What are the free expression rights of students in public schools under the First Amendment?

Our Op-Ed page features an article which opines that school administration (and school administrators) should have no control over the content of student publications under the auspices of free speech.  Principals argue that school publications are curricular activities and thus subject to an increased level of control.  In a contrasting essay, I’d like to illustrate the Supreme Court decisions that led to the level of control that principals have over student publications.

For years, student journalists were protected by a high standard of freedom of expression based on the Supreme Court’s historic 1969 ruling in the Tinker case, in which the Court ruled that school officials couldn’t prevent students from expressing their opinions on school grounds, as long as they didn’t (a) cause a material or substantial disruption of the school environment, or (b) intrude on the rights of others.

From that decision, most courts supported the idea of allowing students a high degree of protection from interference by school administrators under the First Amendment.  That changed in 1988.

In January 1988, the Supreme Court, in a narrow 5-3 vote, ruled that the principal of Hazelwood East High School was justified in censoring a series of articles in his school’s newspaper, The Spectrum.

In their ruling of Hazelwood v. Kuhlmeier, the Supreme Court established a new standard when reading student publications, by ruling that schools may limit them if their speech “can be perceived to bear the imprimatur of the school.”  Writing for the majority, Justice Byron White said “censorship of school-sponsored student expression is permissible when school officials can show that it is reasonably related to legitimate pedagogical concerns.” In 1988, the Supreme Court voted 5-3 to reverse the decision of a lower court, which had upheld the first amendment rights of the students.  The Court ruled that the high school principal had the right to censor articles in the student newspaper that were considered to have “strayed from the school’s educational mission.”

Where past decisions from the Supreme Court (Tinker) allowed students more liberty, this new opinion in Hazelwood reins in Tinker and allows school administrators the ability to decide when student publications have strayed from the school’s educational mission.

The Supreme Court began its opinion by citing Tinker’s basic premise that students “do not shed their constitutional rights to freedom of speech or expression at the school house gate.” But the Court then changed that position by citing another, less restrictive decision, Bethel vs. Fraser: “A school need not tolerate student speech that is inconsistent with its basic educational mission.”

The Court said schools could censor any student publication judged “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences,” or any expression that advocates “conduct otherwise inconsistent with the shared values of the civilized social order.”

Here’s the key phrase: “Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”

The Court, in Hazelwood, found it was “not unreasonable” for the principal to have concluded that “frank talk” by students about their sexual histories and the use of birth control, even though their comments were not graphic, was “inappropriate in a school-sponsored publication distributed to 14-year-old freshmen.”

The majority opinion wrote, “A school must be able to set high standards for the student speech that is disseminated under its auspices—standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the ‘real’ world — and may refuse to disseminate student speech that does not meet those standards.”

“In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting.”

Therein lies the dichotomy…do we allow student publications the freedom under the First Amendment to write on a wide variety of topics, or do we examine these writings based on the standard that school administrators would apply…that is, to judge the appropriateness of student writings based on the mission of the school, or the audience that these writings are intended to reach. I’m sure that The Knightly News staff would argue the former, and school administrators the latter. One other thing is sure…I’ll be reading…and making decisions based on our mission, our values as a school, and some common sense.

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