How much and which types of free speech and expression rights students in public schools and colleges have has been an issue of much contention, both publicly and in the courts. Generally, parents and administrators are cautious about allowing students to have the same free speech and expression rights as adults, suggesting that full freedom would lead to chaos and a hazardous educational climate. Civil liberties advocates, however, assert that students are citizens of the United States and, therefore, are deserving–with few limitations–of the same basic rights as adult citizens.
The U.S. Supreme Court heard the first school free speech case during the Vietnam War era. In 1969, the Court set a precedent with its ruling in the case Tinker v. Des Moines Independent Community School District. In this case, John Tinker (age 15), MaryBeth Tinker (age 13), and Christopher Eckhardt (age 16) wore black armbands to school as a means of protesting U.S. involvement in the war. Their action was in violation of a recently adopted school district policy prohibiting armbands. The students were sent home from school. Their families then filed suit, alleging the district’s policy infringed on the students’ free speech rights. The Supreme Court ruled in favor of the students, and issued the now famous line that students and teachers do not “shed their constitutional rights to free expression at the schoolhouse gate.” Justice Abe Fortas expressed concern that schools were becoming too totalitarian. Many school officials were upset with this decision, which they saw as inviting problems and perhaps even violence.
The Supreme Court heard another important free speech case in 1986. In this case, Matthew Fraser gave a speech at an official school assembly nominating his friend for high school student council. The speech was full of sexually provocative double entendres, in which Fraser compared his friend to a penis. Approximately 600 students, some as young as age 14, attended the assembly, and many began hooting, making gestures simulating masturbation and sexual intercourse. The following day, the principal suspended Fraser for violating the district’s rules on obscene or profane language and gestures. Fraser was given a hearing, per the Supreme Court’s decision in Goss v. Lopez, and his two-day suspension was affirmed. The Supreme Court ruled in favor of the school, maintaining that students can learn only in a disciplined atmosphere. Because the event in question was a school-sponsored assembly, the school was allowed to limit Fraser’s right to free speech. In this ruling, the Court drew on previous decisions [i.e., Ginsberg v. New York (1968), Board of Education v. Pico (1982)] to determine that the state had a legitimate interest in protecting students from sexually explicit, vulgar, offensive, or violent speech.
In 2007, the Court heard what was called the “most significant student free-speech conflict.” Although, like Tinker, the 2007 case addressed protest speech, the protest led by Joseph Frederick was far different than that mounted by the Tinkers and Eckhardt. Frederick unleashed a 14-foot banner with the phrase “Bong Hits 4 Jesus” during an Olympic torch event in Juneau, Alaska, on January 24, 2002. According to reports, Frederick’s aim was to get under the skin of his principal, Deborah Morse, and to get on television. Frederick had an ongoing feud with Morse, who had previously called the police when he refused to move from a commons area where he was reading and who reprimanded him when he refused to stand for the Pledge of Allegiance.
Morse saw the banner at the event, which was not held on school property, and confiscated it. She also suspended Frederick for 10 days. Frederick and his family filed suit, with the support of the American Civil Liberties Union (ACLU) and a host of other organizations, both liberal and conservative. The school district was represented by Kenneth W. Starr, who had become famous for his investigation of former President Bill Clinton. The district maintained that Frederick’s banner encouraged marijuana use, which was obviously prohibited by school rules. Frederick maintained he was not trying to advocate drug use or even a particular message at all. Rather, he was trying to test the district’s adherence to a student’s right to free speech. The school district even admitted that Frederick’s banner created no real disturbance at the torch event. School administrators disagreed, however, that the event was school sponsored. They claimed it was school sanctioned, given that the entire student body had been released to attend and that the school’s cheerleaders and band performed at the event. The Supreme Court ruled in 2007 that Frederick’s action were unprotected speech.
The ACLU regularly represents students involved in free speech challenges. For instance, in 2002, the group negotiated with a Massachusetts school district to end the punishment for a student who had held up a protest sign at a school talent show. It has supported students who were suspended for taking part in the Vagina Monologues play, and a student who sang a song about God at a school talent show, among other issues.
At the college level, one of the most recent issues to emerge regarding free speech has been the controversy over policies intended to limit racially or sexually offensive speech. For instance, the University of Michigan developed its policy on discrimination and discriminatory harassment in 1988 after several incidents of racial harassment on campus. Someone had distributed a flyer around Ann Arbor declaring “open season” on “saucer lips, porch monkeys, and jigaboos”–racially offensive terms for African Americans. A campus radio station allowed the broadcast of a racially offensive joke, and a Ku Klux Klan uniform was displayed outside a dorm window. The University of Michigan policy prohibited behavior that “stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-veteran status, and/or … that creates an intimidating, hostile, or demeaning environment for educational pursuits.” A graduate student challenged this policy, arguing that it limited his right to discuss controversial theories abut biological differences. The courts agreed with this student, striking down the university’s policy as overly broad.
Although schools and campuses are concerned that provocative speech can incite violence, they also worry that too many limitations might prompt revolts. More likely, however, is the prospect that excessive limitations on speech will lead to apathy. Recent research has demonstrated that few students are knowledgeable about their First Amendment rights. Critics maintain that this lack of awareness arises because school districts fail to teach students about these important issues and, even more, because they do not practice them. The consequences are disastrous, say critics, because students who do not know about or think about their rights will become adults who do not question inappropriate and unconstitutional limitations on the First Amendment.
- ACLU. Your Right to Free Expression (2003). Retrieved from http://www.aclu.org/free-speech/your-right-free-expression
- Barnes, R. (2007, March 13). Justices to hear landmark free-speech case. Washington
- Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2007/03/12/AR2007031201699.html
- Dautrich, K., & Yalof, D. (2008). The future of the First Amendment: The digital media, civic education, and free expression rights in America’s high schools. Lanham, MD: Rowman & Littlefield.
- Hudson, D. (2009, April 22). Hate speech and campus speech codes. First Amendment Center. Retrieved from http://www.firstamendmentcenter.org/hate-speech-campus-speech-codes
- McMasters, P. (2005, June 5). When school grounds become free-speech battlegrounds. First Amendment Center. Retrieved from http://www.firstamendmentcenter.org/when-school-grounds-become-free-speech-battlegrounds