STUDENT FREE SPEECH AND EXPRESSION
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
A. Primary Sources
1. Constitutional Amendments
2. Federal Statutes
3. Case Law
United States Code Section 1983creates liability for both
government entities and individual state employees who violate citizens
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
b. United States Court of Appeals and District Courts
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
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.
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.
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.
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.
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
of Education of Westside Community Schools v. Mergens, 496 U.S.
226 (1990), upheld the constitutionality of the "Equal Access Act."
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.
B. Secondary Sources
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.
III. Interdisciplinary Information Sources
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",
Brooklyn L. Rev 291, (Winter, 1989)
BACK TO THE TOP
If you have comments or suggestions, email me at firstname.lastname@example.org
Johnson, John H., The Struggle for Student Rights: Tinker
v. Des Moines and the 1960s, University Press of Kansas, (Lawrence,
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.
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