Tinker v. Des Moines Independent Community School District (1969)

Select the Tinker v. Des Moines Independent Community School District synopsis page for details.

In an effort to protest the hostilities in Vietnam and voice their support for a truce, a few students decided to wear black armbands to school as a symbol of their views. Once aware of this plan, the principals of these schools adopted a policy that anyone wearing an armband would be asked to remove it—and if they refused, they would be suspended.

Needless to say, these students were suspended. They filed a lawsuit claiming that the school violated their First Amendment rights, but the district court dismissed the lawsuit, saying the school officials acted reasonably to prevent disturbance of the school's operations. A review by the Eighth Circuit U.S. Court of Appeals resulted in an evenly divided court, and the district court decision was affirmed without opinion.

The U.S. Supreme Court then heard the case. It ruled that a student in public school (including on the playing field or in the cafeteria) may express "opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfering with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others" (Tinker v. Des Moines Independent Community School District, 1969). This standard is now simply known as the substantial and material disruption test.

Bethel School District No. 403 v. Fraser (1986)

Select the Bethel School District No. 403 v. Fraser synopsis page for details.

The Supreme Court took a break from school speech issues for about 17 years until it took up the case of Matthew Fraser. Fraser decided to give a nomination speech for a friend who was running for student government. At an assembly in front of nearly the entire school, Fraser referred to his candidate using sustained sexual innuendo.

Justice Brennan quoted Fraser’s speech in his concurrence:

I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most … of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. Jeff is a man who will go to the very end—even the climax, for each and every one of you. (Bethel School District No. 403 v. Fraser, 1986)

The next day, Fraser was suspended for three days and had his name removed from a list of potential graduation speakers (school officials undoubtedly fearing his rhetorical style might re-emerge before a group of parents, grandparents, and city officials). So he sued on First Amendment grounds.

Distinguishing this case from Tinker v. Des Moines Independent Community School District (1969), Fraser's speech was found to be unrelated to any political viewpoint. The Court ruled that when a student is speaking in a school forum, such as an assembly, school officials may enforce appropriate decorum and punish sexually oriented speech unsuitable for young people in the audience.

Hazelwood School District v. Kuhlmeier (1988)

Select the Hazelwood School District v. Kuhlmeier synopsis page for details.

Just two years later, the Supreme Court revisited school speech with a case involving the school newspaper at Hazelwood East High School near St. Louis. As the final newspaper of the school year was about to go to press, the school's principal removed two pages containing articles about teen pregnancy and the effect of divorce on children. The article on pregnancy included interviews with three unnamed Hazelwood High students. The article on divorce quoted students who complained about the behavior of their parents after they split up. The principal defended his decision to censor on the basis of privacy (fear that the pregnant students might somehow be discovered) and, in the case of the divorce story, editorial balance (because the fathers who were criticized for not spending enough time with their children were not interviewed).

It is important to note that the newspaper was published as a part of a journalism class in the high school, rather than as a stand-alone activity.

The court found that the school newspaper was not a traditional public forum and that "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" (Hazelwood School District v. Kuhlmeier, 1988). Clearly, that ruling can reach into other school-sponsored expressive activities, such as yearbooks, school plays, and so on.

Morse v. Frederick (2007)

Select the Morse v. Frederick synopsis page for details.

The Supreme Court then went into hibernation on school-speech issues for the next 19 years—that is, until Joseph Frederick, a senior at Juneau-Douglas High School in Alaska, thought it would be fun (and an easy way to get on television) to unfurl a large banner that read "Bong Hits 4 Jesus" just as the Olympic torch relay passed by.

Principal Deborah Morse wasn't as easily amused as Mr. Frederick. She confiscated the banner, crumpled it up, and suspended the student for 10 days. She found the message to be contrary to the school's "basic educational mission to promote a healthy, drug-free lifestyle" (Morse v. Frederick, 2007).

In June 2007, Chief Justice John Roberts assembled a coalition of five votes (among his fellow justices) to rule that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use" (Morse v. Frederick, 393, 422, 2007).

In short, "Bong Hits 4 Jesus" was viewed as a pro-drug message. Justices Alito and Kennedy joined the opinion but only "on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) the decision provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use'" (Morse v. Frederick, 2007).

Equally interesting was Justice Clarence Thomas's opinion. Thomas joined the opinion in Morse v. Frederick, but only because he believed that Tinker v. Des Moines Independent Community School District should be overruled. In his view, as he made clear in the opinion, "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools" (Morse v. Frederick, 411, 2007).

He traced the history of public schools and found that "to meet their educational objectives, schools required absolute obedience." And that "Tinker effected a sea change in students' speech rights, extending them well beyond traditional bounds" (Morse v. Frederick, 416, 2007).

This was the first school-speech case that Justice Thomas participated in, so we now have some understanding of where he comes down on speech in the public schools: He doesn't believe that students have First Amendment rights.

The big question today in school speech cases is just what authority school officials have over speech that is created outside of school hours, such as on the student's home computer. More and more cases are working through the courts on this very issue, and the results are varied. So far, the Supreme Court has declined to hear any cases on the topic.

For further understanding of this issue, you should read the case synopses of Layshock v. Hermitage School District and Kowalski v. Berkeley County Schools.

Mahanoy Area School District v. B.L. (2021)

Frustrated at not making the Mahanoy Area High School varsity cheerleading team, Brandi Levy posted two photos to Snapchat in which she and a friend raised their middle fingers, a lewd gesture. The captions included "Fuck cheer," "fuck school," and "fuck everything." Importantly, Levy made the post on her own cell phone while she was with a friend at a convenience store on a weekend. About 250 people saw the photos, including students at the school who showed them to the cheerleading coach.

Levy was suspended from the Mahanoy City, Pennsylvania, school’s varsity cheer team for an additional year because the coach said her post violated team rules and school rules. Levy’s parents sued claiming the punishment violated her First Amendment rights.

The case made it to the U.S. Supreme Court, which ruled in favor of the cheerleader. The rule in the majority opinion written by Justice Breyer is rather long and lists circumstances in which schools could punish off-campus speech in dicta. But most of the time, the court said, schools cannot reach off-campus speech.

Here is the pertinent part of the opinion:

The special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off campus. Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

But three features of off-campus speech often, even if not always, distinguish school efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. (Mahanoy Area School District v. B.L., 2021)

More information on Mahanoy Area School District v. B.L. and the full opinion are available at Mahanoy Area School District v. B.L. | Oyez.