated, and there usually is no contention that student clothing represents the school. Students may be asked not to wear attire that is disruptive or intrudes on the rights of others under Tinker. Lewd and vulgar attire may be censored applying Fraser, and attire viewed as promoting unlawful conduct for minors can be barred under Frederick, regardless of whether the attire would meet the Tinker test of threatening a disruption. Some courts have broadly interpreted Fraser, reasoning that school boards and educational officials may prevent students from wearing attire that is disrespectful to school authorities, that undermines their authority, or that conflicts with school goals of denouncing drugs and promoting human dignity and democratic ideals (e.g. Marilyn Manson T-shirts, gang symbols, antigay shirts). These courts have recognized that a school may prohibit student expression that is inconsistent with its educational mission even though such speech might be protected by the First Amendment outside the school environment.
As noted previously, though, other courts have narrowly interpreted Fraser, reasoning that it allows school authorities to curtail sexually oriented expression considered lewd or vulgar, but does not extend to political or other expression. Moreover, whether Fraser applies to the content of expression or only to the manner of expression remains controversial. In Frederick, the Supreme Court declined to extend Fraser to any expression school authorities consider plainly offensive, but otherwise it did not resolve the conflicting interpretations of the reach of Fraser. If a court narrowly interprets the application of Fraser, then Tinker’s disruption standard will likely be evoked to determine the constitutionality of the student attire at issue unless it promotes illegal conduct, which is governed by Frederick.
As with hairstyle regulations, there must be a legitimate educational rationale for the school to regulate student attire. In addition, Dress Codes must not discriminate on the content of students’ messages or be discriminatorily enforced. Targeted bans toward particular expression are considered viewpoint discrimination. Still, courts have not been consistent in deciding whether students’ First Amendment rights to convey their religious beliefs on T-shirts (e.g., homosexuality is shameful) or the school’s duty to maintain a respectful environment should prevail. In several cases, courts have concluded that the Tinker disruption standard has not been satisfied by the school’s restrictions on students’ political or religious statements on T-shirts in the absence of a disruption. Other courts have ruled in favor of the school’s authority to adopt policies that bar such attire to ensure a respectful educational environment and to avoid intruding on the rights of other students.
Different attire rules for male and female students have been condoned by courts. For example, the judiciary has upheld Dress Codes that prohibit male students from wearing earrings to inhibit gang influences and promote community values, rejecting the assertion that jewelry restrictions must be applied equally to male and female students. Also, courts have upheld school boards in prohibiting students from wearing clothing of the opposite sex to school dances and other events.
Some schools are adopting restrictive Dress Codes or student uniforms to avoid the sensitive controversies pitting expression rights against schools’ interests in promoting civil expression. And courts have been inclined to uphold such policies as long as there are waivers for students who are opposed to uniforms on religious grounds and provisions are made to assist students who cannot afford the specified attire.
Prescribed student uniforms are gaining popularity, particularly in urban areas. Recognizing that attire can communicate a message entitled to First Amendment protection, courts nonetheless have found student uniform policies justified by substantial government interests unrelated to suppressing expression. Both restrictive Dress Codes and uniforms have been successfully defended to advance legitimate school objectives such as enhancing learning, reducing discipline problems, eliminating gang influences, decreasing socioeconomic tensions, increasing attendance, and improving the school climate. Courts have rejected parental assertions that prescribed student uniforms violate their Fourteenth Amendment right to direct the upbringing of their children or impair the First Amendment’s religion clauses. Also, the judiciary has not been persuaded that rights are violated because those who opt out of attire requirements are stigmatized or ridiculed by classmates.
Controversies over student attire are likely to persist into the foreseeable future as students continue to find new ways to offend school personnel through their dress and appearance. School boards would be wise to ensure that they have legitimate educational reasons before disciplining students for their appearance. Restrictions designed to ensure health, reduce violence and discipline problems, or improve learning have been upheld. Attire restrictions should not be imposed to suppress student expression or applied in a discriminatory fashion. Also, they should not place a burden on religious expression without a compelling justification. Additional litigation in this area seems assured, because the distinctions between legitimate restrictions and those that impair free expression rights are not always clear.
Courts will continue to be called upon to balance students’ rights to express views and receive information with educators’ obligations to maintain an appropriate educational environment. In the past decades, the controversial issues have reflected shifts in cultural tides. For example, student hair length is not the significant issue that it was in the 1970s. Many current conflicts between students and school personnel over the parameters of protected expression focus on students’ controversial postings to broad audiences via the Internet.
While Tinker has not been overturned, restrictions have been placed on when its disruption principle applies. The reach of Tinker was narrowed after the Supreme Court ruled in Fraser and Hazelwood that lewd and vulgar student speech and attire are not protected by the First Amendment and that public school authorities may censor student expression that represents the school. More recently, in Frederick, the Court clarified that student expression viewed by school authorities as promoting illegal activity may be the basis for disciplinary action. Nonetheless, the Tinker disruption standard recently appears to have been revitalized in cases addressing student expression rights in connection with Antiharassment Policies, postings on personal Web pages, and some attire restrictions. Moreover, students do not need to base claims solely on constitutional protections, as federal and state laws also protect students’ expression and association rights. The one certainty in the student expression arena is that judicial criteria applied in weighing the competing interests of students and school personnel will continue to be refined.
Martha M. McCarthy
See also Bethel School District No. 403 v. Fraser; Board of Education of Westside Community Schools v. Mergens; Equal Access Act; First Amendment; Hazelwood School District v. Kuhlmeier; Morse v. Frederick; Tinker v. Des Moines Independent Community School District
- Hannsepflug, A. (2005). The limits of freedom of speech for students in grades PK–8. Education Law Reporter, 198, 383–397.
- Lavorato, C., & Saunders, J. (2006). Public high school students, T-shirts and free speech: Untangling the knots. Education Law Reporter, 209, 1–15.
- McCarthy, M., Cambron-McCabe, N., & Thomas, S. (2004). Legal rights of teachers and students. Boston: Allyn & Bacon.
- Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
- Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990).
- Good News Club v. Milford Central School, 533 U.S. 98 (2002).
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- Morse v. Frederick, 127 S. Ct. 2618 (2007).
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
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