1st Amendment of The Constitution

50 Years of Student Speech and the 1st Amendment: A Review

April 23, 2019 | Scott F. Johnson

February 24, 2019, marked the 50th anniversary of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), in which the United States Supreme Court established important First Amendment protections for student speech. In the Court’s words:

“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.” Id. at 506.

In Tinker, high school students wore black armbands to school to protest the Vietnam War. They were sent home and suspended until they agreed to come back without wearing them. The Court ruled that school officials could not punish the students for expressing their views, because there were not “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,” and the speech did not “impinge upon the rights of other students.” Id., 509, 513–14.

Tinker Remains the Beacon of 1st Amendment Protections for Student Speech

Over the years, lower courts have applied Tinker to more modern circumstances, such as online speech, threats by students against other students or school officials, and the display of Confederate flags at school.

Because of the “special circumstances” of public schools, which includes the obligation to maintain discipline and to provide a safe educational environment, lower courts generally find that Tinker’s requirements are met when the speech at issue involves threats of violence at school, or when it could cause violent reactions by other students at school. See, e.g., Bell v. Itawamba County. Sch. Bd., 799 F. 3d. 379 (5th Cir. 2015)(en banc) cert. denied, 136 S. Ct. 1166(2016); Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013); Barr v. Lafon, 538 F.3d 554, 568 (6th Cir. 2008).

Speech that is derogatory or harassing towards other students is also generally not protected. C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142 (9th Cir. 2016) cert. denied 137 S. Ct. 2117 (2017); Kowalski v. Berkeley County Schools, 652 F.3d 565, 567 (4th Cir. 2011) cert. denied 565 U.S. 1173 (2012).

However, speech espousing views on political or social issues is generally protected under Tinker. For example, courts have protected students’ rights to kneel in protest during the national anthem at high school sporting events and to express differing viewpoints on controversial issues like gun rights or abortion, even when the views may be offensive to some other students or school officials. See, e.g., V.A. v. San Pasqual Valley Unified School District, No. 17-cv-02471, 2017 WL 6541447 (S.D.CA. Dec. 21, 2017); Schoenecker v. Koopman, No. 18-C-0555, 2018 WL 5886011 *6  (E.D. Wisc. Nov. 9, 2018) K.D. v. Fillmore, No. 05–0336, 2005 WL 2175166 (W.D.N.Y. Sept.6, 2005).

Exceptions to Tinker

Over the last 50 years, the Supreme Court has also created a number of exceptions to Tinker based on the special circumstances of the school environment. These exceptions permit school officials to restrict certain types of speech even when Tinker’s requirements are not met.

Bethel School District v. Fraser

The exceptions started with Bethel School District v. Fraser, 478 U.S. 675, 682 (1986), where school officials disciplined a public high school student who gave a lewd speech full of sexual innuendos at a school assembly. The Court noted that while students have free speech rights at school, those rights are not "automatically coextensive with the rights of adults in other settings," and that certain speech which would be protected in other settings might not be protected in the public school setting. Id. at 682.

Cohen v. California

The Bethel Court used the Cohen v. California, 403 U.S. 15, 25 (1971), case as an example. In that case, the Court ruled that convicting a person for disturbing the peace for wearing a jacket with "F--k the Draft" (with the "F-word" spelled out) on the back during the Vietnam War violated the First Amendment, because government officials cannot punish speech just because they find it offensive.

By contrast, in Fraser, the Court noted that if a student had worn that same jacket from Cohen to school, school officials could discipline the student because schools have an obligation to teach students the "habits and manners of civility, and socially acceptable behavior." 478 U.S. at 682.

The Court in Bethel went on to uphold the student’s discipline for his lewd speech, noting that the obligation to teach students to be good citizens included the authority to "prohibit the use of vulgar and offensive terms in public discourse," and the speech at issue was "plainly offensive." Id. at 683, 685.

Two years later, the Court upheld a school principal’s decision to remove two articles that he felt were inappropriate from a school newspaper.

Hazelwood School District. v. Kuhlmeier

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). The Court in Hazelwood ruled that Tinker did not apply because 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.” Id. at 271. As a result, the Court ruled that school officials could restrict school-sponsored speech “so long as their actions are reasonably related to legitimate pedagogical concerns.” Id. at 273.

Morse v. Frederick

In 2007, the Court upheld a principal’s decision to confiscate a student-made “Bong Hits 4 Jesus" banner that students unveiled as the Olympic torch relay passed by the school. Morse v. Frederick, 551 U.S. 393 (2007). The principal believed that the banner promoted illegal drug use, so she ordered the students to take it down and disciplined a student who refused to cooperate. The Court said that the "rights of students must be applied in light of the special characteristics of the school environment," and school officials may "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." Id. at 397. The Court ruled that the principal could have reasonably viewed the banner as promoting illegal drug use, so her actions did not violate the First Amendment. Id. at 408.

Primary Legal Standards

Today, these four Supreme Court cases constitute the primary legal standards that apply to student speech.

One of the challenges for determining if student speech is protected or not is figuring out which case/standard applies to a given situation. The answer can vary depending on the circumstances, the content of the speech, and where the speech occurred.

For example, if a student calls a teacher a “douchebag” at school, the school will likely be able to discipline that student because the speech is not protected under Fraser. However, if that same student posts that the teacher is a “douchebag” on social media while at home, Tinker likely applies and the outcome is less certain. Compare Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir.2008) with J.S. v. Blue Mountain, 650 F.3d 915, 928 (3rd Cir. 2011)(en banc) cert. denied 132 S. Ct. 1097 (2012).

Looking Ahead: Online Speech Presents a Challenge

Student speech occurring online or on social media is one of the most prevalent areas of First Amendment challenges today. Most courts that have addressed the issue have applied Tinker, even if one of the exceptions would have applied if the speech occurred at school, and the results have been mixed. It will be interesting to see how the standards and cases evolve on this issue and others over the next 50 years.

The views expressed herein are the author’s, and do not necessarily reflect those of Purdue Global Law School, Purdue Global, or Purdue University. Learn more about Purdue Global Law School, the nation’s first fully online law school.

About The Author

Scott F. Johnson

Scott F. Johnson is a Professor of Law at Purdue Global Law School (formerly Concord Law School), where he teaches Education Law and Special Education Law, among other topics. He has written a number of books and articles in the education law area. Professor Johnson’s law practice included education and special education cases, and he currently serves as a special education hearing officer for a state agency.

The views expressed in this article are solely those of the author and do not represent the view of Purdue Global Law School.