Free Speech Lawsuits Involving Public Schools

Public Schools and Free Speech Rights

Free speech rights in public elementary and secondary schools have undergone a remarkable transformation in the past 30 years, from nonexistence to a perpetual tension between those rights and the need for schools to control student behavior in order to preserve the sanctity of the learning environment. Today, it would be most accurate to say that public schools students have some First Amendment rights in schools, but certainly not as many as adults do in the real world. Although Tinker v. Des Moines Independent School District was the landmark case that set forth the standards which current student free speech cases are judged, the first case that suggested students had some First Amendment rights was decided much earlier -- during World War II, to be exact.

West Virginia State Board of Education v. Barnette

This 1943 case marked the first time the Supreme Court ever conceded students had First Amendment rights. During World War II, the West Virginia State Board of Education passed a law requiring all students to salute the flag and recite the Pledge of Allegiance. Several students and their parents who were members of the Jehovah's Witnesses challenged the policy, arguing their religion prevented them from swearing allegiance to anyone but God, and so they could not recite the Pledge of Allegiance. The Su preme Court decided the students were in the right, and on First Amendment grounds struck down the West Virginia ordinance as violating the right of free expression.

"Educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual," said the Court, "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." The Court determined that students had the right not to be coerced by school administrators to doing something that disagreed with their religious beliefs. Free speech in this case meant the right not to say something, in this case, the Pledge of Allegiance.

Tinker v. Des Moines Independent Community School District

After Barnette, the student First Amendment rights front was quiet in the courts, until the case of Tinker v. Des Moines Independent Community School District in 1969 shattered the peace and made sure there would be controversy for a long time to come. The Vietnam War was raging full force when the students at a Des Moines, Iowa, high school decided to wear black armbands to school one day to protest what they saw as an unjust struggle. The school administrators learned of their plan and passed a rule banning black armbands from the school and suspending any student caught wearing one. The students wore the armbands anyway, and as a result were suspended. They sued the school district.

In writing in favor of the students for the majority, Justice Abe Fortas wrote these iconic words: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate … School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect … In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

But Fortas added an important caveat: conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." In other words, not all student conduct is First Amendment protected, only that which does not disturb the classroom environment or invade the rights of others. This standard, also known as the "material and substantial disruption test," has basically remained the standard in which the school's right to prescribe free speech is examined at the secondary rank as well as at public colleges and universities.

After Tinker, a host of cases were brought at the lower court level litigating public school free speech issues. Many of these came down on the side of freedom of expression for students. Many lower courts found themselves asking, after Tinker, what student speech can in fact be regulated.

Bethel School District No. 403 v. Fraser

The Supreme Court finally attempted to set some limits on student First Amendment rights in the 1986 case of Bethel School District No. 403 v. Fraser . Matthew Fraser made a speech at an assembly full of obscenities and innuendoes. When school officials attempted to discipline him for his speech, he sued. The Supreme Court sided with the school.