Freedom of Speech in Schools

When I was growing up, my teachers taught me the Bill of Rights as if it was black and white. You had a certain amount of rights and they could never, ever be violated by anyone. However, there is actually more gray area than that. It is certainly not true that you forfeit all of your rights when you walk into to school (as a student or teacher), but instead there is a bit of ambiguity. Depending on the manner of speech, the time and place you present it in, and your position in the school, your rights may or may not be protected. While it would be inaccurate to post a warning sign outside of the school door informing all who enter that they will leave their rights behind, it may be more accurate to post one stating, “Proceed with Caution!” Beyond the school context, not all speech is protected. Speech that has a high societal/individual interest and low state interest (such as political speeches) has the most amount of protection. Speech with low societal/individual interest and high state interest (obscenity, defamation, fighting words, etc.) has the least amount of protection. The state can also impose time, place, and manner restrictions on speech (for instance, limiting the volume of a speech). In general, you don’t have the right to say whatever you want, whenever you want. However, the government has to have a legitimate interest in what you’re saying or how you’re saying it in order to restrict you. Along with these general limitations on restricting speech, school is a “special” environment (according to Fraser) and therefore can have special considerations when it comes to constitutional protections. First, it is not a public space, but more of a non-public space because generally it is not open to the public. On certain occasions it can be considered a designated public space (for instance, if the auditorium was open for the public to perform in) and would have slightly more protection, but usually it is not afforded the same protections as a public forum. Second, regardless of whether or not a school is a public space, there are certain restrictions a school must put on its students’ and teachers’ speech because of its “need to maintain order and execute its mission.” For instance, in New Jersey v. T.L.O, the courts decided that prohibiting schools from regulating pro-drug speech would interfere with their “important – indeed, perhaps compelling” interest in teaching the dangers of drug abuse. Without being able to restrict certain speech, a school would not be able to fulfill its prescribed duties.
Once we’ve established that school is a “special” environment (and does not automatically provide the same protections as the general public), it is clear that students and teachers should be considered differently in the context of their rights in school. Students are forced to be there, so it is not acceptable to force them into a situation and then strip them completely of their rights. Teachers, on the other hand, voluntarily sign up to be in school, so it is more acceptable to make it a condition of the job that some of their rights would not be protected. Also, teachers (but not students) are acting as an arm of the state. This designation carries a certain amount of responsibilities and expectations that trump the rights they would have if they were truly private citizens. This is similar to how public citizens have less protection against defamation than private citizens do.
In determining whether student speech can be restricted, courts generally refer to two main cases. First, in Tinker vs. Des Moines Independent School District, the courts limited a school’s ability to restrict or censor student speech. When a school made a specific dress code policy prohibiting students from wearing black armbands to protest the Vietnam War, the court decided that this was a content-specific restriction and therefore was not allowed. Censoring a specific message simply because a school doesn’t agree with it is a violation of the freedom of speech. However, a school can restrict speech if it causes (or there is a reasonable expectation that it would cause) a material and/or substantial disruption. This case set in place a standard the court could choose to apply to further cases (especially in regard to religious speech and protests against the school). This “Tinker Test” requires that a restriction must be content neutral, serve a legitimate governmental purpose, be “narrowly tailored” (not be overly restricting), and allow for an alternative way for the message to reach the intended audience.
The other case that courts generally consider when it comes to student speech is Hazelwood School District v. Kuhlmeier. In this case, a school newspaper teacher rejected two stories from running in the paper. He found a story about teen pregnancy to be age-inappropriate and having privacy concerns and considered a story about divorce to be too personal. This case brought up issues about how much freedom students had in school-sponsored speech. The court of appeals argued that the newspaper was a public forum for the students to express their viewpoints and therefore, it cannot be censored in this way.
However, the Supreme Court disagreed and said that because the newspaper was part of the curriculum and that it was well-established that the teacher and principal reviewed it before it was published, this was not a public forum. Because it was funded by the school and with the school’s name on it, it is reasonable to see anything the newspaper publishes as being endorsed by the school. Therefore the school should have the right to restrict what the newspaper publishes if they have a legitimate reason for doing so (as this teacher did). From this case, a standard has emerged that if a school is sponsoring a student’s expression and has an educational purpose for regulating that expression, it can.
These cases leave the court with a pathway to handle decisions regarding student freedom of speech and help us clear up some of the ambiguity that develops when students enter the schoolhouse gate. If the speech was clearly not school-sponsored (and no one could think the school endorsed the message), then the Tinker Test would be used to determine if the restriction on it was a violation of the student’s rights. If it could be considered school-sponsored, the court has to determine if the place in which the speech occurred was respected as a public forum. If they determine it is a public forum, then the Tinker Test applies. If it is not, then the Hazelwood standard applies.
Where this seemingly clear path gets a little messy is when the speech occurs off campus. School cannot generally restrict what a student does off campus unless it directly impacts the school. For instance, in Kline v. Smith, it was declared a violation to punish a student for flipping off a teacher off campus because there was no real impact on the school. However, if the speech is significantly disruptive to the school’s mission (like “Bong Hits 4 Jesus” in Morris v. Frederick) then it can be regulated. Obscenity, threats, and fighting words are generally never protected (Pyle v. South Hadley and Lavine v. Blaine School District).
Another way that the area of student freedom of speech gets muddied is with the topic of qualified immunity. Certain individuals (state officials) can be granted immunity when it comes to violating a student’s rights if they didn’t know they were violating the rights at the time they did it. In other words, if a principal was not intentionally violating a student’s freedom of speech but they had to make a snap decision that was ultimately unconstitutional, the court will side with the principal. This is what happened in Morris, and it allows schools to operate a little more freely without having to always act in fear of violating the Constitution. While students’ rights are often a gray area, teachers’ rights seem to be a bit clearer. By the nature of their position as “state officials”, teachers’ speech is protected much less than students. However, a school cannot prohibit a teacher from speaking their mind in matters of public concern or participating in political activities outside of school (Keyishian v. Board of Regents and Castle v. Colonial School District). If the court determines a teacher’s speech was a matter of public concern, then it has some limited protection (Pickering v. Board of Education). It should be noted that “public concern” refers to the content of the speech, not the place of its delivery (Givhan v. Western Line Consolidated School District). Teachers have the right to speak about public affairs on their own time (for instance, writing a letter to the editor supporting gay marriage) as long as the speech does not cause a significant disruption in school (or in work relationships – Montle v. Westwood Heights School District). However, that’s about where the protection stops. If the teacher is not speaking on a matter of public concern, teacher speech is not protected (outside of due process). If he/she is speaking as a public official (for instance, in the classroom), then he/she is not protected (Garcetti v. Ceballos). Teachers (in k-12) also do not have total “academic freedom” and their curricular choices/speech are not protected (Cary v. Board of Education of Adams-Arapahoe School District and Millikan v. Board of Directors of Everett School District). Teachers’ morality (or the public perception of it) is also not protected because of the nature of their job (unless an issue of privacy is evoked). Generally, teacher expression is less protected than student speech. While there are certainly many issues to be resolved (like expression over the internet), the court has resolved many of the basic issues that students and teachers need to consider when evaluating their freedom of speech.