STUDENT FREE SPEECH AND EXPRESSION

I. Introduction:

As a practicing public school administrator, I am continually faced with situations in which I must evaluate student misbehavior and assess the appropriate consequences.  As one might expect, students frequently find grounds to differ with my evaluation of the situation.  The explanations students offer for their actions are many and varied, but one of the favored defenses is "I was just exercising my right to free speech!  You can't punish me for that!"  A sound understanding of how the free speech and expression principles of the First Amendment apply to students in a public school setting is essential to any administrator who intends on doing his or her job effectively and staying out of court.  This pathfinder will explore some primary, secondary, and interdisciplinary sources that will help the school administrator enforce discipline policy while maintaining a proper respect and understanding for the important constitutional principle of free speech and expression.
 
 

II. Legal Information Sources

A. Primary Sources

1. Constitutional Amendments

• The First Amendment of the United States Constitutionprohibits Congress from denying citizens certain rights, among them being the rights of free speech, press, and association.
• The Fourteenth Amendment of the United States Constitution applies the Bill of Rights to the states, and therefore the public schools, which are subdivisions of state government.

• 42 United States Code Section 1983creates liability for both government entities and individual state employees who violate citizens constitutional rights.
• 20 United States Code Sections 4071-4074, commonly known as the "Equal Access Act", makes it illegal for schools that operate an open forum to discriminate against student groups by denying equal access to facilities or funding based upon the content of their speech.

a. The Supreme Court

• West Virginia St. Brd. v. Barnette, 319 U.S. 624 (1943), "Pledge of Allegiance" case in which Quaker students objected to saying the pledge on religious grounds.  Though it began as a free exercise case, the Supreme Court treated it as a free speech case, holding that to require a student to stand and recite an oath of allegiance violated the First Amendment.
• Tinker v. Des Moines, 393 U.S. 503 (1969), landmark "black armband" case in which Supreme Court, stating that students do not "shed their constitutional rights at the schoolhouse gate," held that student expression that does not "materially or substantially" disrupt school business or interfere with the rights of others is protected by the First Amendment.
• Bd. of Education of Island Trees v. Pico, 457 U.S. 853 (1982), suggested that  First Amendment free speech right include the right to receive information, holding that school boards must have educationally sound reasons to remove books from school libraries.
• Bethel v. Fraser, U.S.    (1986), began to chip away at the Tinker standard, holding that schools could regulate student speech that is vulgar or lewd.
• Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) added to the school's discretion in quashing student speech, holding that schools could censor a school newspaper so long as there was a purpose for doing so that is reasonably related to pedagogical concerns.
• Healy v. James, 408 U.S. 169 (1972), ruled that a public university had violated students' First Amendment rights by refusing to recognize a campus chapter of Students for a Democratic Society due to disagreement with their political philosophy.
• Bd. of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), upheld the constitutionality of the "Equal Access Act."
• Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995), held that public universities could not deny funding to student groups based solely upon the content of their speech.

• Gay and Lesbian Bisexual Alliance v. Pryor, 917 F. Supp. 1557 (7th Circuit 1997), held that state law barring the formation of any student groups at public universities who might urge repeal or violation of the state sodomy laws was unconstitutional.
• Fricke v. Lynch, 491 F. Supp. 381 (1980), district judge held that a public high school had violated a student's right to free speech by barring him from attending the prom with a same sex escort.

• Legal Encyclopedia, 78A C.J.S. Section 790
• Sarke, Dena M.  "Coed Naked Constitutional Law: the Benefits and Harms of Uniform Dress Requirements in the Public Schools",  78 B.U.L. 153 (February, 1998)
• Wilborn, S. Elizabeth, "Teaching the New Three Rs -- Repression, Rights, and Respect: A Primer of Student Speech Activities", 37 B.C. L. Rev. 119 (December, 1995)
• Bryks, Helene, "A Lesson in School Censorship: Hazelwood v. Kuhlmeier", 55 Brooklyn L. Rev 291, (Winter, 1989)

• Johnson, John H., The Struggle for Student Rights:  Tinker v. Des Moines and the 1960s, University Press of Kansas, (Lawrence, KS, 1997)
• Kirp, David L., Levin, Betsy, and Yudof, Mark G., Educational Policy and the Law, 3rd Edition, West Publishing Co., (St. Paul, MN, 1992)
• Kemerer, Frank and Walsh, Jim, The Educator's Guide to Texas School Law, 4th Edition, University of Texas Press, (Austin, TX, 1996)
• The Texas School Administrator's Legal Digest, published by Frank Kemerer, Jim Walsh, and Eric Shulze.

If you have comments or suggestions, email me at blackw@cfbisd.edu

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