The Schoolhouse Gate: Student Free Speech

assessing whether student speech is protected by the U.S. Constitution.

TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969)

This seminal case involved five students, including four Tinker siblings, who wore black armbands to school in protest of the Vietnam War. The Supreme Court recognized that students do indeed have constitutional rights during the school day. The Court also recognized the “special characteristics of the school environment” that may limit those rights. The standard birthed here judged student speech or expression by whether it “materially or substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.”

Wesley L. Nute, Jr., Senior Associate

It can hardly be argued that…students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” - Justice Fortas, Supreme Court of the United States (1969)

AThere is no escaping the spotlight on education in Texas and across the nation. Whether due to the synergies between social media and a growing crescendo of voices shouting their ideologies from their proverbial rooftops or due to some other cause, the responsibility of educators to assess student speech has increased even as schools grapple with employee speech and a more vocal contingent of parents. Certainly, our students are not sequestered from the hot topics of the day. Their technology-driven generational ethos is teeming with opportunities for them to join the fray. That same technology that affords students additional and greater platforms for sociopolitical engagement also gives them a vehicle for other controversial expression, including the potential for cyberbullying efforts outside of school that now tend to keep pace or even “improve” upon those oldschool, in-person bullying efforts school officials used to focus on almost exclusively.

Allow a refresher then: let’s take a walk down the decades-long student free speech jurisprudence to see if we can’t just stumble upon some best practices or critical considerations when

Justice Fortas, in his majority opinion, made clear that public schools could not prevent students from expressing an antiwar viewpoint that just happened to be out of step with the prevailing state wisdom. The classroom was instead to be a “marketplace of ideas.” We then have a case here that involved on-campus speech that did not cause disruption.

Students 1 – Schools 0.

BETHEL SCHOOL DISTRICT V. FRASER (1986)

While some time had passed since Tinker, the Court re-entered the chat for this case. Matthew Fraser, a high school student in the Bethel School District in Washington, was suspended for making a speech that included sexual innuendo at a school assembly. The Supreme Court ruled that the suspension did not violate Fraser’s First Amendment right to freedom of speech, thus limiting the Tinker analysis. The latter protected non-disruptive student speech, but the Fraser decision carved out an exception prohibiting sexually vulgar expression. Justice Burger, in the majority decision, essentially posits that parents and educators are not to turn over control of the American school system to students. To extrapolate, the Court simply believes that some things are just off limits for students.

Students 1 – Schools 1.

HAZELWOOD SCHOOL DISTRICT V. KUHLMEIER (1988)

The Spectrum, a student newspaper published at Hazelwood East High School in St. Louis Missouri, was to publish an article on students who had been pregnant, using false names to protect their identities. The principal omitted two pages of the story because he felt it was inappropriate. The students then filed a lawsuit. Perhaps surprisingly, the Supreme Court held that the principal was entitled to censor the articles because the school paper was never meant to be a public forum. In sum, because the student newspaper was school-sponsored speech, educators enjoyed a lesser burden than Tinker’s substantial disruption standard. Instead, educators just needed to show that their actions bore a reasonable relationship to legitimate educational concerns.

Students 1 – Schools 2.

MORSE V. FREDERICK (2007)

In this famous case, a principal suspended student Joseph Frederick after he displayed a banner across the street from the school reading “BONG HiTS 4 JESUS.” The Supreme Court held that the First Amendment does not prevent educators from suppressing student speech that promotes illegal drug use at or across the street from a schoolsupervised event. The speech promoted ideas not appropriate for the school setting; therefore, the school had discretion to limit it. This represents an illegal drug use exception to student speech in schools. Students 1 – Schools 3.

BELL V. ITAWAMBA CTY. SCH. BD. (5TH CIR. 2014)

In this case, a student recorded and posted a rap song with criticism of school coaches with cursing and threatening language. The student was suspended and expelled. There was little disruption on campus, but coaches testified to being fearful for their safety. The Court found in favor of the school, noting that the Tinker standard of “material and substantial disruption” could be used for off-campus speech. Even if a disruption did not actually occur, the administration could have reasonably anticipated a substantial disruption due to the threats, harassment, and intimidation of teachers. Students 1 – Schools 4.

MAHANOY AREA SCHOOL DISTRICT V. B.L. (2021)

This landmark decision brought Bell to its natural conclusion when a 10th grade student who was upset about only making the junior varsity cheer squad sent a Snapchat message to a group of friends flipping the bird and stating, “F*** school. F*** cheer. F***softball. F*** everything.” The message was sent outside of school time and to a private group, but somehow saw the light of day anyway. With the administration getting a hold of the message, the school removed the student from the cheer squad. A lawsuit ensued, and the Supreme Court eventually decided something extraordinary: school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study.

To be clear, the justices concluded that the student in this case uttered a few swear words which did not rise to the definition of disruptive behavior. The student’s speech was criticizing the administration and school rules, which is exactly the type of speech the Constitution was intended to protect. While the disruption in this case was minimal, the Court here produced a major carveout for off campus and/or online student speech that is materially disruptive per Tinker. Students 2 –Schools 4.

TAKEAWAYS FOR OUT-OFSCHOOL SPEECH

While student speech is generally well protected, we note the Supreme Court has highlighted several exceptions—declining to protect speech that includes sexual innuendo, allowing for greater censorship for school-sponsored speech like a student newspaper, and excepting the promotion of illicit drug use from protection as well. The Court further stretches the long arm of the public school district to punish student speech that takes place off campus and yet still results in a substantial disruption on campus, whether actual or anticipated.

With these parameters in mind, before issuing disciplinary action or extracurricular consequences for out of school speech, determine:

• Would the student’s speech or expression be deemed substantially disruptive if it took place on campus?

• Did the student speech encourage or reflect illegal conduct?

• Did the speech constitute a direct threat against the school or school officials?

• Is the purported speech actually just conduct subject to the traditional considerations of student discipline rather than speech or expression?

If all else fails as you navigate this analysis, please contact your school attorney for additional guidance.