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Free Speech Principles

Published December 2016

After an election there is always is a period of reflection on both sides. In recent weeks we have heard stories about students protesting the election. We have also heard stories of students intimidating other students because of national origin, political, religious, ethnic, and ideological or other views. If we look at our Constitution, we understand that the First Amendment provides that “Congress shall make no law … abridging the freedom of speech… .” This right is no less important than the right to vote. The Fourteenth Amendment extends this right to state governments, of which school systems are a part. However, the right to free speech is not without its limits and although we value free speech, we cannot lose sight of what those limits are.

Here are the top three “free speech” cases relating to students and their free speech rights, chronological order.

  1. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969). Absent either impingement on the rights of others or the likelihood of a substantial and material disruption at school, school officials may not regulate student speech at school. Id. However, school officials may regulate student speech is if the student speech impinges upon the rights of other students. Id.
  2. Lewd, indecent, objectively offensive speech by students may be regulated by school officials. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986). Thus, students can be disciplined for this offensive speech.
  3. School officials may regulate speech that appears to promote illegal or harmful activity. Morse v. Frederick, 127 S.Ct. 2618 (2007). In this case the activity was illegal drug use.

Another important free speech case to note is Hazelwood School Dist. v. Kulmeier, 484 U.S. 260, 108 S.Ct. 562 (1988). In Hazelwood the United States Supreme Court ruled that school officials may regulate content of articles in school newspaper as school-sponsored expressive activity. However, in Iowa shortly after Hazelwood was decided, the Iowa Legislature enacted Iowa Code section 280.22, which expressly provides for student exercise of free expression and gives public school students in Iowa the right to exercise freedom of speech, including the right of expression in official school publications, as long as the students do not express, publish, or distribute any of the following:

  1. Materials which are obscene.
  2. Materials which are libelous or slanderous under chapter 659.
  3. Materials which encourage students to do any of the following:

(1) Commit unlawful acts.
(2) Violate lawful school regulations.
(3) Cause the material and substantial disruption of the orderly operation of the school.

Developments in student free speech

  1. Gang symbols - Many states, including Iowa, have statutes authorizing school districts to adopt policies that prohibit the wearing of gang-related apparel or symbols. Such policies are not immune to successful court challenge, however. For example, in Stephenson v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997), an honor roll student successfully sued her district when she was told to remove a small cross tattoo from her hand on penalty of suspension with a recommendation for expulsion. The student showed that her body art preceded the district’s ban on the same by two years, and that it was not indicative of any gang affiliation. The Eighth Circuit Court of Appeals’ ruling in the student’s favor came down to a determination that the district’s policy was void for vagueness.
  2. “Cohen’s jacket” - While the case of Cohen v. California, 403 U.S. 15 (1971) is not a school case (indeed, it is a criminal appeal), it has given rise to the oft-used expression (used by Justice Burger in the Fraser case) that students have the right to “wear Tinker’s armband, but not Cohen’s jacket.”
    Paul Cohen, while walking through the halls of the Los Angeles County Courthouse, wore a jacket bearing the plainly visible words “F--- the Draft.” Cohen was convicted of “maliciously and willfully disturbing the peace … by offensive conduct.” The contrast of “Cohen’s jacket” against “Tinker’s armband” is not unflawed. However, the expression does offer a useful example of where public schools may draw the line regarding student expressive speech. Cohen’s jacket also presents a good example of “fighting words,” that is, speech (including symbolic speech) designed to provoke and disturb others to an extreme.
  3. See, e.g., Iowa Code § 279.58: “… The board of directors of a school district may adopt, for the district or for an individual school within the district, a dress code policy that prohibits students from wearing gang-related or other specific apparel if the board determines that the policy is necessary for the health, safety, or positive educational environment of students and staff in the school environment or for the appropriate discipline and operation of the school.”
    Amy Stephenson chose to undergo presumably painful removal of the tattoo so as not to miss any class time.
    Justice Harlan, writing for the majority (Cohen was a 6-3 decision), took pains to note that Cohen removed his jacket and folded it over his arm before he entered a courtroom (traffic court) in the building.
  4. Free speech vs. harassment - Recall that one exception in Tinker whereby school officials may regulate student speech is if the student speech impinges upon the rights of other students. Therein lies the tension at the heart of those T-shirts adorned with “demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students…that may cause them significant injury.” Harper v. Poway Unified School Dist., No. 04-1103 (S.D. Cal. 2/11/08).
    The Harper court allowed the school district to ban the Harper children’s T-shirts, which communicate negative messages toward homosexuality. The front of one shirt read, “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED.” The front of the second shirt read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED.” The backs of both shirts read, “HOMOSEXUALITY IS SHAMEFUL, Romans 1:27.” On remand from the Supreme Court, the 9th Circuit later found the issue was moot because the students were no longer students and qualified immunity applied to protect from liability those school officials sued in their individual capacities. The Court dismissed the case. Harper v. Poway Unified School Dist., 318 Fed.Appx. 540 (9th Cir. 2009).

In contrast, a different court ruled that a school district must allow a high school student to wear a T-shirt bearing the message “Be Happy, Not Gay.” Nuxoll v. Indian Prairie School Dist. #204, No. 08-1050 (7th Cir. 4/23/08).
These two cases were decided on different facts which may have impacted the courts analysis in each cases.
School districts must review each situation on a case-by-case basis before making a determination. These cases also demonstrate that balancing rights of free speech of students with protecting other students from offensive comments is tricky business. There are no “one size fits all” solutions.

Remember, care should be taken to address the concerns of every student that brings a concern forward. Administrators have the tough job of balancing the free speech rights of students and protecting students from harm. Students learning about the responsibilities of being part of a democracy and understanding their constitutional rights is a core tenet of the work educators do in schools. I know you are doing your best to continue to balance these rights and you will continue to preserve them for all of your students.
Here is Anti-Bullying and Harassment Information and Bullying and Harassment Resources.