Free Speech Lawsuits Involving Public Schools

The Court found that Fraser had failed the "substantial disorder" part of the Tinker test. Chief Justice Warren Berger, writing for the majority, said that schools have a responsibility to instill students with "habits and manners of civility as values." The effect of Fraser's speech, suggested Berger, was to undermine this responsibility; therefore, he did not receive First Amendment protection for it. Not only can schools take into account whether speech is offensive to other students, said Berger, "the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior." Bethel served notice that the Supreme Court saw limitations on student free speech rights. The next big school First Amendment case decided by the court served to emphasize that point.

Hazelwood School District v. Kuhlmeier

The school newspaper at Hazelwood East High School in Missouri was courting controversy when it decided to publish an article on pregnancy among students naming names, as well as an article on students of divorced parents. The principal of the school censored both articles from the school paper. The student editors of the newspaper sued.

In 1988, the Supreme Court handed down its decision: a complete defeat for the students. The majority of the court claimed Tinker did not apply to this case, since the school newspaper was a school-sponsored activity. According to the Court, when an activity is school sponsored, school officials may censor speech as long as such censorship is reasonably related to legitimate educational concerns. The Court went on to define these concerns broadly, stating that school officials would have the right to censor material that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences, or inconsistent with shared values of a civilized social order."

Hazelwood did distinguish between school-sponsored publications and other activities, and publications and activities that were not school sponsored, which the Court suggested would be given greater free-speech leeway. Nevertheless, the Hazelwood decision was clearly a defeat for student free speech rights. School officials were now allowed to censor school newspapers, as well as other school sponsored activities such as theatrical productions, in "any reasonable manner."

Elementary and Secondary Student Rights Since Hazelwood

Since Hazelwood, the Supreme Court has not tackled a non-religious free speech issue involving a public elementary or high school. Lower courts that have dealt with these issues have tended to follow Hazelwood's ruling pretty closely: a if a free speech case involves a school sponsored activity, school officials are given wide latitude. Since all but a few student free speech cases involve a school-sponsored activity, the effect has been that most free speech cases have gone against students, with some minor exceptions.

Lower courts have also determined that school officials have broad discretion at the elementary school level in controlling student speech, ruling in several cases that Tinker does not apply. However, most legal commentators believe that despite these developments, Tinker still remains in force, at least for high school students. School administrators are still required to show "material and substantial disruption" before limiting student speech in non-school sponsored activities.