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Copyright by
BRENDEN DOUGHERTY
2010
All Rights Reserved

To my parents:
For their unconditional faith in me
!

TABLE OF CONTENTS
Chapter
I. CHASE HAPER AND THE FIGHT FOR FREEDOM OF EXPRESSION . . 1
The Law of Student Speech . . . . . . . . . . . . . . 6
Pure Student Speech . . . . . . . . . . . . . . 6
Tinker : The Landmark for Student Speech . . . . . . . . 7
Bethel : The Court Strikes Down “Lewd” and “Indecent” Speech . . . 14
Morse : The Court Strikes Down Drug Speech . . . . . . . 21
School Sponsored Student Speech . . . . . . . . . . . 27
Hazelwood : “Legitimate Pedagogical Concerns” . . . . . . . 27
The Legacy of Hazelwood . . . . . . . . . . . . 32
Harper v. Poway Unified School District . . . . . . . . . . 38
District Court Decision . . . . . . . . . . . . . . 38
Ninth Circuit Court of Appeals Decision . . . . . . . . . 40
II. TINKER : THE FLAWED STUDENT SPEECH STANDARD . . . . . 43
“Rights of Others:” A Flawed Test . . . . . . . . . . . . 43
Not the Determinate Test Within Tinker . . . . . . . . . . 45
An Ambiguous Test . . . . . . . . . . . . . . 47
An Impending Snowball Effect . . . . . . . . . . . . 51
“Substantial Disruption:” A Flawed Test . . . . . . . . . . 55
An Ambiguous Test . . . . . . . . . . . . . . 55
Ambiguity Allows for Anticipation . . . . . . . . . . . 56
Ambiguity Allows for Over Breadth . . . . . . . . . . . 63
Unfit For the 21 st Century . . . . . . . . . . . . . 69
III. A NEW APPROACH TO STUDENT SPEECH . . . . . . . . . 77
The First Prong: Is the Speech Worthy of Protection? . . . . . . . 78
Age Inappropriate. . . . . . . . . . . . . . . . 79
Graphic Sexual Content or Images . . . . . . . . . . 81
Harassment or Speech that Targets an Individual Student . . . . . 85
“True” Threats . . . . . . . . . . . . . . . . 88
The Second Prong: Does the Speech Poison the Learning Environment? . . . 92
Educating the Student Citizen . . . . . . . . . . . . 92
“Poisoning” the Learning Environment . . . . . . . . . . 96
Possible Objections to the Poisoning Standard . . . . . . . . . 98
An Application of the Poisoning Standard . . . . . . . . . . 106 !

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CHAPTER ONE:
CHASE HARPER AND THE FIGHT FOR FREEDOM OF EXPRESSION
!
Poway High School, located in Southern California, has served as a forum for particularly contentious debates over the last decade with regard to the acceptance of homosexual students. The contentious nature of these debates became visible for the first time in 2003, when school administrators deemed it acceptable for the student group known as the “Gay-Straight Alliance” to organize a “Day of Silence,” a day focusing on the self- worth of those of a different sexual orientation. Those students who participated in the “Day of Silence” chose to wear duct tape over their mouths in order to illustrate the point that discrimination against those of a different sexual orientation has a tremendous
“silencing effect.” Several participating students also wore black shirts that contained the words “National Day of Silence” on them. In addition, the Gay-Straight Alliance also received permission from administrators to put up posters throughout the school containing information regarding the prevalence of harassment based on sexual orientation and the dangers associated with such attacks.
1
What arose as a result of this celebration of toleration was a significant amount of animosity between those students who favored acceptance of homosexual pupils and those who expressed anti-homosexual sentiments. In at least one case, the animosity
1
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Harper v. Poway Unified School District , 445 F.3d 1166, 1171 (9 th Cir. 2006). The facts of this case are based on: Andrew Canter and Gabriel Pardo, “The Court’s Missed
Opportunity in Harper v. Poway ,” Brigham Young University Education and Law
Journal 2008 (2008), 125; and Douglas D. Frederick, “Restricting Student Speech that
Invades Others’ Rights: A Novel Interpretation of Student Speech Jurisprudence in
Harper v. Poway Unified School District ,” University of Hawai’i Law Review 29
(Summer 2007), 492.
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1

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turned physical and, according to the recollections of one teacher at Poway High School, several students were suspended due to their involvement in altercations stemming from the “Day of Silence” celebration. And the effects of the “Day of Silence” did not stop there. Indeed, a week after the celebratory day, a collection of Poway students came together to informally hold a “Straight-Pride Day” within school grounds. Directly opposed to the “Day of Silence,” the “Straight-Pride Day” participants despised those of different sexual orientations and displayed their disapproval by wearing shirts to school which depicted anti-homosexual phrases. Many of these participants were asked by
Poway administrators to remove their anti-homosexual t-shirts, and while some complied, others became involved in altercations and were subsequently removed from the school environment.
2
Despite the conflicts surrounding the 2003 “Day of Silence,” the Poway High
School Gay-Straight Alliance proposed yet another day of toleration towards those of different sexual orientations the following year in 2004. While administrators accepted the alliance’s request, they first asked the organization to hold a meeting with the school’s Principal in order to brainstorm ways in which to better prevent altercations amongst students. This second day of toleration kicked off as planned on April 21, 2004, with the blessing of Poway administrators. As was the case with the 2003 “Day of
Silence,” participants in the 2004 event wished to promote awareness concerning the presence and debilitating effects of harassment based on sexual orientation. However, while this was the purpose as understood by administrators and organizers of the event, this was not what some students believed to be the true reason for the event. One such
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2
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445 F.3d 1166, 1171 (9 th Cir. 2006).
2

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skeptical student was a young man by the name of Tyler Chase Harper. Rather than accept the publicized goal of toleration as proclaimed by the Gay-Straight Alliance,
Harper developed his own theory regarding the purpose of the “Day of Silence.”
According to Harper, what the Gay-Straight Alliance really wanted to do in organizing this day of toleration was “endorse, promote, and encourage homosexual activity.” 3 As a devout Christian, Harper was unwilling to accept such a sinful goal. Steadfast in his beliefs, Harper decided to take matters into his own hands.
On April 21, 2004, the day Poway administrators had approved as the “Day of
Silence,” student Tyler Chase Harper arrived at school wearing a t-shirt containing two handwritten phrases. On the front of the t-shirt was the phrase, “I WILL NOT ACCEPT
WHAT GOD HAS CONDEMNED.” On the backside of the shirt, Harper had written the phrase, “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.’” Although this was the official “Day of Silence” at Poway High School and much attention was paid to the issue of sexual orientation, Harper went through the school day undisturbed. The following day, April 22, Harper again wore a shirt to school containing anti-homosexual phrases. While the writing on the back of the shirt remained unchanged from the previous day, the writing on the front of the shirt had been altered to read, “BE
ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED.” 4
Unlike the t-shirt Harper wore during the actual “Day of Silence,” this second shirt drew the attention of Poway administrators. Upon seeing the anti-homosexual phrases, Harper’s second period teacher, Mr. David LeMaster, requested that Harper take
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4
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445 F.3d 1166, 1171 (9 th
445 F.3d 1166, 1171 (9 th
Cir. 2006).
Cir. 2006).
3

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off the item of clothing. Recalling the confrontation surrounding the 2003 “Day of
Silence,” LeMaster explained to Harper that his shirt was “inflammatory,” a violation of the school’s dress code, as well as an item that “created a negative and hostile working environment for others.” When Harper refused to remove the t-shirt, Mr. LeMaster awarded him with a dress code violation card and sent him to Poway’s administrative office.
5
When Mr. Harper arrived at the office, Assistant Principal Lynell Antrim greeted him by explaining to him that his t-shirt was likely to cause “disruption in the educational setting” and needed to be removed. In addition, Ms. Antrim discussed with Harper the more appropriate ways in which viewpoints regarding homosexuality could be expressed within the learning environment. Despite this conversation, Harper still refused to comply with administrators. As a result, Harper was made to see the Principal of Poway
High School, Mr. Scott Fisher. During the conversation that transpired, Mr. Fisher explained to Harper that his intent was to prevent violence from erupting on campus, and that the derogatory language contained within Harper’s t-shirt was likely to incite confrontation. The confession by Harper that he had already been “confronted by a group of students” and “involved in a tense verbal conversation” earlier in the school day only strengthened Principal Fisher’s resolve to see Harper’s shirt removed. Although
Harper later maintained that this conversation was merely a peaceful talk “wherein differing viewpoints were communicated,” Principal Fisher took the contentious discussion as further evidence of the likelihood of violent altercations. Following
Harper’s refusal to accept any of the alternative modes of expression suggested by Mr.
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5
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445 F.3d 1166, 1172 (9 th Cir. 2006).
4

Fisher, the young man was ordered to remain in the front office for the remainder of the school day.
6
Following this incident, Harper filed a lawsuit in the United States District Court for the Southern District of California. The suit alleged that the Poway school district had violated Harper’s free speech rights by forcing him to remain in the front office while wearing the controversial shirt.
7 This lawsuit raises many questions as to what the acceptable forms of expression in the school environment are. Indeed, what First
Amendment rights are afforded to students in America’s public schools? How much discretion do administrators have in banning instances of student speech? Were the actions of Poway administrators, in forcing Tyler Harper to remain locked away in the school’s main office, permissible under the law?
In order to better understand the answers to these questions, one must look at the current body of Supreme Court precedence that rules over student speech. These cases, which comprise two distinct branches, determine the fate of all instances of student expression in today’s public schools. The first branch of cases deals with instances of
“pure student speech,” or instances of expression completely independent of the public school system. In these cases, students chose to express themselves through the use of their own materials, with no input or support from school administrators. The second branch of cases deals with instances of school-sponsored expression. In these cases, students chose to express themselves through various school-sponsored mediums. These
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6
7
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445 F.3d 1166, 1172 (9 th
445 F.3d 1166, 1173 (9 th
Cir. 2006).
Cir. 2006).
5

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two lines of case law currently determine the constitutionality of student speech within
America’s public school system.
The Law of Student Speech
The freedom of men and women to express themselves is one of the most prized rights under the Constitution. This freedom allows for minority viewpoints to be heard and for robust debate among citizens. Students, as American citizens, enjoy this constitutional right within the school environment. Indeed, the presence of this right within the public school system was affirmed at the close of the 1960’s in a landmark
Supreme Court case. However, in the four decades since this landmark decision, the
Supreme Court has recognized on two occasions the need to place certain restrictions on the First Amendment rights of pupils. Recognizing the need to set boundaries in an environment primarily meant for the instruction of society’s youth, the Supreme Court in the 1980’s, and then again in 2007, placed limitations on the extent of free speech rights afforded to students.
“Pure” Student Speech
The current body of law regarding student speech can be broken up into two distinct branches. The first branch deals with instances of “pure speech,” or speech
6

totally independent of school sponsorship. The first major case within this branch is
Tinker v. Des Moines Independent Community School District .
8
Tinker : The Landmark for Student Speech
The facts surrounding this case unfurled against the backdrop of one of the most tumultuous conflicts in American history. The year was 1965, and President Lyndon
Johnson was escalating hostilities in Vietnam. The American public was growing louder in protest, even within the small population of Des Moines, Iowa. It is here where the story at the center of the first major case on student speech rights began.
In December of 1965, a meeting was held at the home of a family who resided in
Des Moines, Iowa. The family name was Eckhardt, and the members of this family were staunch opponents of the conflict in Vietnam. Indeed, the Eckhardt family was very upset by the escalating violence and increased American presence in the distant Asian country. Wanting to do something to show their disapproval of the war, the Eckhardt family decided to invite other families within the Des Moines school district who opposed the Vietnam conflict to their home for a brainstorming meeting. Out of this gathering grew a plan of protest in which participants would wear black armbands throughout the Christmas season and fast for two full days, on December 16 and New
Year’s Eve. Among those who agreed to participate in the protest activities were high
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8
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Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969).
7

school students John F. Tinker and Christopher Eckhardt, as well as John’s sister, junior high student Mary Beth Tinker.
9
Soon after this meeting at the Eckhardt home, administrators within the Des
Moines district became aware of the planned armband protest. In an effort to stifle the expressive act, Des Moines school officials adopted a school policy that stated that “any student wearing an armband to school would be asked to remove it, and if he refused, he would be suspended until he returned without the armband.” 10 Despite hearing about the new school policy regarding black armbands, the student participants in the protest chose to wear the expressive items anyway. On December 16, 1965, Christopher Eckhardt and
Mary Beth Tinker put on their black armbands and walked proudly into their respective high school and junior high school. Mary Beth’s older brother John chose to put on his armband the following day. As was promised under the new Des Moines district policy, all three students were immediately suspended from school pending the removal of their armbands. The students remained steadfast in their act of protest however and did not venture back onto school grounds until after New Year’s Day, which was the final day of the protest.
11
Following the suspension of these students from the Des Moines public school, the parents of Christopher Eckhardt and Mary Beth Tinker filed a lawsuit in the United
States District Court, claiming a violation of the students’ First Amendment rights. In
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9
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393 U.S. 503, 504 (1969). The facts of this case are based on: Edgar Bittle, “The Tinker
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Case: Reflections Thirty Years Later,” Drake Law Review 48 (2000), 491.
10 393 U.S. 503, 504 (1969).
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11 393 U.S. 503, 504 (1969).
8

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ruling in favor of Des Moines school officials, the District Court for the Southern District of Iowa stated that administrators were justified in forbidding the wearing of armbands, considering the need to prevent disruption in the school environment. Indeed, the district court held that “it was not unreasonable in this instance for school officials to anticipate that the wearing of arm bands would create some type of classroom disturbance.” 12 The case then moved to the Court of Appeals for the Eighth Circuit, which was equally divided on the issue and was subsequently forced to affirm the judgment of the district court.
13 Petitioners on behalf of the students then appealed the case to the Supreme
Court, which granted certiorari and considered the matter.
14
In writing the majority opinion for the Supreme Court, Justice Fortas affirmed the presence of the First Amendment in the learning environment by declaring that pupils do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 15 Indeed, the Supreme Court dismissed the notion that the school environment should not be bound by the Constitution and instead held that students are real citizens who hold rights even within the educational setting.
To further emphasize the importance of the First Amendment in the public school,
Justice Fortas looked to the words of Justice Jackson in the opinion for West Virginia v.
Barnette . In upholding the right of a public school student to refrain from saluting the
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12 Tinker v. Des Moines Independent Community School District , 258 F. Supp. 971, 973
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(S.D. Iowa 1966).
13 Tinker v. Des Moines Independent Community School District , 383 F.2d 988 (8 th Cir.
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1967).
14 393 U.S. 503, 505 (1969).
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15 393 U.S. 503, 506 (1969).
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United States flag, Justice Jackson reminded school administrators that their purpose in the classroom was to educate the youth for citizenship and warned them not to “strangle the free mind at its source and teach youth to discount important principles of…government as mere platitudes.” 16 In referring back to these words by Justice
Jackson, Justice Fortas impressed upon his audience the Court’s history of protecting students’ rights and the importance of upholding the reality of the United States
Constitution in the public school.
In his opinion, Justice Fortas built a great deal upon the notion that the First
Amendment is a right that applies to students as well as adults. For, as Justice Fortas articulated, pupils are people too under the Constitution. And like all other United States citizens, students are “possessed of fundamental rights which the State must respect.” 17
The Justice stressed that the architects of the Bill of Rights did not intend for the First
Amendment to be applicable only to certain people in restricted circumstances. Indeed, the First Amendment was not meant to apply only to adults in telephone booths. Rather,
Justice Fortas contended that the opposite is true, in that First Amendment rights are only to be denied in limited circumstances.
18 In addition, Justice Fortas made certain to emphasize the vital nature the First Amendment plays in the learning environment.
Nowhere, exclaimed the Justice, is the protection of the First Amendment more crucial than in the public school system. Indeed Justice Fortas contended that the classroom should be thought of as a “marketplace of ideas.” The Justice considered the marketplace
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16 393 U.S. 503, 507 (1969).
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17 393 U.S. 503, 511 (1969).
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18 393 U.S. 503, 513 (1969).
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an ideal metaphor for the public school setting, pointing out that the future of America depends upon an educational environment where the youth are exposed daily to the
“robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’” 19
In writing his opinion, Justice Fortas dismissed the contention of the Des Moines administrators that they were forced to remove the armbands due to their perceived fear of a disturbance within their schools. Indeed, Justice Fortas deemed “undifferentiated fear” an unacceptable reason to justify the curtailing of the First Amendment rights of students. The Justice pointed out that any difference of opinion among students has the potential to cause a “disturbance.” However, according to the Constitution, this is the type of risk that Americans are compelled to bear.
20 For, as Justice Fortas stated, it is the acceptance of this risk of disagreement that is “the basis of our national strength and of the independence and vigor of Americans.” 21
In affirming the presence of the First Amendment in the school environment,
Justice Fortas made it clear that judgments regarding the censorship of student speech should not be left solely to the discretion of school administrators. Indeed, Justice Fortas noted that, “school officials do not possess absolute authority over their students.” 22 By saying this, Justice Fortas affirmed the notion that the federal judicial system should be charged with analyzing instances of student expression and upholding the rights of
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19 393 U.S. 503, 512 (1969).
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20 393 U.S. 503, 508 (1969).
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21 393 U.S. 503, 509 (1969).
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22 393 U.S. 503, 511 (1969).
11

students as American citizens. Indeed, rather than submit to the idea that school officials have complete authority to censor whatever they deem inappropriate, Justice Fortas made it the duty of the courts to determine what student speech is constitutionally permissible.
While Justice Fortas did reassert the presence of the First Amendment in the public school with his majority opinion in Tinker , he did not grant students free reign to express whatever they wished in the classroom. For in addition to declaring that students did receive protection under the First Amendment, Justice Fortas also put forth two important limitations on student speech rights. In creating the first exception, Justice
Fortas stated that any speech that would “materially and substantially disrupt the work and discipline of the school” was not to receive protection under the First Amendment.
23
In creating the second exception, Justice Fortas held that any speech that would collide with the “rights of other students to be secure and to be let alone” was also not deserving of First Amendment protection.
24
Keeping these two exceptions in mind, Justice Fortas determined that the black armbands worn by Mary Beth Tinker and other Des Moines students were protected items of speech. In terms of whether the armbands fit within the first exception to student speech rights, Justice Fortas noted the fact that only a few students participated in the protest and the fact that no threats or violent acts occurred on school premises while the students were wearing the armbands. Based on these facts, Justice Fortas concluded that the armbands did not fall within the grasp of the first exception.
25 Justice Fortas also
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23 393 U.S. 503, 513 (1969).
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24 393 U.S. 503, 508 (1969).
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25 393 U.S. 503, 508 (1969).
12

deemed the armbands separate from the second exception, stating that the armbands constituted a “silent, passive expression of opinion” that did not interfere with the rights of other students in any way.
26 Having declared the armbands separate from both exceptions to student speech rights, Justice Fortas classified the black accessories as protected items of speech under the First Amendment.
While the majority of the Court in Tinker concluded that the expressive armbands were protected items of speech under the First Amendment, the decision was not unanimous amongst the justices. Justices Black and Harlan offered scathing dissents of the Fortas opinion, claiming that the majority viewpoint would lead to chaos within the public school system. By Justice Black’s understanding of the record, the black armbands “did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam War.” 27 Considering this distracting effect of the armbands, in addition to the fact that “public school students are (not) sent to the schools at public expense to broadcast political or any other views to educate and inform the public,” Justice Black opined that school officials were well within their rights to forbid the wearing of the armbands.
28 However, the majority of justices did not agree
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26 393 U.S. 503, 508 (1969).
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27 393 U.S. 503, 518 (1969).
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28 393 U.S. 503, 522 (1969).
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with this viewpoint, prompting Justice Black to predict that future students “in all schools will be ready, able, and willing to defy their teachers on practically all orders.” 29
While Justice Black did not see the benefit of affirming the constitutionality of the expressive armbands, the majority did, and thereby crafted the first major standard for student speech rights. Albeit with two major limitations, the Court held that students are to be afforded First Amendment rights within the school environment. For the next decade and a half, the Tinker decision remained the only Supreme Court precedent concerning students’ “pure” speech rights. However, beginning in the mid-1980’s, the
Court began to consider the issue of student speech once again. Rather than expanding the First Amendment rights afforded to students, these subsequent decisions by the
Supreme Court placed further limitations on the breadth of constitutional protection given to pupils. The first of these limiting cases was Bethel School District No. 403 v. Fraser .
Bethel : Court Strikes Down “Lewd” and “Indecent” Speech
This case arose from a speech that took place during a school assembly on April
26, 1983. Administrators at Bethel High School in Pierce County, Washington, had set up the assembly as part of a school-wide lesson in self-government. Approximately 600 students gathered to take part in the assembly. A young man by the name of Matthew
Fraser was one of the students scheduled to speak during the assembly. His address was a nomination speech for a Bethel High school student who was running for student
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29 393 U.S. 503, 525 (1969).
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government.
30 Fraser’s speech, as defined by Chief Justice Burger of the Supreme Court, was designed using an “elaborate, graphic, and explicit sexual metaphor.” 31 In his speech, Fraser referred to his candidate as a man “firm in his pants.” Fraser continued the sexual metaphor by exclaiming that his candidate was a man who would “take an issue and nail it to the wall.” Fraser also assured assembly viewers that his candidate was not one to “attack things in spurts,” but rather was a man who “drives hard, pushing and pushing until finally—he succeeds.” 32
Prior to giving the speech, Fraser had talked with two of his teachers about the content of the address. Despite the fact that both teachers warned Fraser that his speech was “inappropriate,” Fraser nevertheless delivered the address at the assembly. A school counselor observing the assembly noticed an immediate reaction from the student audience as Fraser began to speak. According to the counselor, some students began yelling and hooting as Fraser delivered his sexual metaphor, while others simulated sexual acts through the use of graphic body gestures. In addition, the counselor noticed a number of students who seemed noticeably embarrassed and bewildered by Fraser’s blatant references to sexual activities.
33
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30 Bethel School District No. 403 v. Fraser , 478 U.S. 675, 677 (1986). The facts of this case were based on Jerry C. Chiang, “Plainly Offensive Babel: An Analytical Framework for Regulating Plainly Offensive Speech in Public Schools, Washington Law Review 82
(May 2007), 403; and Curtis G. Bentley, “Student Speech in Public Schools: A
Comprehensive Analytical Framework Based on the Role of Public Schools in
Democratic Education,” Brigham Young University Education and Law Journal 2009
(2009), 1.
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31 478 U.S. 675, 678 (1986).
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32 Fraser v. Bethel School District No. 403 , 755 F.2d 1356, 1357 (9
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33 478 U.S. 675, 678 (1986). th Cir. 1985).
15

The day after his delivery of the nomination speech, Mr. Fraser was called into the Assistant Principal’s office and told that his speech was in violation of a disciplinary rule within Bethel High School. The rule the Assistant Principal was referring to stated that any action which “materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” Upon admitting that he had deliberately included sexual metaphors in his nominating speech,
Fraser was suspended for three days and removed from the list of students eligible to speak during the school’s commencement festivities.
34
Following the student’s return to school, Fraser’s father filed a lawsuit in the
United States District Court for the Western District of Washington, alleging the violation of his son’s First Amendment rights. The District Court found in favor of
Fraser and determined that Bethel school officials did indeed violate the student’s constitutional right to freedom of expression.
35
Bethel administrators appealed this decision to the Court of Appeals for the Ninth
Circuit. The Ninth Circuit in turn affirmed the ruling of the District Court. In ruling in favor of Fraser, the court looked at the Tinker standard and concluded that, “the Bethel
School District…failed to carry its burden of demonstrating that Fraser’s use of sexual innuendo in the nominating speech substantially disrupted or materially interfered in any way with the educational process.” 36 The Ninth Circuit also struck down the contention
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34 478 U.S. 675, 678 (1986).
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35 478 U.S. 675, 679(1986).
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36 Fraser v. Bethel School District No. 403 , 755 F.2d 1356, 1359 (9 th Cir. 1985).
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of Bethel officials that they have a right to forbid the expression of “indecent” language within the school environment. Indeed, the court held that when dealing with students at the high school level, such a right is far too ambiguous and overly broad. The court expressed its fear that “if school officials had the unbridled discretion to apply a standard as subjective and elusive as ‘indecency’… it would increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” 37
The Bethel school district appealed this decision to the Supreme Court, which granted certiorari and agreed to consider the case. In writing the majority opinion for the case, Chief Justice Burger sided with administrators and created an entirely new category of unprotected student expression. Indeed, while recognizing the point made in Tinker that students do have First Amendment rights in the learning environment, Chief Justice
Burger made certain to draw a clear distinguishing line between the political armbands in
Tinker and the sexually charged nomination speech given by Fraser.
38 Indeed, in critiquing the decision made by the Ninth Circuit, Chief Justice Burger noted that the
“marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals.” 39 Chief Justice Burger went on to opine that while the armbands in Tinker were a form of silent protest aimed at one of the most controversial military endeavors in American history, Fraser’s speech amounted to “lewd,
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38
755 F.2d 1356, 1363 (9 th Cir. 1985).
478 U.S. 675, 680(1986).
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39 478 U.S. 675, 680(1986).
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indecent…(and) offensive speech,” expression of a much less worthy kind than that displayed in Tinker .
40
In framing his argument, Chief Justice Burger first made note of the fact that the
First Amendment rights afforded to students are not the same as those afforded to adults in greater society. Indeed, Chief Justice Burger emphasized this fact by citing the prior
Supreme Court case New Jersey v. T.L.O.
, in which the Supreme Court justices held that a student’s Constitutional rights in the public learning environment are not coextensive with the rights of adult American citizens.
41 In order to justify this viewpoint, Chief
Justice Burger depicted the public school as a unique environment. The Chief Justice explained that public school administrators have a unique duty to fulfill, in that they must teach students the boundaries of socially acceptable behavior. Indeed, administrators must ready students to become American citizens by teaching them “manners of civility.”
According to Chief Justice Burger, it is these manners that form the backbone of a happy and active democratic society.
42
Chief Justice Burger went on to say that the use of vulgar and offensive terms by students presents a grave threat to the necessary teaching of these “manners of civility” by school administrators. Indeed, the allowance of lewd speech within the school environment sends the wrong message to students with regard to how civilized people should behave. According to Chief Justice Burger, administrators serve as role models for their students, and through their ignorance in the face of student vulgarity, they send
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40 478 U.S. 675, 683 (1986).
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41 478 U.S. 675, 682 (1986).
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42 478 U.S. 675, 681 (1986).
18

the message that this type of lewd speech is wholly appropriate within greater society.
43
In actuality, this type of speech goes against the core values that form the heart of
America’s democratic system. For, as the Chief Justice points out, while these democratic values include the ability to speak differing opinions freely, the use of vulgar terms takes away from any intelligent discussion and does not serve to further any
American value of civility.
44 Consequently, it is necessary for administrators to set a good example for their students and forbid the use of vulgar and offensive terms in the learning environment.
Chief Justice Burger also made certain to note the danger vulgar language poses to young children. The Chief Justice pointed out that in acting as parental figures during the school day, administrators have a duty to protect young students from exposure to
“sexually explicit, indecent, or lewd speech.” 45 For this type of language is simply not appropriate for young students. In support of this claim, Chief Justice Burger cited the
Supreme Court case Ginsberg v. New York .
46 In this decision, the Supreme Court upheld a state statute forbidding the sale of sexual material to minors.
47 By citing this case,
Justice Burger was clearly attempting to show that the Supreme Court has a history of protecting young children from inappropriate sexual content.
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43 478 U.S. 675, 683 (1986).
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44 478 U.S. 675, 683 (1986).
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45 478 U.S. 675, 684 (1986).
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46 Ginsberg v. New York , 390 U.S. 629 (1968).
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47 390 U.S. 633 (1968).
19

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Keeping in mind the pressing need to keep vulgar and obscene language out of the school environment, Chief Justice Burger determined that the First Amendment did not protect Fraser’s nominating speech. In reaching this conclusion, Chief Justice Burger cited the blatant sexual innuendo present in the address. The Chief Justice also stressed the offensive nature of the speech, stating that the crude and graphic celebration of male sexuality was particularly insulting to the young girls present during the assembly. In addition, the Chief Justice took into consideration the fact that many in the assembly audience were a mere 14 years of age, meaning that they were only on the “threshold of awareness” regarding human sexuality. Chief Justice Burger was clearly disturbed by the possible consequences Fraser’s explicit speech could have on the sexually developing minds of these young pupils.
48 Based on the vulgar nature of the speech and the age of the audience members present for its deliverance, Chief Justice Burger concluded that
Fraser’s mode of expression was not protected under the First Amendment.
In constructing this majority opinion, Chief Justice Burger paid very little attention to the precedence set by Justice Fortas in Tinker . In considering Fraser’s speech, Chief Justice Burger could have applied Tinker ’s “substantial disruption” test and considered whether the nominating address was disruptive enough to the school environment. Instead, Chief Justice Burger chose to add to the limitations outlined in
Tinker and create an entirely new category of unprotected student expression: that speech which is vulgar, lewd, and offensive.
And so, with this decision, the scope of student speech worthy of First
Amendment protection was significantly reduced. This new limitation involving vulgar
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48 478 U.S. 675, 683 (1986).
20

speech, along with those exceptions articulated in Tinker , served as the Supreme Court standard for student speech for over twenty years following Bethel . However, in 2007, the Supreme Court once again ruled on the matter of “pure speech” in the public school environment. Much like Bethel , this new case, Morse v. Frederick , served to limit the scope of First Amendment protection afforded to students. Indeed, with Morse , the
Supreme Court created yet another major limitation on student speech rights.
Morse : Court Strikes Down Drug Speech
The circumstances surrounding Morse took place in Juneau, Alaska on the eve of the 2002 Winter Olympic Ceremonies. The torch relay that preceded the Olympic ceremonies was scheduled to pass by Juneau Douglas High School on January 24, 2002.
The relay was expected to proceed in front of the educational institution during the school day, and as a result, the Principal of the high school, Ms. Deborah Morse, elected to make an activity out of the event. Indeed, Principal Morse decided to allow students to participate in the relay as part of an “approved social event or class trip.” Students were permitted to watch the relay from both sides of the street in front of the school, while administrators were stationed amongst the students in order to monitor behavior.
49
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49 Morse v. Frederick , 551 U.S. 393, 397 (2007). The facts of this case are based on
Angie Fox, “Waiting to Exhale: How ‘Bong Hits 4 Jesus’ Reduces Breathing Space for
Student Speakers & Alters the Constitutional Limits on Schools’ Disciplinary Actions
Against Student Threats in the Light of Morse v. Frederick ,” Georgia State University
Law Review 25 (Winter 2008), 435; and Mark W. Cordes, “Making Sense of High School
Speech After Morse v. Frederick ,” William and Mary Bill of Rights Journal 17 (March
!
2009), 657.
21

Late to school that day was a Juneau Douglas senior by the name of Joseph
Frederick, who arrived at school just in time for the passing of the torch. Rather than checking in with attendance however, Frederick immediately went to join his friends observing the relay from the street. Upon the arrival of the torchbearers and television crews, Frederick and his surrounding friends displayed a 14-foot banner with the words,
“BONG HiTS 4 JESUS” written across it.
50 Since the banner was so large, it was easily spotted by Principal Morse, who immediately went over to Frederick and demanded that it be taken down. Frederick refused to comply with the order, and was subsequently suspended for ten days.
51 In upholding Frederick’s suspension, the Juneau School
District Superintendent held that the banner was “inconsistent with the school’s educational mission to educate students about the dangers of illegal drugs and to discourage their use.” 52
Following this decision by the Superintendent, Frederick filed a lawsuit in the
United States District Court for the District of Alaska, alleging the violation of his First
Amendment rights. The District Court determined that Morse and the school board had not violated Frederick’s First Amendment rights by forcibly removing the banner. The court appealed to the standard set by Fraser in support of their holding. First, the court chose to read Fraser as not just a standard permitting the censorship of vulgar speech, but also as a standard that allows school boards to “‘determine what manner of speech…is
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50 551 U.S. 393, 397 (2007).
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51 551 U.S. 393, 398 (2007).
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52 551 U.S. 393, 399 (2007).
22

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inappropriate.’” 53 The court also read Fraser as a case that allows for the censorship of student speech that “might undermine the school’s basic educational mission…” 54 The court then determined that Morse was qualified to censor Frederick’s pro-drug banner, considering the fact that the Juneau School District “determined that messages advocating illegal drug use undermine its own mission.” 55 Indeed, the District Court held that “Morse had the authority, if not the obligation, to stop such messages at a schoolsanctioned activity so as not to place the imprimatur of school approval on the message.” 56
Following this decision, Frederick appealed his case to the Court of Appeals for the Ninth Circuit. After reviewing the facts, the Ninth Circuit chose to reverse the ruling of the District Court and side with Frederick. In justifying this outcome, the Ninth
Circuit used the Tinker standard rather than the Fraser standard used by the District
Court. The Ninth Circuit, in following with a very narrow interpretation of Fraser , reasoned that Frederick’s speech was very different from that struck down in Fraser , seeing as Frederick’s banner was “not sexual, and did not disrupt a school assembly.” 57
Seeing as the banner was not analogous to the speech in Fraser , the Ninth Circuit decided to analyze Frederick’s speech under the Tinker standard. According to this standard, Morse would have to demonstrate that the banner was likely to cause
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53 Frederick v. Morse , 2003 U.S. Dist. LEXIS 27270, 20 (D. Ala. 2003).
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54 2003 U.S. Dist. LEXIS 27270, 20 (D. Ala. 2003).
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55 2003 U.S. Dist. LEXIS 27270, 20 (D. Ala. 2003).
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56 2003 U.S. Dist. LEXIS 27270, 20 (D. Ala. 2003).
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57 Frederick v. Morse , 439 F.3d 1114, 1119 (9 th Cir. 2006).
23

“substantial disruption” within the school environment in order to justify the censoring of the speech. The Ninth Circuit concluded that the school failed to put forth such evidence, noting that school officials “conceded that the speech in this case was censored only because it conflicted with the school’s ‘mission’ of discouraging drug use.” 58
Consequently, the court concluded that Frederick’s banner did not fall into one of the censorable categories within the Tinker standard, and was thereby protected expression under the First Amendment.
Following this ruling by the Ninth Circuit, Morse appealed to the Supreme Court, which granted certiorari. Chief Justice Roberts, in writing for the majority, reversed the decision of the Ninth Circuit and ruled in favor of Morse. In so doing, Chief Justice
Roberts, like Chief Justice Burger in Fraser , went beyond an application of the Tinker standard and created an entirely new category of unprotected student expression. Chief
Justice Roberts first contended that Frederick’s banner amounted to a pro-drug message.
Indeed, Chief Justice Roberts noted the banner’s “undeniable reference to illegal drugs,” while concluding that the message on the banner had to mean either “Take bong hits” or that “bong hits are a good thing.” 59
Chief Justice Roberts then built upon two major legacies that arose from Justice
Burger’s opinion in Fraser . First, Chief Justice Roberts emphasized Chief Justice
Burger’s proclamation in Fraser that the First Amendment rights of students are not coextensive with the rights of adults in larger society.
60 In addition, Chief Justice Roberts
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58
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59
439 F.3d 1114, 1123 (9 th Cir. 2006).
551 U.S. 393, 402 (2007).
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60 551 U.S. 393, 404 (2007).
24

pointed out the fact that Chief Justice Burger did not use a Tinker analysis in declaring
Fraser’s nomination speech void of First Amendment protection.
61 By mentioning this,
Chief Justice Roberts laid the groundwork for the creation of his own category of unprotected student expression.
Of course, this new category that Chief Justice Roberts was attempting to create consisted of student speech that promoted the use of illegal drugs. In an effort to add a great deal of backing to his argument, Chief Justice Roberts included a plethora of evidence concerning the dangers of illegal drug use by school children. Calling the need to deter drug use by students an “‘important—indeed, perhaps compelling’ interest,”
Chief Justice Roberts cited the Supreme Court case Vernonia School District 47J v.
Acton , in which the justices proclaimed that drugs can have especially devastating effects on young people, impairing their nervous systems and causing them to become chemically dependent very quickly. Chief Justice Roberts also made certain to note the widespread presence of illegal drugs within the student population, citing statistics that put the number of high school seniors who have tried any illegal drug at approximately fifty percent.
62
Keeping in mind the fact that the First Amendment rights of students are not on par with those of adults, in addition to the compelling need to stop the prevalence of teenage drug usage, Chief Justice Roberts determined that Frederick’s banner was unworthy of constitutional protection. In doing so, Chief Justice Roberts created yet
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61 551 U.S. 393, 405 (2007).
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62 551 U.S. 393, 407 (2007).
25

another category of student speech outside the reach of the First Amendment: that speech which promotes the use of illegal drugs. This new category, in combination with Chief
Justice Burger’s category concerning lewd speech and Tinker ’s two exceptions to student expression, has served to severely reduce the amount of “pure” student speech protected within the public school environment.
In Tinker v. Des Moines Independent Community School District , the Supreme
Court affirmed the reality of the First Amendment within the public school system.
Indeed, Justice Fortas held that students are citizens with constitutional rights, even inside the classroom. However, the Court in Tinker also held that the First Amendment rights afforded to students are not as extensive as those constitutional rights afforded to adults.
Expanding upon this notion, the Court outlined two major limitations to student speech rights within the educational environment. First, the Court stated that any student speech that serves as a “substantial disruption” within the school environment is not deserving of
First Amendment protection. Secondly, the Court noted that any student expression that collides with the “rights of other students to be secure and to be let alone” is also not worthy of constitutional protection.
63 These two exceptions served as the only limitations on student speech rights until Fraser , when the Court determined that “lewd, indecent…(and) offensive speech” was also not worthy of First Amendment protection within the school environment. In 2007, the Supreme Court added one final category of unprotected student speech to the picture, declaring in Morse that any student speech that promotes the use of illegal drugs is not to be afforded First Amendment protection.
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63 393 U.S. 503, 508 (1969).
26

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The limitations outlined in these three cases currently determine the constitutionality of all instances of “pure” student speech within America’s public school system. However, there is a second branch of student speech case law that deals with another type of expression: school-sponsored student speech. While pupils engaging in
“pure” student speech receive no assistance from their public schools, students engaging in school-sponsored speech express themselves through school-sponsored mediums. The landmark Supreme Court case within this branch is Hazelwood School District v.
Kuhlmeier . Unlike the landmark Tinker case within the “pure” student speech branch,
Hazelwood does not recognize the reality of the First Amendment within the educational environment. Indeed, within this branch, school authorities are given great reign to censor instances of expression.
School-Sponsored Student Speech
Hazelwood : “Legitimate Pedagogical Concerns”
This case centered on a group of students who attended Hazelwood East High
School in St. Louis County, Missouri. This group of students served as staff members for a school-sponsored newspaper known as the Spectrum . Students enrolled in Hazelwood
East High School’s Journalism II class carried out the writing and editing for this school newspaper. Over 4,000 copies of the paper were distributed throughout the student body and the greater Hazelwood community approximately every three weeks. Funds to pay for the printing of the newspaper came primarily out of the Hazelwood Board of
27

Education’s budget, although revenue from newspaper sales did cover a portion of the printing expenses.
64 In addition, the Board of Education also covered additional costs rung up by the newspaper, including textbooks, writing supplies, and part of the annual salary given to the journalism teacher.
65
On May 10, 1983, Mr. Howard Emerson, the man teaching Journalism II at
Hazelwood East High School, handed over the proofs of the upcoming addition of the
Spectrum to the Principal of East Hazelwood, as was customary to do prior to each printing. The Principal, Mr. Robert Reynolds, was not pleased with two of the articles that were scheduled for inclusion in the newspaper. One of the articles concerned three students’ experiences with teen pregnancy, while the second story concerned the impact of parental divorce on Hazelwood East High students. In terms of the teen pregnancy story, Principal Reynolds was extremely concerned that the identities of the pregnant students would surface and that younger Hazelwood students would be prematurely exposed to discussion about sexual behavior and methods of contraception. In terms of the story on divorce, Principal Reynolds was of the belief that the feuding parents mentioned in the story should have been given the chance to address the claims made in
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64 Hazelwood School District v. Kuhlmeier , 484 U.S. 260, 262 (1988). The facts of this case are based on Walter E. Forehand, “Tinkering with Tinker : Academic Freedom in the
Public Schools: Hazelwood School District v. Kuhlmeier ,” Florida State University Law
Review 16 (Spring 1988), 159; and Jeffrey D. Smith, “High School Newspapers and the
Public Forum Doctrine: Hazelwood School District v. Kuhlmeier ,” Virginia Law Review
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74 (May 1988), 843.
65 484 U.S. 260, 263 (1988).
28

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the article, or at the very least been given the chance to consent or object to the story’s publication.
66
Due to the fact that he wanted to get the newspaper out prior to the end of the school year, Principal Reynolds made the decision not to wait for changes to be made to the two articles in question. Rather, the Principal decided to remove the two pages from the newspaper that contained the inappropriate articles and send the rest of the newspaper to the press at the regularly scheduled time.
Upon learning about the deletions made to the newspaper, several students from the Journalism II class opted to draw up a lawsuit against the school district in the United
States District Court for the Eastern District of Missouri, alleging a violation of their First
Amendment rights.
67 In ruling in favor of the school district, the court identified the presence of the school-sponsored category of speech, noting that within this branch of case law, “the interests of school officials and the special function performed by schools in our society are given considerably more weight” than would be given in instances of
“pure” expression.
68 The court went on to hold that since the Spectrum was “an integral part of Hazelwood East’s curriculum,” a great deal of discretion was to be afforded to school officials in terms of censoring articles.
69 Considering the censorship committed by Mr. Reynolds was done out of the reasonable concern that the anonymity of the students mentioned in the articles would be lost, the court determined that the removal of
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66 484 U.S. 260, 263 (1988).
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67 484 U.S. 260, 264 (1988).
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68 Kuhlmeier v. Hazelwood School District , 607 F. Supp. 1450, 1463 (E.D. Mo. 1985).
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69 607 F. Supp. 1450, 1465 (E.D. Mo. 1985).
29

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the articles did not in fact violate the First Amendment rights of the Hazelwood students.
70
The students appealed this decision to the Court of Appeals for the Eighth Circuit.
The Eight Circuit in turn reversed the decision of the District Court and sided with the students. Indeed, the Eighth Circuit reasoned that rather than serve as merely a part of the school curriculum, the Spectrum was “a (public) forum in which the school encouraged students to express their views to the entire student body freely…” 71 Having declared the newspaper a public forum, the court then went on to apply the Tinker “pure” speech standard to the facts of the case. In doing so, the court determined that there was
“no evidence in the record that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school.” 72 Hence, the censoring of the speech was deemed a violation of the students’ First Amendment rights.
Following this decision, the Hazelwood school district appealed their case to the
Supreme Court, which granted certiorari. In writing the majority opinion for the Court,
Justice White first broke with the Eighth Circuit and determined that the Spectrum was not equivalent to a “public forum.” Indeed, the Justice reasoned that a school-sponsored newspaper did not have the same qualities as a traditional forum for public discourse, such as a street or a park. Rather, the newspaper, as part of the Hazelwood curriculum, was meant to serve an educational purpose. Justice White cited the Hazelwood East
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70 607 F. Supp. 1450, 1466 (E.D. Mo. 1985).
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71 Kuhlmeier v. Hazelwood School District , 795 F.2d 1368, 1373 (8 th Cir. 1986).
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72 795 F.2d 1368, 1375 (8 th Cir. 1986).
30

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Curriculum Guide in making the claim that the writing of the Spectrum in the Journalism
II class was meant to serve as a practical exercise in “applying skills…learned in
Journalism I.” Justice White further emphasized the school-sponsored nature of the newspaper by pointing out that the Journalism II teacher had a great deal of editorial control over the newspaper, determining everything from the selection of the editors to the number of pages for each issue.
73 Indeed, while Hazelwood administrators allowed students a degree of control concerning the content of the newspaper, the main purpose of the newspaper, as was stated in the school’s Curriculum Guide, was to teach students
“leadership responsibilities as issue and page editors.” As was argued by Justice White, the purpose of the newspaper was not to set up a “public forum” for discussion within the school.
74
Justice White then went on to make a broader point about school-sponsored student expression. While the Justice admitted that school administrators must tolerate a certain amount of student speech, he went on to state that this does not mean administrators have to affirmatively promote instances of student speech by forgoing all censorship in mediums associated with the school. Indeed, Justice White held that with regard to publications sponsored by the school and all other activities that “students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” administrators have a great deal of censorship power.
75 Indeed, the Justice contended that so long as the censorship of the school-sponsored expression is
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73 484 U.S. 260, 268 (1988).
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74 484 U.S. 260, 270 (1988).
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75 484 U.S. 260, 271 (1988).
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“reasonably related to legitimate pedagogical concerns,” school administrators are not to be held in violation of their students’ First Amendment rights.
76 Justice White reasoned that with this holding, administrators could be assured that their students were taking away from their school-sponsored activities what they were supposed to be learning, that young students were not being subjected to inappropriate material, and that the views of students were not “erroneously attributed to the school.” 77
The Legacy of Hazelwood
While Justice White was commenting upon school-sponsored speech within the public high school environment in his Hazelwood majority opinion, a number of cases in the years since Hazelwood have considered the question of whether Justice White’s holding applies to public universities and colleges as well. Justice White made no effort to stretch the reach of his decision to the post-secondary level. Indeed, the Supreme
Court in Hazelwood made it clear that it was only discussing First Amendment rights in the public high school environment, stating, “we (the Supreme Court) need not now decide whether the same degree of deference is appropriate with respect to schoolsponsored expressive activities at the college and university level.” 78 In the years since
Hazelwood , however, federal appellate courts have been faced with the decision of whether to apply the Hazelwood standard to colleges and universities.
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76 484 U.S. 260, 273 (1988).
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77 484 U.S. 260, 271 (1988).
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78 484 U.S. 260, 273 (1988).
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In some instances, federal appellate court judges have sided with college students and rendered Hazelwood inapplicable in the post-secondary environment. In the case of
Kincaid v. Gibson , judges for the Sixth Circuit Court of Appeals did just this. This case involved several students at Kentucky State University and a yearbook known as The
Thorobred . In an effort to bring a new, unique face to this yearbook, the KSU student editor of the yearbook for the 1993-1994 academic year decided to make the book cover purple and give the yearbook a theme for the first time ever. The theme chosen was
“destination unknown,” a tribute to the perceived uncertainty of the time period. In addition, the editor also decided to include a current events section that covered both national and global events.
79
Upon viewing the yearbook make-over, the Vice President for Student Affairs at
KSU, a woman by the name of Betty Gibson, determined that the book was unfit to be distributed to the student body. Gibson was extremely unhappy with the purple book cover, seeing as the school colors for KSU were green and gold. Additionally, Gibson had problems with the theme of the book, the lack of photo captions, and the presence of the “current events” section. Due to these problems, Vice President Gibson concluded that the yearbook was unfit for distribution. As a result, the printed books were immediately confiscated and locked away within the KSU campus.
80
Following this confiscation, students filed a free speech lawsuit in the United
States District Court for the Eastern District of Kentucky at Frankfort. In siding with the
University, the court chose to apply the Hazelwood standard within the collegiate setting.
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79 Kincaid v. Gibson , 236 F.3d 342, 345 (6 th Cir. 2001).
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80 236 F.3d 342, 345 (6 th Cir. 2001).
33

Indeed, the court determined that the yearbook was a “nonpublic forum” and that “KSU officials’ actions were reasonable” according to Hazelwood precedent.
81 Hence, the confiscation of the yearbooks was not, according to the district court, a violation of any
First Amendment rights.
Following this ruling, the students appealed their case to the Court of Appeals for the Sixth Circuit. Once there, the judges for the Sixth Circuit determined that Vice
President Gibson had indeed violated the students’ First Amendment rights by confiscating the yearbook. Indeed, according to the judges for the Court of Appeals, the yearbook served as a “limited public forum” within the KSU community and was thereby to be given heightened First Amendment protection. To support this holding, the judges referenced KSU’s student handbook, as well as the actions of school administrators in dealing with the yearbook. First, the judges pointed out that the student handbook put full editorial control of the yearbook in the hands of university students.
82 Secondly, the judges noted that administrators took an extremely “hands-off” approach in terms of inquiring about the content of the yearbook. Indeed, the student editor of the book testified that Vice President Gibson “‘never expressed any concern about what the content might be in the yearbook.’” 83 Based on these facts, the Sixth Circuit judges concluded that the KSU yearbook was indeed a “limited public forum” whose content was to be decided by university students. Deeming the actions of Vice President Gibson
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81
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82
236 F.3d 342, 346 (6 th Cir. 2001).
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236 F.3d 342, 349 (6 th Cir. 2001).
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83 236 F.3d 342, 351 (6 th Cir. 2001).
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“arbitrary and unreasonable,” the Sixth Circuit determined that the confiscation of the yearbook had amounted to a violation of the KSU students’ First Amendment rights.
84
Along with their labeling of the yearbook as a “limited public forum,” the Sixth
Circuit judges also paid special attention to the broader issue of the importance of First
Amendment rights in the collegiate setting. In writing the majority opinion for the Court of Appeals, Judge Guy Cole Jr. pointed out that the “danger of ‘chilling…individual thought and expression’” is particularly real in the college setting. Judge Cole went on to label the college environment the “quintessential ‘marketplace of ideas,’” a place deserving of special attention when it comes to First Amendment protection.
85 With the inclusion of these thoughts, Judge Cole effectively made the argument that Hazelwood precedence has no bearing within the sophisticated marketplace of the collegiate environment.
While the Sixth Circuit in Kincaid determined that the Hazelwood standard had no bearing within the collegiate environment, other federal appellate courts have been more willing to apply this student speech standard to university settings. Indeed, in Hosty v. Carter , the Seventh Circuit Court of Appeals took the road opposite that of the Sixth
Circuit and deemed the Hazelwood decision completely applicable within the university setting. This case concerned students at Governors State University, as well as a college newspaper known as the Innovator .
86 The trouble began when student journalist
Margaret Hosty wrote an article attacking the integrity of the Dean of the College of Arts
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84
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85
236 F.3d 342, 357 (6 th Cir. 2001).
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236 F.3d 342, 352 (6 th Cir. 2001).
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86 Hosty v. Carter , 412 F.3d 731, 732 (7 th Cir. 2005).
35

and Sciences, Mr. Roger Oden. When Mr. Oden and University President Stuart Fagan accused the student writers of engaging in irresponsible journalism, the students remained one hundred percent behind their stories, refusing to retract any facts or even print the statements written by Mr. Oden or Mr. Fagan. In light of this behavior on the part of the students, Patricia Carter, Dean of Student Affairs and Services, gave the order that no more editions of the Innovator were to be printed until she had had the chance to review and approve the issues. Unwilling to cooperate with this new system of prior approval, the student writers sued the Dean of Student Affairs, citing a violation of their First
Amendment rights.
87
In writing the majority opinion for the Hosty case, Seventh Circuit Judge
Easterbrook held that the Hazelwood opinion was indeed applicable to school-sponsored publications at the collegiate level. In support of this assertion, Judge Easterbrook pointed out that nowhere in the Ha z elwood opinion did Justice White hint at the presence of an “on/off switch,” in which administrators could edit high school newspapers but never college newspapers.
88 In addition, the Seventh Circuit judge asserted that the question of age was not relevant in determining whether or not Hazelwood applies at the collegiate level. The judge pointed out that the age line between high school seniors and college freshmen is extremely blurry.
89 Indeed, Judge Easterbrook went to great lengths to blur even the line between secondary and collegiate publications, noting that there
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87
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88
412 F.3d 731, 733 (7 th Cir. 2005).
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412 F.3d 731, 734 (7 th Cir. 2005).
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89 412 F.3d 731, 734 (7 th Cir. 2005).
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really is “no sharp difference between high school and college papers.” 90 Based on these assessments, Judge Easterbrook concluded that the Hazelwood standard was indeed deserving of a place within the university environment.
In Hazelwood School District v. Kuhlmeier , the Supreme Court set the standard by which all instances of school-sponsored expression within the public high school environment were to be measured. This standard placed a great deal of discretion within the hands of school administrators in terms of being able to censor student speech.
Indeed, the Court reasoned that so long as the censorship was “reasonably related to legitimate pedagogical concerns,” school administrators would not act in violation of students’ First Amendment rights.
91 Due to the fact that the Court did not discuss at all the applicability of this standard to the collegiate setting, federal appellate courts have had to determine for themselves whether this standard was meant to apply only within the high school environment. Some courts have held that the standard has no bearing on expression made by college students, while other courts have determined that the standard is meant to apply within the university setting.
The Tinker, Fraser , and Morse “pure” speech cases, along with the Hazelwood school-sponsored speech case, encompass the current body of law that determines the constitutionality of student speech within the public school environment. In deciding current student speech cases, federal judges look to these cases to apply the appropriate precedent and determine the correct outcome. Indeed, both the District Court for the
Southern District of California and the Ninth Circuit, in considering the case Harper v.
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90
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91
412 F.3d 731, 735 (7 th Cir. 2005).
484 U.S. 260, 273 (1988).
37

Poway Unified School District , looked to these Supreme Court cases for guidance and appropriate standards. However, while both looked at the same Supreme Court cases, the two courts came to different conclusions as to what standard to apply to Harper .
Harper v. Poway Unified School District
District Court Decision
In reviewing the facts of the Harper case, the District Court for the Southern
District of California determined that Tyler Harper’s t-shirt should be looked at through the lens of the Tinker decision. While the court considered analyzing Harper’s shirt using a Fraser analysis, the judges ultimately determined that there was not enough evidence to support the contention that the anti-homosexual phrases were “plainly offensive.” 92
However, the District Court did see merit in using a Tinker mode of analysis.
In particular, the District Court focused on the first major exception to student speech rights as outlined by Justice Fortas in determining whether Harper’s First
Amendment rights had been violated. This was the exception that stated that any speech that “materially disrupts classwork or involves substantial disorder” is not to receive First
Amendment protection.
93 In addition to referencing this line from Tinker , the District
Court made clear the fact that under Tinker, school administrators are not required to wait
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92 Harper v. Poway Unified School District , 345 F. Supp. 2d 1096, 1120 (S.D. Cal. 2004).
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93 393 U.S. 503, 513 (1969).
38

for disruption to occur. Rather, administrators are permitted to censor student speech in the presence of facts that reasonably forecast material disruption.
94
Upon reviewing the evidence provided by the Poway School District, Judge John
A. Houston determined that Harper’s t-shirt did indeed lead school officials to reasonably forecast substantial disruption. In coming to this conclusion, the District Court took into account the conflict that erupted during the 2003 “Day of Silence” at Poway High
School, as well as Mr. LeMaster’s testimony that Harper’s t-shirt caused a “disruption” during class time. The District Court also pointed to Principal Fisher’s testimony that
Harper had engaged in a “‘tense verbal conversation with a group of students’” while on school grounds as reason to forecast substantial future disturbance.
95 Based on these facts, the District Court concluded that Harper’s t-shirt fell within the first major exception to student speech rights as outlined in the Tinker opinion.
Following this decision by the District Court, Tyler Harper and his counsel chose to bring their case to the Ninth Circuit Court of Appeals. The Ninth Circuit agreed to take the case and examine the facts surrounding the anti-homosexual t-shirt. While the facts remained the same from when the District Court took the case, the Ninth Circuit used a slightly different mode of analysis in determining whether Harper’s First
Amendment rights had been violated.
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94 345 F. Supp. 2d 1096, 1120 (S.D. Cal. 2004).
!
95 345 F. Supp. 2d 1096, 1120 (S.D. Cal. 2004).
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Ninth Circuit Court of Appeals Decision
Upon examining the facts of the Harper case, the Ninth Circuit first determined that the shirt needed to be analyzed using a Tinker mode of analysis.
96 However, the
Ninth Circuit did not follow the lead of the District Court and view Harper’s t-shirt through the lens of Tinker ’s first exception to student speech rights. Rather, the Ninth
Circuit focused on the second exception to students’ expressive rights outlined in the
Tinker opinion. This exception stated that any speech made by a student that “collides with the rights of other students to be secure and to be let alone” is not deserving of First
Amendment protection.
97 In addition to referencing this portion of Tinker , the Ninth
Circuit made sure to note that another student’s rights might be violated absent any actual physical confrontation. The Ninth Circuit also made certain to point out that the speech in question need not directly refer to any individual student in order to qualify as an invasion of the rights of a particular pupil.
98
Under this mindset, the Ninth Circuit concluded that Harper’s t-shirt did indeed interfere with the rights of other pupils. The Ninth Circuit viewed the shirt as a blatant attack on certain students within the Poway community based solely on their sexual orientation. The Ninth Circuit considered this type of attack unacceptable, stating,
“students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from
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96
!
97
445 F.3d 1166, 1177 (9 th Cir. 2006).
393 U.S. 503, 508 (1969).
!
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98 445 F.3d 1166, 1178 (9 th Cir. 2006).
40

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such attacks.” Indeed, the Ninth Circuit stressed the importance of a student’s right to be left in peace and insisted that the public school setting was not a place where students could “hide behind the First Amendment” in an effort to intimidate and verbally assault their peers.
99
In an effort to support this holding, the Ninth Circuit offered a great deal of evidence as to the harmful effects verbal assaults have on homosexual students. Indeed, the Ninth Circuit pointed to the writings of Susanne Stronski, whose research shows that
“academic underachievement, truancy, and dropout are prevalent among homosexual youth.” Ms. Stronski contends that these trends are most likely the consequences of verbal and physical attacks within the learning environment.
100 The Ninth Circuit also referenced additional studies, one of which claimed that homosexual students struggle to concentrate in school out of a fear for safety, while another study put the dropout rate of homosexual teens at triple the national average for all teenage dropouts.
101 Given these studies, the Ninth Circuit concluded that Harper’s t-shirt presented a true threat to the learning abilities and psychological health of homosexual students within Poway High
School. Consequently, the Ninth Circuit dismissed Tyler Harper’s First Amendment claim based on the fact that the anti-homosexual shirt fell within the second exception to student speech rights as outlined in the Tinker majority opinion.
Following this decision by the Ninth Circuit, Harper appealed his case to the
Supreme Court. However, the Supreme Court denied certiorari. To the surprise of many
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99 445 F.3d 1166, 1178 (9 th Cir. 2006).
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445 F.3d 1166, 1179 (9 th Cir. 2006).
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101 445 F.3d 1166, 1179 (9 th Cir. 2006).
41

commentators, the Court chose instead to rule on another student speech case, Morse v.
Frederick . While Morse also dealt with a contended First Amendment violation within the school environment, the speech in this case was of an entirely different breed than that depicted within Harper . Indeed, Morse raised the question of whether speech encouraging the use of illegal drugs is protected expression within the educational setting. The Supreme Court determined that this speech is indeed not protected within the school environment. However, in doing so, the Court chose to create yet another exception to the Tinker standard, rather than analyze and apply the limitations put forth in
Tinker .
Consequently, courts today are left with three cases that set forth limitations to students’ “pure” speech rights, but provide no clarity as to how to apply these limitations.
In particular, there is a real lack of consensus as to the application of the limitations set forth within the Tinker case. This lack of consensus is due to the vague nature of the
Fortas opinion in Tinker . The next chapter will explore this ambiguity more closely, as well as examine the other flaws inherent within Tinker that render this precedent unfit to deal with modern student speech issues.
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CHAPTER TWO:
TINKER : THE FLAWED STUDENT SPEECH STANDARD
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By holding that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker affirmed the reality of constitutional protection within the educational environment.
1 At the same time, however, Tinker held that the First Amendment rights of students are not as broad as those afforded to adult citizens within greater American society. Specifically, Tinker carves out two exceptions to student speech privileges. First, speech within the school environment can be lawfully suppressed if said speech interferes with “the rights of other students to be secure and to be let alone.” 2 Secondly, student expression can be lawfully censored if said speech “substantially interfere(s) with the work of the school.” 3
“Rights of Others:” A Flawed Test
In Harper, the Ninth Circuit relied on the “rights of others” exception within
Tinker to censor the shirt bearing the anti-homosexual message. However, the Ninth
Circuit erred in basing their decision on this portion of Tinker . The “rights of others” exception is a flawed standard that does not allow for a reasonable amount of First
Amendment protection within the school environment. The use of this standard by the
1
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Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 506
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(1969).
2 393 U.S. 503, 508 (1969).
3
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393 U.S. 503, 509 (1969).
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Ninth Circuit was erroneous considering it was not the determinate test used to uphold the conduct of young Mary Beth and is not a consideration that has been utilized by any lower court to rule on instances of student expression since the Tinker ruling. In addition, the language of the test itself is extremely vague and highly conducive to viewpoint discrimination and the development of a snowball effect, in which virtually all instances of student expression that run counter to the beliefs of school administrators are likely to be censored.
Clearly, the Ninth Circuit erred in applying the “rights of others” exception to
Harper . Indeed, the more conventional and correct way to apply Tinker precedence would have been to use Tinker ’s “substantial disruption” exception. This exception has at least served as the basis for suppression in many federal court cases in the years since
Tinker . However, as this paper will argue, even had the Ninth Circuit applied this disruption exception to Harper , the court still would have come to the wrong conclusion in terms of the constitutionality of the anti-homosexual shirt. This is due to the fact that, like the “rights of others” exception, the “substantial disruption” standard is deeply flawed. First, the test allows for censorship based on the mere anticipation of disruption.
Secondly, the language of the test is overly vague. Finally, the test is utterly unsuited to deal with the new ways in which students are expressing themselves in the 21 st century, such as through the use of the Internet.
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Not the Determinate Test within Tinker
The first problem with the “rights of others” exception is that it was not the standard used to determine the permissibility of the black armbands in Tinker . In deeming the expressive items of clothing worthy of First Amendment protection, Justice
Fortas instead relied on the language of the better known “substantial disruption” test, stating “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.” 4
While Justice Fortas did mention in passing that Mary Beth did not seek to intrude upon
“the lives of others,” the vast majority of the Justice’s concluding paragraph focuses on the fact that the work of the school was not disrupted by the armbands, suggesting that this is the test most critical to the holding.
5 Given that Justice Fortas spent so little time applying the “rights of others” test to the facts of Tinker , it must be said that this test is deserving of very little legal weight. Indeed, as was opined by Douglas Frederick, the invasion of the “rights of others” test was never applied by the Supreme Court, and is therefore “nothing more than dicta by the Tinker Court.” 6
Due to the fact the Supreme Court did not use the “rights of others” test to determine the permissibility of the armbands in Tinker , few federal judges since Tinker
4
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393 U.S. 503, 514 (1969).
5
!
393 U.S. 503, 514 (1969).
6
!
Douglas D. Frederick, “Restricting Student Speech that Invades Others’ Rights: A
Novel Interpretation of Student Speech Jurisprudence in Harper v. Poway Unified School
!
District ,” University of Hawai’i Law Review 29 (Summer 2007), 492.
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have been willing to apply the “rights of others” exception to student speech cases.
Indeed, while there is well-established precedence for using the “substantial disruption” exception within Tinker , there is a stark absence of case law in which judges have applied the “rights of others” test. As was pointed out by Holning Lau, “the Ninth Circuit’s opinion made history; it was the first reported opinion to restrict student speech by relying on Tinker ’s rights-of-others exception.” 7
Many other scholars have also come to note the rare usage of the “rights of others” test and the historic nature of the Ninth Circuit’s application of the standard.
8
Even federal judges have commented upon the limited application of the test. Such was the case in the majority opinion for Nixon v. Northern Local School District Board of
Education . This case involved a student, James Nixon, who wore a t-shirt to school bearing the phrases “Homosexuality is a sin,” “Islam is a lie,” and “Abortion is murder!”
After going unnoticed for three periods, a guidance counselor saw James’s t-shirt and asked him to take the shirt off or wear the shirt inside out. When James refused, he was taken to the Assistant Principal’s office, where he was informed he would not be able to return to class that day with the shirt.
9 Mr. Nixon subsequently proceeded with a lawsuit
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7
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Holning Lau, “Pluralism: A Principle for Children’s Rights,” Harvard Civil Rights-
Civil Liberties Law Review 42 (Summer 2007), 366-67.
8
!
See Jamin B. Raskin, “ Tinker Turns 40: Freedom of Expression At School and Its
Meaning for American Democracy: No Enclaves of Totalitarianism: The Triumph and
9
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Unrealized Promise of the Tinker Decision,” American University Law Review 58 (June
2009), 1219; and Frederick, 493.
Nixon v. Northern Local School District Board of Education , 383 F. Supp. 2d 967 (S.D.
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Ohio 2005).
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against Sheridan Middle School in the United States District Court for the Southern
District of Ohio, Eastern Division.
10
In writing the majority opinion for the case, Judge George C. Smith sided with
Nixon in declaring that Sheridan officials did indeed violate the student’s First
Amendment rights. Judge Smith relied on the Tinker opinion in evaluating the t-shirt, noting that the mere fact that the groups singled out in Nixon’s t-shirt exist within the middle school “falls well short of the Tinker standard for reasonably anticipating a disruption of school activities.” 11 More importantly however, Judge Smith rejected the claim made by the school district that Nixon’s t-shirt constituted an invasion of the rights of others, stating “the Court is not aware of a single decision that has focused on that language in Tinker as the sole basis for upholding a school’s regulation of student speech.” 12 By focusing instead on the “ substantial disruption” test, Judge Smith affirmed the relevance of this standard alone and attacked the legal relevance of the
“rights of others” test.
An Ambiguous Test
Even had the “rights of others” test been highly utilized by lower courts in the time since Tinker , the Ninth Circuit still would have erred in applying this standard. This is due to the fact that the language of the test itself is far too vague to be considered an
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10 383 F. Supp. 2d 968 (S.D. Ohio 2005).
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11 383 F. Supp. 2d 973 (S.D. Ohio 2005).
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12 383 F. Supp. 2d 974 (S.D. Ohio 2005).
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acceptable standard for student speech. Justice Fortas made no effort to clarify what he meant when he deemed speech that interferes with “the rights of other students to be secure and to be let alone” unprotected by the First Amendment.
13 The Court failed to clarify what it means to be a secure student or what mode of speech is invasive enough to invade the rights of other students to be let alone. This vagueness causes a great deal of confusion in terms of applying the standard to specific instances of student expression.
Many scholars have taken note of the ambiguity within the “rights of others” language. Jennifer Lavarias has opined that this second Tinker prong is “wholly problematic because the standard is overly vague and broad.” 14 Other esteemed experts join Ms. Lavarias in expressing the viewpoint that the scope of the “rights of others” test is not well defined within Tinker .
15 Indeed, opinion is quite varied as to what Justice
Fortas really meant in writing this ambiguous standard. Some read this test as pertaining only to physical attacks on other students. Such is the position held by Abby Mollen, who points to the Fifth Circuit court cases decided three years prior to Tinker as a way of understanding the meaning of the “rights of others test.” According to Mollen, Justice
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13 393 U.S. 508 (1969).
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14 Jennifer Lavarias, “A Reexamination of the Tinker Standard: Freedom of Speech in
Public Schools,” Hastings Constitutional Law Quarterly 35 (Spring 2008), 594.
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15 See Clay Calvert, “ Tinker Turns 40: Freedom of Expression at School and Its Meaning for American Democracy: Tinker ’s Midlife Crisis: Tattered and Transgressed but Still
Standing,” American University Law Review 58 (June 2009), 1183, (Quoting Supreme
Court Justice Samuel Alito); Amanda L. Houle, “From T-Shirts to Teaching: May Public
Schools Constitutionally Regulate Antihomosexual Speech?” Fordham Law Review 76
(April 2008), 2506; Abby M. Mollen, “In Defense of the ‘Hazardous Freedom’ Of
Controversial Student Speech,” Northwestern University Law Review 102 (Summer
2008), 1517; and George R. Wright, “ Tinker and Student Free Speech Rights: A
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Functionalist Alternative,” Indiana Law Review 41 (2008), 111.
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Fortas’s concurring opinion to a denial of certiorari in Barker v. Hardway indicates that
Justice Fortas understood an invasion of another student’s rights to include physical assaults only. Indeed, in this opinion, Justice Fortas distinguished the action of Mary
Beth Tinker from “aggressive and violent” action, which clearly amounted to a
“destructive interference with the rights of others.” 16 According to Professor Mollen,
Justice Fortas’s clear distinction between the lack of any rights violation in Tinker and the violent violation of students’ rights in Barker clearly suggests that the Justice
“understood the students’ rights language to recognize a right to be free from physically confrontational speech.” 17
The ambiguity in the “rights of others” language has allowed lower federal court judges to define in their own terms the true meaning of this Tinker prong. For example,
Judge Joseph McGlynn, in his majority opinion for Slotterback v. Interboro School
District in the United States District Court for the Eastern District of Pennsylvania, held that “for student speech to invade ‘the rights of others,’ it must, apparently, be tortious.” 18
Likewise, Judge Kozinski, in writing his dissenting opinion for Harper v. Poway , also put forth his own take on the scope of the “rights of others” test. In criticizing the use of the prong by the majority in the Ninth Circuit, Judge Kozinski declared that the “rights of others” test “can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with the First Amendment
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16 Mollen, 1521 (quoting Justice Fortas in Barker v. Hardway , 394 U.S. 905, 905 (1969)).
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17 Mollen, 1521.
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18 Slotterback v. Interboro School District , 766 F. Supp. 280, 289 (E.D. Pa.).
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is well established.” 19 Both Judge McGlynn and Judge Kozinski are able to make these statements concerning the meaning of the “rights of others” test due to the fact that the language of the test is so vague. Judges are really left on their own to decide how broadly to read this prong. This, of course, is highly problematic for student speech rights, given that administrators can easily take the ambiguous “rights of others” language and expand its censorship scope to include virtually all instances of controversial student expression.
Indeed, the vague nature of the “rights of others” test allows school administrators to alter the reach of the Tinker standard. Due to the fact that the test is so ambiguous, teachers are able to view the standard as overly broad and censor student speech that is truly deserving of First Amendment protection. By reading the test as overly broad, teachers are able to lawfully discriminate against certain viewpoints that students hold.
Some scholars and judges have pointed out this permissibility of viewpoint discrimination in Tinker . Abby Mollen, for example, notes that certain courts “have suggested that Tinker itself implicitly accepted the permissibility of viewpoint discrimination in holding that a school can regulate student speech whenever it creates… interference with the rights of others.” 20 Indeed, administrators need simply use the ambiguous language of the “rights of others” test to censor speech that merely contradicts the beliefs of teachers.
This is precisely what administrators were able to do in Harper . Such is the viewpoint illuminated by Jay Sekulow. Sekulow references Harper dissenters who claim
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19
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20
445 F. 3d 1166, 1198 (9 th
Mollen, 1511.
Cir.) (Kozinski dissent).
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that since the 9 th Circuit upheld the validity of the Poway “Day of Silence” promoting tolerance of homosexuals, “but prohibited Harper from offering a different view,” school administrators simply engaged in viewpoint discrimination against speech that contradicts a pro-gay message.
21 Other scholars have offered the same opinion with regard to the Ninth Circuit’s holding in Harper , claiming that the court, by using the
“rights of others test,” justified the viewpoint discrimination carried out by Poway school officials.
22 Indeed, school officials at Poway High School did not agree with the antihomosexual message portrayed on Harper’s shirt. Rather than openly participate in viewpoint discrimination however, school officials took advantage of the vague “rights of others” test and argued that the speech interfered with the rights of gay students to be left alone and adequately participate in their studies.
An Impending Snowball Effect
Finally, the Ninth Circuit erred in its application of the “rights of others” test due to the fact that the acceptance of this language as a legitimate student speech standard would lead to a crippling snowball effect in our nation’s public schools. Indeed, the ambiguous language of the test would make it extremely easy for administrators to censor more and more instances of controversial student expression under the guise of an
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21 Jay Alan Sekulow, “ Tinker Turns 40: Freedom of Expression at School and Its
Meaning for American Democracy: Tinker At Forty: Defending the Right of High School
Students to Wear ‘Controversial’ Religious and Pro-Life Clothing,” American University
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Law Review 58 (June 2009), 1280 (quoting the dissent in Harper ).
22 Lavarias, 582, 584.
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invasion of another student’s rights. Under this test, there is no way of preventing a principal from suspending a student for wearing a hat that reads “America is for
Americans, not Immigrants,” simply because he or she disagrees with the message being presented. The principal would simply need to assure the court that the hat invaded the rights of immigrant students, a feat that would not be difficult to do should this standard attain full legitimacy. This, of course, would prompt the initiation of a snowball effect, as administrators would be encouraged to go after more and more student expression, until not even shirts with the message “I hate spaghetti” would be permissible under the
“rights of others” test. After all, a shirt that disparages spaghetti could be construed as an attack upon Italian American students who really enjoy ethnic cuisine.
A variety of scholars and judges concur with this assertion that the “rights of others” test could very well lead to a snowball effect that destroys all controversial instances of student expression. For example, Jay Alan Sekulow has noted that the acceptance of the “rights of others” test “would have a broad chilling effect upon student religious expression that could conceivably offend other students.” 23 Additionally, Judge
Kozinski, in his dissenting opinion for Harper , warned of the dangerous snowball potential of such a broad “rights of others” test, stating “surely, this language is not meant to give state legislatures the power to define the First Amendment rights of students out of existence by giving others the right not to hear that speech.” 24
The District Court opinion for the case Zamecnik v. Indian Prairie School District is illustrative of the likely development of a snowball effect should the “rights of others”
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23 Sekulow, 1282.
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24 Harper v. Poway Unified School District , 445 F.3d 1166, 1198 (9 th Cir.).
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exception be held as a legitimate standard for student expression. This case concerned a high school student, Heidi Zamecnik, who, during an April 2006 “Day of Silence” at
Neuqua Valley High School in Illinois, wore a t-shirt to school bearing the words “Be
Happy, Not Gay.” 25 After several students complained to administrators regarding
Zamecnik’s shirt, the young women was told to cross off the words “Not Gay” and return to class.
26 Ms. Zamecnik complied, but the following year, requested permission to wear the same message to school to commemorate the 2007 “Day of Truth,” a day intended to
“counter the promotion of the homosexual agenda and express an opposing viewpoint from a Christian perspective.” 27 School administrators refused to allow students to wear clothing depicting this message, which they considered to be “derogatory and negative” towards homosexuals.
28 Ms. Zamecnik then proceeded to file a lawsuit in the District
Court for the Northern District of Illinois, alleging abridgement of her First Amendment rights.
In crafting the majority opinion for this case, District Court Judge William T. Hart was heavily drawn to the Ninth Circuit’s view of the “rights of others” test in Harper .
Indeed, Judge Hart made certain to quote from the section of the Harper opinion that reads, “Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic…have a right to be free from such attacks while on school
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25 Zamecnik v. Indian Prairie School District , 2007 U.S. Dist. LEXIS 28172, 9,15 (N. D.
IL. 2007).
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26 2007 U.S. Dist. LEXIS 28172, 16 (N. D. IL. 2007).
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27 2007 U.S. Dist. LEXIS 28172, 17 (N. D. IL. 2007).
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28 2007 U.S. Dist. LEXIS 28172, 18 (N. D. IL. 2007).
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campuses.” 29 Using this portion of Harper as support, Judge Hart then went on to stress the importance of protecting minority groups from potentially demeaning statements, stating that high school administrators “have a legitimate interest in protecting gay students at…school from being harmed, both physically and psychologically.” 30
This opinion from Judge Hart is the first flake of snow in what will surely be a very large snowball of censorship should the “rights of others” exception gain widespread acceptance within judicial opinions. A statement such as “Be Happy, Not Gay” is arguably much less abrasive than the type of message contained within Harper’s t-shirt.
However, due to the vague nature of this Tinker prong, even such a simple statement as this can be struck down as an unfair attack upon homosexual students everywhere. And should this type of harmless statement be struck down under the backdrop of the “rights of others” test, administrators will most likely continue to stretch their reach and ban more and more instances of student expression under this test. Shirts bearing the phrase
“Be Democrat, Not Republican” would certainly be banned from public school hallways, seeing as they direct a disparaging and negative comment toward a particular group of students. And then what would our young minds come to think of American society as?
Why, nothing more than a fake, sugar filled world, in which no one says what they really feel and only positive statements ring though the air.
In coming to a conclusion in Harper , the Ninth Circuit erred in applying the flawed “rights of others” standard within Tinker . The standard bears very little legal weight seeing as the Court did not use the standard to ultimately determine the
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29 2007 U.S. Dist. LEXIS 28172, 25 (N. D. IL. 2007).
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30 2007 U.S. Dist. LEXIS 28172, 33 (N. D. IL. 2007).
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constitutionality of the armbands in Tinker and lower federal courts have completely ignored the standard in ruling on student speech cases postTinker . The standard is also flawed in nature due to the fact that the Court’s language in articulating the standard is extremely vague and the increased use of the standard is likely to cause a “snowball effect” in which more and more instances of worthy student expression are censored.
“Substantial Disruption:” A Flawed Test
If the Ninth Circuit had chosen to follow the precedent set by other lower federal courts in the realm of student speech, the judges would have applied the “substantial disruption” exception to the facts of Harper . However, even if the Ninth Circuit had used this more conventional test, the judges would most likely have upheld the decision to discipline Harper. This is due to the fact that Tinker ’s “substantial disruption” test is seriously flawed. First, the language of the test is highly ambiguous, leaving room for administrators to falsely anticipate disturbances and broaden the reach of the test.
Additionally, the test is unsuited to deal with the new mediums of communication used by students in the twenty-first century, such as Internet blogs and instant message forums.
An Ambiguous Test
The first fatal flaw that plagues Tinker ’s “substantial disruption” test is the vague nature of the language. Indeed, the Court in Tinker never clearly defines what magnitude of disturbance qualifies as “substantial” or whether teachers have the ability to censor
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speech by simply forecasting disruption. Justice Fortas, in outlining the test within the
Tinker opinion, said only that any speech that would “substantially interfere with the work of the school” is not to be afforded First Amendment protection.
31 It is not clear at all how much interference qualifies as “substantial” or what the “work of the school” actually is.
Ambiguity Allows for Anticipation
What this vague language within the “substantial disruption” test does is allow administrators to censor student speech based on the mere anticipation of a material disturbance. Indeed, since the Tinker Court did not specify whether the anticipation of disruption was a lawful means of suppressing speech, administrators are able to justify such action while still remaining within the bounds of the “disruption” standard. This ability of teachers to anticipate disruption serves as a substantial threat to student speech rights, seeing as no teacher can accurately predict one hundred percent of the time what kind of reaction a particular type of speech will get out of the rest of the student body.
These predictions become even less reliable when you have teachers who are generations apart in age from the students they are attempting to censor. Indeed, a statement that may be offensive to an elderly English teacher may not induce a blink from the majority of students in the eighth grade. And yet, if the aged administrator can demonstrate that he or she reasonably anticipated disruption, the censorship of harmless expression may continue.
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31 393 U.S. 508, 509 (1969).
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There are a number of federal judges who support the fact that administrators are able to ban student speech due to the anticipation of a disturbance. For example, Senior
Circuit Judge O’Sullivan of the Sixth Circuit, in crafting the majority opinion for the case
Guzick v. Drebus , reasoned that “those charged with providing a place and atmosphere for educating young Americans should not have to fashion their disciplinary rules only after good order has been at least once demolished.” 32 Other federal court judges have placed similar importance in the ability of administrators to anticipate disruption and prevent disturbances from occurring on school grounds.
33 However, these judges fail to place enough importance in the right of students to retain their First Amendment rights within the school environment. Given that administrators are rarely accurate in predicting disruption, and given the fact that other alternatives exist besides mass censorship, this “anticipation” ability within Tinker seems highly obtrusive.
There are a number of cases that illustrate the problem with allowing administrators to anticipate disruption and thereby censor student expression. The case of LaVine v. Blaine School District is one such example. The circumstances surrounding this case involve an eleventh grade student, James LaVine, who wrote a poem for his
English class entitled “Last Words.” The poem was a fictional account of a school shooting, describing in highly vague terms a student who goes to school and kills 28 of his or her fellow students. The poem contained gruesome and powerful language, such as
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32 Guzick v. Drebus , 431 F.2d 594, 600 (6 th Cir. 1970).
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33 Phillips v. Anderson County School District , 987 F. Supp. 488, 492 (D.S.C. 1997).
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the lines, “all I could hear, were screams, screams of friends, screams of co-workers, and just plain, screams of shear horror, as the students found their slayen classmates.” 34
After showing the poem to his mother, James LaVine brought the poem to school and asked his English teacher what she thought of his work of art. James’s English teacher immediately became concerned and contacted the school counselor, who in turn contacted the school’s vice principal.
35 At the bequest of a psychiatrist with the
Community Mental Health Crisis Line, the police were sent to James’s home to conduct a welfare check. The police found James not to be a threat to himself or others. However, the Principal of James’s high school, Dan Newell, decided to expel James from school anyway.
36 James then filed a lawsuit in the United States District Court for the Western
District of Washington, alleging school administrators had violated his First Amendment rights.
37 The District Court held that administrators did indeed violate the constitutional rights of James LaVine, and ordered that any negative documentation in the student’s school file be removed.
38 The school district then appealed the decision to the Ninth
Circuit Court of Appeals.
In drafting the majority opinion for LaVine, Judge Raymond C. Fischer relied on the “anticipation” ability within the “substantial disruption” test to deny James LaVine’s
First Amendment argument. Indeed, Judge Fischer noted that, “ Tinker does not require
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34 LaVine v. Blaine School District , 257 F.3d 981, 983 (9 th Cir. 2001).
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35 257 F.3d 981, 984 (9 th Cir. 2001).
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36 257 F.3d 981, 985 (9 th Cir. 2001).
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37 257 F.3d 981, 986 (9 th Cir. 2001).
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38 257 F.3d 981, 987 (9 th Cir. 2001).
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certainty that disruption will occur, ‘but rather the existence of facts which might reasonably lead school officials to forecast substantial disruption.’” 39 In determining whether or not school authorities reasonably forecasted disruption after seeing James’s poem, Judge Fischer looked at a select number of facts. The Ninth Circuit judge noted that James had previously thought about suicide, had been involved in a domestic dispute with his father, and had broken up with and continually stalked his girlfriend. Based on the combination of these circumstances, Judge Fischer determined that school authorities acted reasonably in forecasting substantial disruption.
40
LaVine clearly illustrates the flawed nature of a test that allows for the mere anticipation of disruption. Indeed, it is impossible to conclude from a small number of isolated incidents that a student is going to create a violent disturbance in the school environment. This test provides no check against administrators who seek to censor speech that is not violence inducing, but rather art depicting the incredible angst that many teenagers feel from time to time. Many teens have fleeting thoughts about suicide and become extremely upset after the end of a relationship. These are normal feelings, and teenagers deal with these feelings in different ways. LaVine turned to poetry to express his emotions, an outlet which can be very healthy and calming for students. This was a non-violent method of dealing with intensely emotional thoughts, and yet, because administrators are able to anticipate disruption, the speech was censored.
A second case that illustrates the problems with the anticipation of disruption is the case Governor Wentworth Regional School District v. Hendrickson . This case
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39
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40
257 F.3d 981, 989 (9 th
257 F.3d 981, 990 (9 th
Cir. 2001).
Cir. 2001).
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concerned two contentious groups of students at Kingswood Regional High School in
New Hampshire. One group was known as the “gay students,” while the other rival group was known as the “rednecks.” 41 Tensions between these two rival groups were extremely high throughout the 2005 academic year. Then, on March 28, a member of the
“gay students,” Paul Hendrickson, wore a patch to school depicting a “No Swastika” symbol.
42 Upon seeing the patch, the Principal of Kingswood, Mr. MacMillan, requested the patch be removed, as he saw it as an attack, “specifically aimed at, and designed to provoke a potentially disruptive or even violent response from that group (the rednecks).”
When Hendrickson refused to remove the patch, Mr. MacMillan informed him that he needed to leave school premises.
43 In the days that followed this meeting, Hendrickson came to school wearing the patch a number of other times. Each time he did, he was informed that he would have to leave school grounds. As a result of being dismissed on these multiple occasions, Hendrickson filed a lawsuit in the United States District Court for the District of New Hampshire, citing the abridgment of his First Amendment rights.
In crafting the majority opinion for this case, Judge Steven J. McAuliffe first noted the presence of the anticipation ability of administrators under the disruption test, stating, “It is…well established that school administrators need not wait until after incidents of disruption or violence have occurred before they step in.” 44 After making
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41 Governor Wentworth Regional School District v. Hendrickson , 421 F. Supp. 2d 410,
413 (D.N.H. 2006).
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42 421 F. Supp. 2d 410, 414 (D.N.H. 2006).
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43 421 F. Supp. 2d 410, 415 (D.N.H. 2006).
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44 421 F. Supp. 2d 410, 421 (D.N.H. 2006).
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this point clear, Judge McAuliffe then rejected Hendrickson’s claim that the patch was simply a political message of tolerance and held that school administrators were reasonable in censoring the expression. According to the judge, “Given the history, school authorities could easily conclude that the “redneck” group was being deliberately painted by Hendrickson’s group as Nazis, fascists, or oppressors.” 45 Indeed, the judge determined that the school officials reasonably took the patch to be a “taunt,” and a symbol that was “meant to be confrontational.” Adhering to the language of the
“substantial disruption” test, Judge McAuliffe stated that “school authorities were not required to put their heads in the sand and allow further escalation of that hostility, and concomitant disruption of the school environment, simply because Hendrickson cloaked his patch in a laudable First Amendment justification.” 46
Governor Wentworth once again illustrates the problems with a standard that allows for the anticipation of disruption. Indeed, it is highly unlikely that, if left alone, this “No Nazi” patch would have provoked violence amongst the student body.
Considering the “gay students” and the “rednecks” already knew they were hated by each other, the patch was unlikely to be seen as a surprise attack. Indeed, the patch simply affirmed what was already understood between the two groups: that each one did not approve of the others’ beliefs. One could argue that since the term “Nazi” is representative of such grave evil, the “redneck” students were likely to become extremely upset and violent. However, this argument does not hold, as many of the “redneck” students revered fascism and considered the “Nazi” label in a positive light. Indeed, as
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45 421 F. Supp. 2d 410, 423 (D.N.H. 2006).
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46 421 F. Supp. 2d 410, 423 (D.N.H. 2006).
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mentioned by the court in Governor Wentworth , “some of the boys in the ‘redneck’ group would occasionally accost (pupils) in the school’s hallways with renditions of the Nazi salute, ‘Seig Heil.’” 47 Given this fact, it seems unlikely that many of the “rednecks” would have been so insulted by the patch as to resort to violence. Indeed, this patch, rather than serving as a provocation of violence, merely symbolized an already wellknown rejection of a particular belief system held by a group of students within
Kingswood. However, due to the anticipatory language found within the “substantial disruption” test, this patch was able to be suppressed.
One may argue that it is worth having this anticipation ability embedded within the “substantial disruption” test, seeing as it may some day prevent a violent act that does arise from an instance of student expression. However, this argument does not stand. It must be said that the importance of freedom of expression within the school environment is too critical to be pushed aside that often. And indeed, there are other ways of preventing violent acts from occurring on campus besides censoring virtually every instance of controversial expression. For example, having guidance counselors conduct extensive interviews with students who create seemingly violent speech, to see if they are truly having problems, seems to be a plausible alternative to overly broad censorship.
This way, students who simply enjoy creating dark works of art, but are in a perfectly fine mental state, will not be forced to stifle their imaginative efforts because of an
“anticipation of disruption.”
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47 421 F. Supp. 2d 410, 414 (D.N.H. 2006).
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Ambiguity Allows for Over Breadth
In addition to allowing for the mere anticipation of disruption, the ambiguous language of the “substantial disruption” test also allows administrators to widen the reach of the test. Again, the Court in Tinker provided no clarity as to what exactly constitutes a disruption of a substantial nature. This makes the application of the standard extremely open ended and thereby left to the discretion of school administrators, an assertion that is pointed out by a number of legal scholars. Indeed, Mark Yudoff referred to the application of the vague “substantial disruption” test as “treacherous, difficult, and hard to predict.” 48 Thomas C. Fischer suggests the vague nature of the “substantial disruption” test affords school authorities a very powerful censorship weapon, “a weapon made more potent by a great deal of judicially-mandated latitude for official discretion.” 49 Indeed, the ambiguous language of the test means that the discretion concerning the concrete application of the test falls on school authorities. With this discretionary power, teachers are able to expand the breadth of the standard and ban any speech that causes even the slightest disturbance within the school environment.
There are a number of cases that demonstrate this ability of administrators to expand the scope of the “substantial disruption” test. One such case is Bystrom v. Fridley
High School Independent School District No. 14 . This case involved a group of students
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48 Mark Yudoff, “Twenty-Five Years After Tinker : Balancing Students’ Rights: Tinker
Tailored: Good Faith, Civility, and Student Expression,” St. John’s Law Review 69
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(Summer/Fall 1995), 367.
49 Thomas C. Fischer, “Whatever Happened To Mary Beth Tinker and Other Sagas in the
Academic ‘Marketplace of Ideas,’” Golden Gate University Law Review 23 (Spring
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1993), 366.
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at Fridley High School in Minnesota who, in June of 1986, distributed to their classmates an unofficial newspaper called the “Tour de Farce No. 4.” Distribution of the paper occurred in the school cafeteria prior to the start of class, so as not to interrupt any scheduled academic exercises.
50 While the newspaper contained a number of humorous articles, it also included a variety of articles tackling more substantive issues, such as the debate over whether the school should be an open campus and the problem of smoking in the school bathrooms. The newspaper also contained an article about a recent act of vandalism that had been committed at the home of a Fridley High School teacher. The student author of this article ended his overview of the situation by saying “I would like to say that we at Tour de Farce find this act pretty damn funny.” After reviewing the entire newspaper, the Assistant Principal of Fridley High, Brian Ingvalson, decided to suspend the group of students who put out the newspaper, telling the pupils that the school did not permit “advocating violence against the homes of teachers.” These students then filed a lawsuit with the United States District Court for the District of
Minnesota, alleging the violation of their First Amendment rights.
51
In drafting the majority opinion for this case, Judge Donald D. Alsop first noted that since the expression in question was an unofficial newspaper not affiliated with the school, the court needed to look at the standards within Tinker rather than Hazelwood , which deals with school-sponsored speech. In looking at Tinker , Judge Alsop noted the presence of the “substantial disruption” test, stating, “School officials may regulate
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50 Bystrom v. Fridley High School Independent School District No. 14 , 686 F. Supp.
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1387, 1389 (D. Minn. 1987).
51 686 F. Supp. 1387, 1390 (D. Minn. 1987).
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expression of opinions which ‘materially and substantially interfere(s) with the requirements of appropriate discipline in the operation of the school.’” Judge Alsop then went on to find that the distribution of “Tour de Farce” did indeed cause material disruption within the school environment, saying, “Plaintiffs’ (students) affidavits fail to negate the testimony of defendants’ (school) affiants that material disruption of the
Fridley High School activities occurred as a result of the publication of Tour de Farce No.
4.” 52 Consequently, Judge Alsop determined that school officials acted well within the bounds of Tinker and did not, in fact, violate their students’ First Amendment rights.
This opinion given by Judge Alsop is extremely troubling, considering that the judge offers no detail whatsoever as to the amount of disruption that actually occurred within Fridley High School. The judge’s “comprehensive” overview of the topic amounts to two sentences, in which he states that the school offered “affidavits of five teachers attesting that disruption did occur,” while the students offered affidavits contending that no disruption occurred.
53 The judge offers no description as to the type of disruption that is alleged to have occurred. Rather, the judge simply defers to the affidavits of the school officials and assumes that what these teachers have said is accurate and akin to “substantial disruption.”
The highly vague nature of the “substantial disruption” test allowed school administrators to censor the “Tour de Farce” newspaper in light of minimal disruption.
This is an extremely dangerous decision for Judge Alsop to uphold, considering that under this precedence, speech that really does belong in the school environment is in
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52 686 F. Supp. 1387, 1392 (D. Minn. 1987).
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53 686 F. Supp. 1387, 1392 (D. Minn. 1987).
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danger of being driven away without any real explanation behind it. While the “Tour de
Farce” did contain some articles of questionable taste, stories such as those discussing the possibility of an open campus and smoking in the school bathrooms are indeed deserving of a place within the school environment, as they have to do with issues that are very important to the student body. However, administrators were able to censor these important articles due to the lack of a clear standard outlining what it means to substantially disrupt the school environment. Absent any clear standard, Judge Alsop was forced to defer to the wisdom of school officials and deem the censorship of the newspaper lawful. Indeed, the court’s opinion did not need to go into any detail as to the type of disruption caused by the newspaper. For under such a vague standard as the
“substantial disruption” test, deference is simply given to those adults in the school environment. This deference is highly troublesome, considering it leaves in place no oversight of administrators who censor student speech that is in fact deserving of First
Amendment protection.
A second case that illustrates the ability of administrators to expand the reach of the “substantial disruption” standard is Broussard v. School Board of the City of Norfolk .
This case involves a student, Kimberly Broussard, who, on April 17, 1991, wore a t-shirt to school bearing the phrase “Drugs Suck!” A Communication Skills teacher at Blair
Middle School, the institution Kimberly attended, noticed the phrase on the shirt and immediately escorted the young girl to the main office. Once there, the school’s
Assistant Principal, Dr. Grant, informed Kimberly that she would have to turn the shirt
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inside out due to the “offensiveness of the word ‘suck.’” 54 After a series of phone calls back and forth with her mother, Kimberly decided that she did not wish to turn her shirt inside out. The Principal of Blair Middle School, Mr. Caprio, then gave Kimberly the option of either returning to class with appropriate attire or going home for the remainder of the school day. Kimberly chose to keep the shirt on, and was subsequently released into the care of her stepfather.
55 Kimberly then filed a lawsuit with the United States
District Court for the Eastern District of Virginia, claiming a violation of her First
Amendment rights.
In drafting the opinion for the court, Judge Robert G. Doumar made due note of the presence of the “substantial disruption” test within Tinker . In applying the test to the circumstances of Broussard , Judge Doumar determined that school officials did reasonably anticipate material disruption in light of the phrase on the t-shirt. In an effort to support this finding, Judge Doumar referenced the testimony of several Blaire teachers, who claimed that, “children aged eleven to fifteen are easily distracted by language with sexual connotations.” The judge also referenced the testimony of the school principal, who stated that, “most students at the school would understand ‘suck’ to have an underlying sexual meaning, regardless of its context.” 56 This was the extent of support
Judge Doumar offered in explaining why school officials rightfully censored this instance of student expression under the Tinker standard.
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54 Broussard v. School Board of the City of Norfolk , 801 F. Supp. 1526, 1528 (E.D. Va.
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1992).
55 801 F. Supp. 1526, 1529 (E.D. Va. 1992).
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56 801 F. Supp. 1526, 1535 (E.D. Va. 1992).
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Broussard illustrates once again the problem with upholding such a vague standard as the “substantial disruption” test. Here, once again, school administrators were able to censor speech that is deserving of First Amendment protection because they deemed it to fall under the “substantial disruption” exception. In light of the testimony by teachers and the fact that the standard contains such vague language, Judge Doumar was unwilling to usurp the authority of the public school and declare the shirt constitutional. As a result, the censorship committed by school authorities was upheld.
This affirmation of this censorship is highly troublesome, considering the speech in this case is clearly deserving of First Amendment protection. Indeed, it can hardly be said that a t-shirt with the phrase “Drugs Suck!” is likely to cause the type of “substantial disruption” that Justice Fortas warned of over four decades ago. First, the fact that most middle school students would see the word “suck” as sexual when combined with the word “drugs” is highly suspect. Even to a young mind, it simply would not make any sense to attach a sexual meaning to the word “suck” when it is a part of this phrase.
Secondly, even if students did somehow take away a sexual meaning from the word “suck” in this context, it is highly unlikely they would be so pre-occupied with the word that disruption of a substantial proportion would occur. Indeed, during the transitional time of puberty, middle school students are distracted by sexual thoughts constantly. And yet, students still somehow find a way to learn and pass their courses.
This sexual distraction is not going to go away with the banning of the word “suck” on a t-shirt. And that is acceptable, for these distractions are not substantial enough to prevent students from learning in the classroom. Unfortunately, some administrators have a different mindset, and under the vague “substantial disruption” test, they are able to
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censor speech that amounts to nothing more than one of the thousands of disruptive thoughts that flitter through the minds of pupils every day. It certainly must be said that there is a greater interest in preserving student speech rights than there is in attempting to prevent students from thinking even a single distracting thought during the school day.
Unfit for the 21 st Century
There is one final flaw with Tinker ’s “substantial disruption” test, and that is the inability of the standard to cope with the technologically evolving mediums used for student expression. A growing number of students are turning to the Internet to express their viewpoints, and the “substantial disruption” test, drafted over four decades ago, is far too outdated to adequately judge the permissibility of this type of speech. Justice
Fortas had no way of knowing that the invention of the Internet would completely transform the way in which people communicate with one another. His test was not meant to deal with speech that is created on a home computer and somehow finds its way onto school grounds.
And yet, federal judges today are attempting to apply this outdated standard to exactly this type of expression. Indeed, the “substantial disruption” test is being used to censor student expression created entirely off-campus, resulting in a school invasion of the private home environment. Federal judges are of course able to apply the Tinker test in this way due to the vague language used to outline the standard. Since Justice Fortas was not at all clear as to what classified as “substantial disruption,” federal judges are able to assume that this test may be applied to speech that is created away from school
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grounds. The ability of this test to apply to off-campus expression represents a massive abridgment of the rights of American public school students. The reason why students have limited First Amendment rights within the school environment is because the institution of the public school is meant to educate young minds, a purpose that is crucial to the future of our nation. However, outside of the school environment, students must be afforded the same rights as adults. There is no greater purpose for students outside of the school than to teach them the true meaning of the Constitution. Allowing school administrators to extend their censorship reach to the private homes of students only reinforces the notion that students aren’t really American citizens. Indeed, this invasion into the home environment reinforces the notion that students are simply puppets that can be moved in any which way by the public school system.
Many First Amendment scholars express these same fears with regard to the application of the “substantial disruption” test to Internet speech created away from school grounds. Frank LoMonte, executive director of the Student Press Law Center in
Arlington, Virginia, warns that if the test continues to be applied to off-campus expression, “then there may be no constitutional impediment to a school policy declaring entire topics – e.g., opinions (positive or negative) about teachers or administrators – offlimits for students to discuss, even when they are at home using e-mail… or posting on social networking pages.” 57 Indeed, students will be at the will of administrators in terms of what they can and cannot say about an increasingly broad array of topics.
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57 Frank D. LoMonte, “ Tinker Turns 40: Freedom of Expression at School and Its meaning for American Democracy: Shrinking Tinker : Students Are ‘Persons’ Under Our
Constitution – Except When They Aren’t,” American University Law Review 58 (June
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2009), 1355.
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There is a currently a growing body of cases that demonstrate the problems with extending the “substantial disruption” test to off-campus expression. One such troubling case is Doninger v. Niehoff . This case involves a dispute that took place between school administrators and Student Council officers at Lewis Mills High School in Burlington,
Connecticut. Student council members, including Avery Doninger, had been planning for a battle-of-the-bands contest known as “Jamfest” to take place on April 28, 2007.
However, when the teacher in charge of running the sound equipment suddenly pulled out of the event shortly before it was to take place, school administrators informed the student council that the event would have to be moved to another date.
Fearing there was no alternate date to host the event, Avery and other student council members sent emails to the greater Burlington community, asking people to contact the District Superintendent and request that the “Jamfest” date not be moved. As a result of this email, both the Superintendent, Paula Schwartz, and the Principal of Lewis
Mills High School, Karissa Niehoff, received an influx of phone calls regarding the postponement of the “Jamfest” date.
58 Upon seeing Ms. Avery in the hallway, Principal
Niehoff expressed her disappointment that the students had “resorted to a mass email rather than coming to her or to Schwartz to resolve the issue,” and requested that Ms.
Doninger work with her to send out a second email that corrected the many inaccuracies administrators found within the students’ initial email. Rather than doing this, however,
Avery decided to take out her frustrations on her Internet blog, a publicly accessible forum hosted by the website livejournal.com. In her blog, Avery stated that, “Jamfest is cancelled due to douchebags in central office.” Avery also expressed gratitude to the
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58 Doninger v. Niehoff , 527 F.3d 41, 44 (2 nd Cir. 2008).
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many people who called in to the Principal and the Superintendent asking for the date to be moved. Additionally, Avery included in her blog the first email sent out by the student council members, as well as a letter her mother had sent in to the Principal and
Superintendent.
59
Following this blog post, Ms. Schwartz and Ms. Niehoff continued to receive phone calls and emails regarding the date of “Jamfest.” A meeting was finally held with all of the student council members who sent the original email, and a new “Jamfest” date of June 8, 2007 was scheduled.
60 A few days after this meeting, however, Superintendent
Schwartz came across Avery’s blog post for the first time. The Superintendent immediately contacted Principal Niehoff, who decided to punish Avery by not allowing her to run for Senior Class Secretary. In coming to this decision, Principal Niehoff took into account the fact that the post “contained vulgar language and inaccurate information.” Upon being informed of this punishment, Ms. Doninger refused to withdraw her candidacy for Senior Class Secretary. School officials nevertheless refused to put Ms. Doninger’s name on the ballot.
61 Following these events, Avery’s mother,
Lauren Doninger, filed a lawsuit with the Connecticut Superior Court, alleging the violation of her daughter’s First Amendment rights. The case was then moved to the
District Court for the District of Connecticut, where it was determined that school officials did not violate Avery’s First Amendment rights. Ms. Doninger then appealed the case to the Second Circuit Court of Appeals.
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59
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60
527 F.3d 41, 45 (2 nd Cir. 2008).
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527 F.3d 41, 45 (2 nd Cir. 2008).
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61 527 F.3d 41, 46 (2 nd Cir. 2008).
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In writing for the majority, Circuit Judge Livingston first outlined the language of
Tinker ’s “substantial disruption” test. Judge Livingston then took the liberty of applying this test to off-campus expression, stating, “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment.’” 62
Judge Livingston noted that Avery’s blog post was inevitably going to reach school grounds and substantially disrupt school activities.
63 In laying out his case against Ms.
Doninger, the judge pointed to a number of actual instances of disruption and facts that would lead administrators to forecast disruption. First, Judge Livingston noted that the post was “disruptive of efforts to resolve the ongoing controversy” surrounding the
“Jamfest” date. Secondly, Judge Livingston concluded that it was reasonable for administrators to forecast disruption within the student body, considering Ms. Doninger testified herself that by April 25, students at Lewis Mills High were “all riled up” over the “Jamfest” controversy. Finally, the judge noted several actual instances of disruption, such as the phone calls made to the Principal and Superintendent and the fact that Ms.
Doninger had to be called away from class one morning to deal with the controversy.
64
This opinion by Judge Livingston is troublesome for two reasons. First, the disruptions mentioned by the judge hardly seem to qualify as substantial enough to be considered worthy under Tinker . There is no connection between speech that disrupts the resolution of a conflict amongst a select number of individuals and speech that interferes
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62
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63
527 F.3d 41, 48 (2 nd Cir. 2008).
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527 F.3d 41, 50 (2 nd Cir. 2008).
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64 527 F.3d 41, 51 (2 nd Cir. 2008).
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with the educational duty of school administrators. In addition, it can hardly be said that phone calls to two administrators amounts to the type of “substantial disruption” that
Justice Fortas warned about in his Tinker opinion. Given the fact that these administrators did not personally teach any students, as well as the fact that the phone calls and emails could easily be dealt with at a later date, it is highly unlikely that these communicative attempts substantially interfered with the educational duties of the school.
Even more troublesome in this opinion, however, is the fact that Judge Livingston so easily applied the “substantial disruption” test to Avery’s off-campus blog post. Judge
Livingston himself made note of the fact in his opinion that, “The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that…does not occur on school grounds or at a school-sponsored event.” And yet, despite this admission,
Judge Livingston thought nothing of declaring in the very next sentence that the Tinker standard was indeed meant to cover off-campus expression when it is “foreseeable that the off-campus expression might also reach campus.” 65 This indeed is a very troubling conclusion to come to. Everything that is said by a student off-campus could potentially reach school grounds via a classmate or a note or the Internet. And because there is this potential, federal judges feel it is necessary to intrude upon the students’ private lives and regulate what they can and cannot say.
This ruling has the potential to trigger a gargantuan snowball effect, in which all things students say or post on the Internet will eventually come under strict scrutiny.
Students will become petrified to truly speak their minds, given the constant fear of censorship. Indeed, students will most likely come to view themselves as prisoners of the
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65 527 F.3d 41, 48 (2 nd Cir. 2008).
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public school system, rather than as actual United States citizens. And they will be correct in classifying themselves as such. For a student who cannot cherish the full freedoms of the First Amendment anywhere can hardly be thought of as a free soul under the Constitution.
Clearly, the “substantial disruption” exception is, much like the “rights of others” test, inherently flawed and unfit to be an everlasting standard within the realm of student speech. The language used to articulate the exception is extremely vague, which allows school officials to censor speech based on the mere anticipation of disruption. The vague language has also lead to much confusion as to what exactly qualifies as a “substantial” disturbance within the educational environment. As a result of this ambiguity, federal courts have increasingly deferred to the viewpoints of school administrators as to what classifies as a censorable disruption. Without strict judicial oversight, teachers have been able to broaden the reach of the exception to include that speech which is truly deserving of First Amendment protection. Finally, the “substantial disruption” test is a flawed standard in today’s age because it makes no mention of speech articulated through new technological mediums, such as the Internet. Indeed, a standard that does not discuss the permissibility of student speech articulated through these new mediums cannot possibly be a standard that is relevant within the 21 st century.
The flawed “substantial disruption” test, along with the flawed “rights of others” exception, renders Tinker a poor standard for determining the outcome of modern student speech cases. Indeed, these two flawed exceptions have fostered an environment in which courts are deferential to the judgment of school authorities. This increased deference has, in turn, resulted in the censorship of many worthy instances of student
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expression. There is a great need for a new standard for student speech that recaptures the spirit of Tinker , a spirit that values the presence of the First Amendment in school and charges the federal court system with ensuring the survival of this constitutional protection.
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CHAPTER THREE:
A NEW APPROACH TO STUDENT SPEECH
The Ninth Circuit’s application of the Tinker standard to the Harper case serves as yet another illustration of the problems inherent in the current body of student speech law. Under Tinker ’s flawed “rights of others” test, the Ninth Circuit was able to censor
Harper’s shirt. Indeed, the reasoning behind this censorship was that the shirt interfered with the right of gay students to be left alone. Not only is the reasoning behind this test flawed, but also the use of the test itself is unprecedented in judicial history. What the
Ninth Circuit should have done in applying the Tinker standard is utilize the “substantial disruption” test, a standard with a substantial history of use within the judicial system.
However, even had the Ninth Circuit applied the “substantial disruption” test to the facts of Harper , the court still would have come to an errant conclusion. This is due to the fact that the “substantial disruption” test is ill equipped to deal with instances of student expression, such as Harper’s shirt, that truly do belong in the school environment.
Indeed, a new student speech standard is needed in order to expand the realm of protected expression.
This chapter will attempt to outline such a new standard. The standard that will be proposed is comprised of two prongs. The first prong will be used to filter out that speech which is never deserving of a place within the school environment. This category will include speech that is age-inappropriate, speech that contains graphic sexual content or images, speech that targets individual students, and speech that amounts to a “true threat” against another individual or population sect. Any student expression that
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survives beyond this initial prong will then be subjected to a second prong in order to determine whether it is permissible within the public school. This second prong will be sub-divided into two sections. In order to pass the first sub-section, the student speech will need to contribute in some way to the development of students as American citizens.
Should the speech be shown to contribute to this objective, the expression will then have to pass a “poisoning” test. This new “poisoning” test will serve as an alternative to the highly ambiguous and administrator-friendly “disruption” test. This new test will ensure that censorship of student expression is used as a last resort and that school officials place the training of students as American citizens in higher regard.
The First Prong: Is the Speech Worthy of Protection?
The new standard for student expression that this chapter proposes is comprised of two separate prongs. The initial prong serves as a type of filter, weeding out those instances of student speech that are so detrimental to the school environment that they can never be awarded protection within the public school hallways. There are four main types of speech that are totally unworthy of First Amendment protection within the school environment. These four types are speech that is age-inappropriate, speech that contains graphic sexual language, speech that singles out particular students, and speech that contains a “true threat” against a particular group of people.
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Age-Inappropriate Speech
The first category of expression that would be deemed unworthy of any First
Amendment protection under this new student speech standard would be that speech which is age-inappropriate. This rule would only be applicable in situations where children in grades below the high school level were present. Indeed, there is a compelling interest to prevent young children from being exposed to certain controversial topics, such as homosexuality and drug legislation. Up to a certain age, the right to introduce children to these topics rests with the parents. After all, the parents are the ones raising the child, and they should be allowed to decide when their child is ready to grasp certain topics. Parents should not have to fear their child is going to be informed about the positive effects of marijuana from a t-shirt worn by another elementary school student.
A hypothetical example of a type of speech that would be deemed ageinappropriate under this new standard is the book Heather Has Two Mommies . Written by Lesléa Newman, this children’s story is about a girl in pre-school who is raised by a homosexual couple. In the story, the young girl finds out about the other types of families her fellow classmates belong to. In addition, the original edition of the book includes a discussion about how “the birth mother was artificially inseminated by an anonymous donor.
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This book, if circulated within the elementary school environment, would certainly be deemed age-inappropriate. Children are unlikely to have yet been introduced to the topic of homosexuality by the time they reach their elementary school years, and many parents prefer their children not learn about this issue until they become older.
While some may scoff at these parents who wish to shield their young children from this issue, it must be said that one critical right of a parent is the ability to raise their children in a manner they see fit. Indeed, when it comes to teaching young children about sexuality and morality, this right rests in the parents alone. The presence of a book on homosexuality in the pre-school and elementary school environment would interfere with this parental right by introducing the controversial subject to young children without parental consent. Hence, this book would be classified as age-inappropriate under this new standard for student speech.
While parents do have a right to determine when and how their young children are introduced to certain social and biological topics, this control should not continue indefinitely. At a certain point, students begin the transition into adulthood and need to be exposed to the many viewpoints within greater society, even those that go against the moral fiber of their parents. The public high school is the setting of this transitory period, and it is here that students must start to become aware of the controversial issues that contemporary American society faces. There is no need, however, to begin exposing children to these issues before they enter the preparatory institution for American citizenship known as the public high school. While the high school environment must ready students for the wide variety of opinions on social and political topics that inundate society today, elementary and middle schools should be thought of more as day-time
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parents, providing students with a strong base in manners and knowledge from which they can build off of in the high school environment.
Graphic Sexual Content or Images
As was just expressed, speech that is age-inappropriate is deserving of no place amongst young children within the public school system. However, this paper must now expand upon this assertion and contend that there are certain categories of speech that are age-inappropriate even when presented amongst high school students. For example, speech that contains graphic sexual language or images is in no way deserving of First
Amendment protected within the high school environment. This type of speech does nothing to add to the necessary healthy debate among students regarding important social topics. Indeed, the purpose of ensuring the presence of the First Amendment in the school environment is so that students can prepare themselves for entry into greater
American society. The ability to express graphic opinions on the topic of sexuality in no way contributes to the development of students as well-informed American citizens.
Rather, sexually graphic instances of expression cause high school students, who are entering their sexual prime, to become greatly distracted. These types of distractions, that have nothing to do with students’ preparation for American citizenry, are not deserving of a place within the school environment.
The Supreme Court has recognized that there is a need for greater restriction when it comes to sexual speech disseminated amongst minors as opposed to sexual speech distributed to adults. Indeed, Justice Brennan, in the majority opinion for
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Ginsberg v. New York , expressly stated this need to protect children from sexual material that, while appropriate in the adult setting, is harmful to young minds. This case involved a man who owned a business called “Sam’s Stationery and Luncheonette” in Long Island.
Among the products sold at this business were “girlie” magazines, which contained photographs of women in various stages of nudity.
2 In October of 1965, the business owner sold two of these magazines to a 16-year old boy. The owner was subsequently charged with violating section 484-h of the New York Penal Law, a law that forbade the selling of such nude pictures to minors under the age of 17.
3 The owner was found guilty of breaking this statute by the Nassau County District Court. The Appellate Term,
Second Department of the Supreme Court, also found the seller of these magazines guilty. The case was then brought before the Supreme Court.
In affirming the decisions of the lower courts, Justice Brennan stated that
“material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children.” 4 Indeed, Justice Brennan affirmed the notion that just because certain sexual speech may be deemed appropriate for adults to look at, this does not mean that that same speech is also appropriate for minors to enjoy. Justice Brennan recognized the State’s interest “‘to protect the welfare of children’ and to see that they are ‘safeguarded from abuses’ which might prevent their
‘growth into free and independent well-developed men and citizens.’” 5 Justice Brennan
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2
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Ginsberg v. New York , 390 U.S. 629, 632 (1968).
3
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390 U.S. 629, 632-633 (1968).
4
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390 U.S. 629, 636 (1968).
5
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390 U.S. 629, 640-641 (1968).
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was concerned that the exposure of graphic sexual material to minors would have a harmful impact upon the growth of the minor into an intelligent American citizen.
Clearly, the Supreme Court has recognized a need to prevent the exposure of graphic sexual speech to minors. This paper concurs with this viewpoint and contends that the presence of such sexual speech in the school environment is harmful to the minds of high school students. There are many contemporary examples of graphic sexual speech that would harm the minds of growing students and hinder their development as
American citizens in training. Take the case of Pyle v. South Hadley School Committee .
In this case, a student by the name of Jeffery Pyle wore a series of t-shirts to South
Hadley High School in Massachusetts that drew the objections of school administrators.
On May 18, 1993, Mr. Pyle wore a shirt to school with the phrase “Coed Naked Band;
Do It To the Rhythm” written on it. Mr. Pyle was sent to his Principal, where he was told to remove the sexually toned shirt. A lawsuit was subsequently brought before the
District Court for the District of Massachusetts on behalf of Mr. Pyle.
6
In determining whether Mr. Pyle’s “Coed Naked” shirt was deserving of First
Amendment protection, Judge Michael A. Ponsor agreed with school administrators that
Mr. Pyle’s shirt “displayed an overt sexual tag line.” In an effort to further clarify his definition of overtly sexual speech, Judge Ponsor cited other examples of impermissible t-shirt phrases, such as “Coed Naked Law Enforcement: Up Against the Wall and Spread
‘Em, Coed Naked Firefighters: Find ‘Em Hot, Leave ‘Em Wet, and Coed Naked
Lacrosse: Ruff and Tuff and in the Buff.” Judge Ponsor insisted that these types of
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6 Pyle v. South Hadley School Committee , 861 F. Supp. 157, 163 (D. Mass. 1994).
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explicitly sexual messages take away a great deal from the educational setting, while serving no important purpose for students in return. As Judge Ponsor articulated, “It becomes banal and distracting constantly to be exhorted to ‘do it,’” and this type of distraction only takes away from the intellectual growth of students.
7
It must be said that overt and graphic sexual speech has no business receiving protection within the school environment, as it only distracts students and does nothing to prepare students for a graceful entry into American society. However, this restriction must not include all speech that is even remotely flirtatious. For instance, it cannot be said that school administrators would be justified in censoring a t-shirt containing the phrase, “Single and Ready to Mingle.” This sentence amounts to nothing more than a flirtatious invitation and is hardly of the graphic nature of the “Coed Naked” shirts.
Harmless phrases such as this are much less likely to cause a great deal of distraction among students or stimulate the imagining of intense sexual situations. Consequently, if administrators are to live up to the spirit of the First Amendment, they should allow simple, flirtatious statements that garner nothing more than a glance out of students.
Unlike overtly graphic speech, flirtatious expression fails to create a distracting, sexually charged environment, in which students are preoccupied with a subject that is of no societal value. Hence, flirtatious expression should be excluded from the expression deemed unworthy of First Amendment protection by this initial student speech prong.
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861 F. Supp. 157, 170 (D. Mass. 1994).
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Harassment or Speech that Targets an Individual Student
As has been stated, this new standard for student expression would under no circumstances protect age-inappropriate speech in the elementary school environment or graphic sexual speech in the high school environment. Yet another category of speech that is not even worthy of consideration under this new standard is speech that targets individual students. Indeed, this type of speech is akin to harassment, and it must be said that the purpose of ensuring the presence of the First Amendment within the public school is not so that certain pupils can attack specific individuals who they do not get along with. The presence of the First Amendment in the school environment is meant to ensure a robust exchange of viewpoints on important societal issues, rather than serve as a shield behind which bullies can hide.
Indeed, this type of harassing speech lacks any purpose within the school environment. It is akin to low value speech that merely seeks to attack other pupils rather than provoke meaningful discussion on controversial social and political issues. The
Supreme Court has recognized the lack of value inherent in this type of attacking speech.
Indeed, Justice Murphy, in the majority opinion for Chaplinsky v. New Hampshire , affirmed the notion that certain types of speech are of such low societal value that they are not to be protected under the Constitution. This Chaplinsky case concerned a male
Jehovah’s Witness who, on a public sidewalk in the city of Rochester, New Hampshire, called out to another man, “‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.’” 8 This Jehovah’s
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Chaplinsky v. New Hampshire , 315 U.S. 568, 569 (1942).
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witness, Mr. Chaplinsky, was convicted under the Public Laws of New Hampshire, which stated that “no person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place…” 9 Upon appeal from the
Supreme Court of New Hampshire, this case landed in the United States Supreme Court, where Justice Murphy delivered the majority opinion for the Court. In upholding the conviction of Mr. Chaplinsky, Justice Murphy held that the type of harassing speech uttered by Mr. Chaplinsky was not worthy of First Amendment protection. According to
Justice Murphy, “resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution…” 10
Clearly, the Supreme Court has placed very little value in speech that harasses particular individuals. This paper’s new standard for student expression draws upon this precedent in denying First Amendment protection to speech within the high school that harasses particular students. Indeed, this speech does nothing to add to the intellectual development of students. Rather, this type of speech can have harmful effects upon the minds of the youth. The psychological effect that bullying has on other students is devastating and has been well documented. Indeed, the mental distress caused by bullying often leads to frequent absences and an inability to concentrate on class work.
Bullies cause their victims to view themselves in a highly negative light, a viewpoint that can lead to extreme depression in many cases. One study carried out by Australian researchers found that students who were “bullied at least once a week experienced
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9 315 U.S. 568, 569 (1942).
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10 315 U.S. 568, 572 (1942).
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poorer health, more frequently contemplated suicide, and suffered from depression, social dysfunction, anxiety, and insomnia.” 11
Based on this research, there is a compelling reason to prevent instances of harassment against individual students. When a student is singled out in a negative manner in a closed environment, there can be no doubt that that student will be affected by the message. School administrators simply cannot allow students to attack their fellow peers and prevent certain students from receiving their full education. There will be some who question the universality of this condemnation by pointing out situations in which a particular student is singled out so as to make a larger point about a very important social issue. However, it must be argued that students who wish to voice their opinion on important social matters are able to do so without naming specific individuals.
By identifying particular students in their speech, pupils make it impossible for those illuminated individuals to simply recognize the speech as one of the many opinions in the
“marketplace of ideas.” Rather, to those individuals who were singled out, the speech becomes a verbal attack meant to psychologically damage them. The insertion of a particular name takes away all the focus from the social message and instead places the spotlight on the student. It can hardly be said that there is any purpose for drawing attention to particular students within the school environment.
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11 Rana Sampson, The Problem Of Bullying In Schools
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http://www.popcenter.org/problems/bullying/ (2002).
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True Threats
Yet another category of speech that shall never receive protection under the first prong of this new standard for student speech is that expression which is deemed to be a
“true threat” against any particular individual or group of individuals within the school population. The public school environment cannot become a prison of fear, where students are forced to combat legitimate threats against themselves or against a group of which they are a part. The mind of the public school student must be free to take in knowledge on various subjects and learn about what it means to be an intelligent
American citizen. How can students be expected to think about these things when they are faced with threats that cause them to fear for their personal safety? Threats to members of the student population only create an environment of terror in the public school and are of absolutely no value to students who are attempting to mature.
Federal courts have ruled on a wide array of cases concerning threats made against other human beings. In 1969, the Supreme Court considered the constitutionality of threatening language in Watts v. United States . This case concerned an 18-year-old male who, during a political protest rally outside the Washington Monument in 1966, expressed his discontent for the Vietnam war draft by stating, “‘If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”’ The young man was immediately arrested and charged with “knowingly and willfully threatening the
President.” After both the District Court and Court of Appeals for the District of
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Columbia upheld his conviction, the protestor’s case was brought before the Supreme
Court.
12
In a per curiam opinion, the Supreme Court ruled that the protestor’s threatening words concerning the President were protected by the First Amendment. In coming to this decision, the Court asserted that, “what is a threat must be distinguished from what is constitutionally protected speech.” 13 Indeed, the Court concluded that the threatening speech in this instance did not constitute a real threat against President Johnson, considering the speech was made “‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” 14
Clearly, the Supreme Court has ruled that in certain contexts, threatening language can be constitutionally protected speech. This paper seeks to make a similar distinction between protected and unprotected threats. Under the new standard for student expression, only “true threats” would be unworthy of First Amendment protection. A “true threat” would be defined as a threat that was likely to be carried out at a specific point in the near future. For example, if a student who was known to have a deep grudge against the cheerleading squad wore a t-shirt to school with the phrase, “I am going to shoot the cheerleaders at 3pm tomorrow afternoon,” school administrators would be justified in classifying this expression as a “true threat.” This type of threat, considering its likelihood and imminent time frame, would most likely cause extreme
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12 Watts v. United States , 394 U.S. 705, 706 (1969).
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13 394 U.S. 705, 707 (1969).
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14 394 U.S. 705, 708 (1969).
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fear amongst a particular group of students, thereby preventing them from getting anything out of the educational environment. This type of terror-inducing speech only takes away from the ability of students to learn and is thereby undeserving of any First
Amendment protection.
On the other hand, threatening speech that is unlikely to occur would not be censorable under this first prong of the new standard for student expression. Professor
George R. Wright refers to these types of threats as “doubtful threats.” According to
Wright, while “doubtful threats” do target specific individuals or groups, these threats
“lack imminence” and “usually have accompanying evidence in the record that gives reason to doubt the speaker’s intent to carry out the threat.” 15 In other words, in comparison to the probability of a “true threat,” the probability of a “doubtful threat” actually being carried out is much lower.
16
An example of a “doubtful threat” would be a hat that contained the phrase, “I am going to make sure that all gays go to hell.” This threat contains no specific timeline as to when homosexuals will enter the depths of hell, and the threat itself seems unlikely to be carried out by the particular individual wearing the hat. Such a “doubtful threat” would be unlikely to provoke a great deal of fear within the gay student population, considering the miniscule odds of the threat actually becoming a reality. Therefore, there would not be such a compelling interest to immediately censor this expression.
Certainly, students cannot be expected to go through their school day faced with true,
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15 George Wright, “Doubtful Threats and the Limits of Student Speech Rights,” UC
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Davis Law Review 42 (February 2009), 682.
16 Wright, 683.
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imminent threats against their well-being. However, in cases where the threat is not real, students must be able to tolerate such expression, despite the distasteful and hateful theme of the message.
Some will certainly argue that there is nothing wrong with banning both “true” and “doubtful” threats, since many students are able to find ways to express their opinion without the use of threatening language. The problem with this argument, however, is that sometimes people feel so strongly about a particular topic that only the use of such vile language can convey a strong enough message. For example, the condemnation of a particular group of people is sometimes the only way in which certain individuals can express their intense distaste for a particular belief system. Indeed, threatening language embodies true disgust for a certain mindset, and it is vital that students learn the importance of being able to express the full extent of their opinions in open society.
In summary, the newly proposed standard for student expression will contain an initial prong that eliminates those instances of expression that are so disruptive or inappropriate that they are not even deserving of consideration under the First
Amendment. These censorable instances of expression include that speech which is ageinappropriate, that speech which contains graphic sexual content or images, that speech which singles out particular pupils, and that speech which contains true threats. Should an instance of student speech not be included within one of these four categories, that speech would then be analyzed under the second prong within this new standard for expression. Under this second prong, it would first have to be determined whether the speech in question contributes in a significant way to the maturation of students as
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intelligent American citizens. Secondly, it would have to be determined whether the speech in question is “poisoning” to the learning environment.
The Second Prong: Does the Speech Poison the Learning Environment?
Educating the Student Citizen
According to the second prong of the new standard for student speech, expression within the public school must contribute to the maturation of high school students into competent American citizens, who are fully aware of their constitutional rights. There are many obvious examples of types of expression that would serve to enhance the citizenry training of students. Political speech, for example, is extremely relevant in preparing students for entry into greater American society. Justice Brennan, in his majority opinion for New York Times v. Sullivan , underscored the importance of the ability to speak freely on political matters in the realm of greater American society.
Referencing Stromberg v. California , Justice Brennan affirmed that, “‘the maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means…is a fundamental principle of our constitutional system.”’ 17
Indeed, American citizens have a duty to be active in the democratic process.
This is the only way to ensure the government is truly acting as the voice of the people.
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17 New York Times v. Sullivan , 376 U.S. 254, 269 (1964), citing Stromberg v. California ,
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283 U.S. 359, 369 (1931).
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In order for citizens to become involved in politics, they must be aware of the many political theories that are available for adoption. That way, citizens will be able to choose the political theory that makes the most sense to them and argue for the greater adoption of this theory within society. Considering the first opportunity to participate in the election cycle occurs almost immediately after students leave high school, it is imperative that high school students become aware of the wide variety of political opinions and hence become able to participate in the democratic system as soon as possible.
Another type of speech that must be considered crucial to the maturation of students into American citizens is speech that concerns highly controversial social topics.
Such topics include homosexuality, abortion, and stem cell research. It is the duty of
American citizens to define the moral fiber that encompasses the backbone of the United
States. Citizens must be able to decide for themselves what is moral and what is immoral. That way, a true majority viewpoint can arise and become the prevailing moral standard of the time.
However, in order for a true majority viewpoint to arise, citizens must first become aware of the differing thoughts on morality. In a nation as diverse as the United
States, there are vastly differing opinions as to what are acceptable moral guidelines by which to live. Indeed, as Justice Harlan noted in Cohen v. California , it is often the case that “one man’s vulgarity is another’s lyric.” 18 If citizens are made aware of these differing conceptions of morality, then society can come to a true consensus as to what should be the acceptable moral compass. Being aware of the differing opinions on morality also prompts citizens to truly think about why they subscribe to their particular
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18 Cohen v. California , 403 U.S. 15, 25 (1971).
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set of moral values as opposed to others. This type of critical thinking is a highly valuable trait for citizens to have, for it forces citizens to constantly challenge their own beliefs and ensure that they are living according to the highest standards possible. High school students, as American citizens in training, need to be aware of these differing viewpoints on controversial societal matters so that they are able to develop this selfcritical mindset.
It must be said that certain types of speech fall outside the realm of expression that aids in the maturation of the American citizen. An example of such speech is that which advocates the breaking of the law. Indeed, this new standard would not protect a tshirt that reads, “Snort cocaine, it feels really good.” In preparing students for citizenship, it is important to instill in them respect for the law. Indeed, the law serves as the backbone of society. Without the law, men and women would descend into utter chaos. An intelligent citizen is one who respects laws that are passed within the democratic system. Certainly, students should be able to advocate any legal means of changing an unsatisfactory law. Indeed, this new standard would have no issue with a student who wears a t-shirt to school bearing the phrase “Vote to legalize marijuana!”
However, the speech must be within the boundaries of the law.
A large part of preparing students for entry into greater American society centers on the need to create a society of tolerant citizens. The underlying goal of the First
Amendment is the creation of a society where all viewpoints are tolerated and citizens are eager to debate one another on the merits of their beliefs, rather than call for the censorship of what they believe to be “morally inferior” speech. Indeed, in such a society where all viewpoints are tolerated, citizens will be less consumed with anger and
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animosity towards differing factions and less willing to call for the complete elimination of viewpoints contrary to their own. One can certainly imagine that without such anger and self-entitlement, citizens will be more likely to engage in intelligent debates on issues and more likely to find common ground amongst their adversaries. Such a tolerant society may also have the effect of extinguishing those belief systems that are based on hatred towards others. Indeed, in his book The Tolerant Society , author Lee C. Bollinger argues that “the toleration of undesirable and unwanted behavior” will have the effect of pointing out the “troublesome tendencies within those wishing to be intolerant…” 19
Within a sea of tolerance, these groups of intolerant people will come to realize the faults within their ideology and come to adopt the same tolerant mindset as those around them.
High School students need to be taught to embrace such a tolerant mindset during their schooling years. Indeed, young men and women recently graduated from high school make up a large portion of the potential voting population. It is critical that young graduates enter into the democratic voting process as soon as possible so that the laws passed and government officials elected are truly representative of the will of all
Americans. In order for young graduates to be able to enter into the voting process however, they need to have already developed an intelligent set of beliefs. And in order to do this, they must have been exposed to a wide array of viewpoints and they must have debated with their peers as to the strengths and weaknesses of differing beliefs systems.
And in order to engage in such thoughtful debate, students need to be taught to have a tolerant mindset. This way, students can have intelligent conversations with those who
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19 Lee C. Bollinger, The Tolerant Society (Oxford: Oxford University Press, 1986), p.
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hold different viewpoints and can honestly come to their own conclusions as to what belief system they believe to be most correct and worth subscribing to.
Poisoning the Learning Environment
Should the speech in question be shown to contribute to the growth in citizenry amongst the student population, the expression will then have to pass a new form of the
“disruption” test, known as the “poisoning” test. Under this new test, speech that is
“poisoning” to the learning environment will not be allowed protection under the First
Amendment. Expression should be deemed “poisoning” only if the instructor feels he or she can no longer effectively teach the required material to the class due to the presence of the student speech. And yet, even then, a burden must be placed on administrators to try to turn the disturbance into a teachable moment before resorting to censorship.
Indeed, under the new standard, the censorship of student expression that serves to ready students for American citizenry must be a last resort rather than a first resort. Teachers have an awesome opportunity with these instances of expression to teach their students about the importance of the freedom of speech and dissemination of differing viewpoints and opinions. The classroom is the perfect environment in which to teach students that although they may not agree with or even respect the beliefs of their fellow classmates, the strength of American society lies in the ability of its citizens to recognize differing opinions and disagree with them without completely getting rid of them.
Such a teachable moment can be imagined when looking at the circumstances surrounding one of the aforementioned student speech cases, Governor Wentworth
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Regional School District v. Hendrickson . Once again, the expression at issue in this case was a patch depicting a “No Swastika” symbol.
20 School administrators refused to allow students to wear this patch in the school environment, fearing it would provoke violence within the student body. However, according to the new standard for student expression, what administrators should have done rather than immediately censor the expression was use the patch to make a point about the importance of the First Amendment. Indeed, considering this speech comments on a particular belief system using a monumental historical symbol, this expression would serve as the perfect opportunity for teachers to instruct their pupils on the importance of First Amendment protection. Indeed, administrators at this high school would have been well served to inform their students that this patch expressed the strongly held beliefs of a certain number of their peers and that the First Amendment protects the right of citizens to express their distaste for certain ideologies in a peaceful manner. Given this information, this paper can imagine students would have been more willing to tolerate the controversial patch.
Of course, should this civic lesson fail to refocus the students’ attention on the classroom lesson plan, the speech in question must be removed. For while the public school is a preparatory institution for American citizenry, it is also a place where students go to gain knowledge in the social and hard sciences, and this duty of school administrators must certainly not be forgotten.
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20 Governor Wentworth Regional School District v. Hendrickson , 421 F. Supp. 2d 410,
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414 (D. N.H. 2006).
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Possible Objections to the Poisoning Standard
There are a number of objections that may be raised in response to this new student speech standard. One such potential objection is the fact that the standard does not take into account student speech that fails to aid in the growth of students as citizens and yet is also utterly harmless and non-disruptive. For example, what about student speech relating to sports teams? Or what about t-shirt of a flirtatious nature, such as the shirt that read “Single and ready to mingle?” Surely, these types of speech do not contribute to the growth of students in their citizenry. And yet, do these harmless instances of expression really deserve to be banned within the learning environment?
While at face value it may appear that the aforementioned expression does not add to the maturation of American citizens, the First Amendment requires an intelligent citizenry. An important right of citizenship is the ability to express differing opinions on topics of social pleasure, such as recreational sports and dating. The intellectual citizen must have a way to occasionally escape the rigors of strenuous thought, and expression relating to sports or dating or other forms of entertainment is a healthy alternative to the expression of thought-provoking political or social concepts. Indeed, in a tolerant society, citizens accept expression relating to recreational topics as speech that adds color to the intellectual landscape.
Others may object to this new student speech standard by saying that the
“poisoning” test is no better suited to handle the complex realm of student expression than Tinker ’s “disruption” test. In response to this objection, it must be said that the issue of student speech is always going to be a somewhat blurry matter. Achieving the right
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balance between the duty of school administrators and student’s free speech rights is never going to be easy and straightforward. There are just too many conflicting concerns at play. However, what this new standard will attempt to do is clarify the issue a little bit more and shift the deference pendulum back towards the students. The “poisoning” standard is designed to accomplish these exact goals.
The language of Tinker ’s “disruption” test provides no guidance as to when censorship should occur. Absent any clarification from the Supreme Court, the trend over the last four decades has been to defer to the wisdom of school officials, who appear more willing to censor expression due to highly trivial or even non-existent instances of disruption. Indeed, as Sean Nuttall points out, the years since Tinker have seen lower courts consistently interpret the landmark student speech case as “requiring deference to schools’ reasonable predictions of disruption.” 21 Many have condemned this trend of judicial deference, including Justice Stevens in his dissent for Morse v. Frederick .
Commenting upon Chief Justice Robert’s willingness to defer to the reasonable interpretations of school officials, Justice Stevens argued that, “to the extent the Court defers to the principal’s ostensibly reasonable judgment, it (the Court) abdicates its constitutional responsibility.” 22
The new standard for student expression takes the position of Justice Stevens in
Morse and seeks to halt this trend by once again placing the burden of deciding the constitutionality of student speech in the hands of the Court. The “poisoning” test
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21 Sean R. Nuttall, “The Hart-Fuller Debate at Fifty: Rethinking the Narrative on Judicial
Deference in Student Speech Cases,” New York University Law Review 83 (October
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2008), 1308.
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provides a clear blueprint for the Court as to what administrators are required to do in the face of controversial student expression. Under the “poisoning” test, all expression that contributes to the development of the student citizen in training should be allowed within the classroom until the instructor no longer believes he or she can adequately continue with his or her lesson plan. This will eliminate instances in which administrators are able to censor expression merely because a few students are found to be temporarily analyzing the speech. Minor distractions in the classroom are inevitable and, in the interest of preserving the reality of a vital Constitutional Amendment, are certainly things that can be tolerated.
Should any student speech cause the instructor to have to halt the lesson plan in the face of complete classroom chaos however, administrators would have a right under the “poisoning” test to address the expression. However, unlike the “disruption” test, which allows administrators to censor student speech immediately upon or even prior to the disruption of classroom activities, the “poisoning” test requires administrators to wait for a substantial disturbance and then take a moment to turn the situation into a lesson on the civil liberties of American citizens. Administrators will be prompted to explain to their students the value of living under the First Amendment. Pupils will learn from their teachers that although they may whole-heartedly disagree with their peers on certain issues, American citizens are allowed to hold their own opinions. Especially in classrooms where students truly respect their instructors, these words are likely to have a great impact on pupils and their outlook towards the conflicting opinions of their peers.
Indeed, these mini-lessons on civil liberties will teach students to appreciate those whose opinions differ from their own and will most likely encourage other students to think
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critically about their own beliefs and express them to their peers. This critical thinking and willingness to express beliefs should be encouraged in the school environment, as it prompts students to utilize higher cognitive skills that are important in greater adult society. Indeed, as Richard Roe points out, “free student expression facilitates…the development of cognitive structures and promotes conceptual development both in the highly person sense of formulating one’s own thoughts and in the more public sense of articulating ideas and viewpoints.” 23
In situations where small discussions on the importance of civil liberties do not have an impact and chaos in the classroom continues however, the “poisoning” test will allow for the censorship of student expression. This test certainly does not forget that one very important goal of the public school is to instruct the youth in the social and hard sciences. When instruction is made utterly impossible by student expression, the disruptive speech must be removed. The vital characteristic of the “poisoning” test however is that this necessary censorship follows sincere attempts by administrators to leave a place for the speech in the learning environment. While the “disruption” test allows for deference to administrators, the “poisoning” test shifts the responsibility for upholding student rights into the hands of the judicial branch. Indeed, should this new standard be adopted, judges will be given the responsibility of ensuring that school administrators attempt to accommodate student expression before censoring it.
Given this description of the “poisoning” test, an objection could also be raised that this new test will lead to a complete breakdown of discipline and order within the
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23 Richard L. Roe, “Valuing Student Speech: The Work of the Schools as Conceptual
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Development,” California Law Review 79 (October 1991), 1316.
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public school system. By having to wait until he or she can no longer get through their lesson plan, teachers effectively hand over control of the classroom to the students and allow them to decide what they want to focus their attention on. According to this viewpoint, this standard will allow students to say whatever they want and will force administrators to cater to the students. Indeed, just as was the case with Justice Black, who when Tinker was decided insisted that students would suddenly be “ready, able and willing to defy their teachers on practically all orders,” there are likely to be many who fear a student takeover of the school system with the application of this new standard.
24
However, just as Justice Black was proven wrong when he predicted that Tinker would lead to the demise of school discipline, these modern objections will be proven misguided. Indeed, under this new standard, students will not be able to say whatever they want to. The initial prong explicitly spells out certain instances in which administrators will be able to immediately censor student expression. Furthermore, it is highly unlikely that with the application of this new standard, there will be an incredible influx of controversial student expression that makes it through the initial prong and causes students to quarrel in the classroom. Most high school students today are so caught up in the Abercrombie and Fitch clothing culture and in their own academics and extra-circular activities that they don’t have the time or the desire to procure items expressing controversial societal messages. And with regard to the minority of students who do wish to express themselves in the classroom, it is unlikely that these pupils will express a message so abrasive as to prevent instructors from being able to teach.
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24 Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 525
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(1969) (Black dissent).
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Indeed, today’s American high school students are bombarded every day with opinions of all shapes and sizes from the television news to the Internet to the radio. Due to this massive exposure, there are very few beliefs that would shock the conscience of the modern American teenager. Consequently, it must be argued that students today are more likely to tolerate messages of all kinds in the school environment. And even if certain instances of expression do cause attention to be completely diverted away from the lesson plan, it is the opinion of this paper that this is a risk administrators must take in the name of upholding the reality of the First Amendment. The importance of teaching students that they do have a right to express themselves as an American citizen is too great to allow censorship in light of a small disturbance or even in the anticipation of a disturbance.
Another objection that may arise in light of this new standard is that discussions on the importance of the First Amendment are not appropriate in certain classrooms. For example, some may contend that a math teacher should not have to address his or her students on the importance of civil liberties prior to censoring a severely distracting expressive item. The math teacher’s duty is to teach math, and nothing else. All class time should be devoted to the subject of math, with no exceptions.
While at face value this argument may make sense, it fails to hold weight in light of what a modern public high school is meant to accomplish. While it is the duty of each administrator to instruct their students in their particular field of interest, it is also the duty of the entire adult population within the school to educate the youth on the reality of being a United States citizen. Some may continue to argue that this is a duty better suited for a civil liberties teacher within the high school. However, this paper contends that if
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administrators restrict the teaching of these rights to a classroom curriculum, then the lesson becomes less real for students. Students can only come to grasp the reality of their
First Amendment protection if they encounter it in a variety of settings. Is it not too much to ask teachers to take a few minutes out of their lesson plan to address matters that are vital to the survival of the Constitution?
One final major objection that could be raised in opposition to this new standard for student speech is that these guidelines allow for expression that repels the conscience of other students and prevents these pupils from being able to fully concentrate on their studies. Particularly in the case of anti-homosexual speech, this standard would allow for expression that condemns a portion of the student body and makes them feel as if they are doing something wrong. This is precisely the objection raised by the Second Circuit in
Harper . Indeed, the court chose to uphold the censoring of Tyler Chase Harper’s under
Tinker ’s “rights of others” exception, arguing that students have a right to be free from
“psychological attacks that cause young people to question their self-worth and their rightful place in society.” 25 According to this line of thinking, school administrators have an obligation to censor any speech that hatefully targets a sect of the student population, so as to ensure that the targeted students retain their sense of self-worth and are able to concentrate on their schoolwork.
While expression such as anti-homosexual speech does condemn a particular group of students, it is nevertheless a commentary on acceptable moral standards for society and needs to be protected speech within a democratic society. Although many citizens find speech that condemns homosexuality to be extremely hurtful and distasteful,
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25 Harper v. Poway Unified School District , 445 F.3d 1166, 1178 (9 th Cir. 2006).
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others believe it to be expression that reflects the ideal moral fiber of society. As contentious as these positions may be, these conflicting viewpoints need to be present within society so that citizens continue to think critically about the majority’s stance on societal issues. If the government begins censoring certain viewpoints that it believes to be immoral and hurtful, this will lead to a great silencing effect in which far less abrasive beliefs will be censored. Allowing the existing power structure to censor certain types of that it finds to be distasteful means that citizens hand over the power to determine society’s morals to whichever democratically elected party is in charge. This would be a great blow indeed to the concept of intellectual autonomy. When it comes to controversial societal issues, where there are legitimate arguments on both sides of the debate, citizens should be able to determine for themselves what they believe, rather than have the government decide for them.
Considering the public school is meant to prepare students for entry into greater society, it only makes sense to expose pupils to the different viewpoints on morality they will face in the adult world. Students need to be taught to embrace the role of the intellectual American citizen, who has his or her own opinions on matters but respects the right of others to argue opposing viewpoints. Indeed, students need to be exposed to opposing viewpoints so that they can learn to respond to and debate their peers rather than turn angry and attempt to silence opposing speech. Students today need to be taught how to argue against or dismiss a viewpoint rather than call for its removal. This applies to those students who feel as if they are emotionally harmed by speech aimed against a particular group they belong to. Rather than risk a damaging snowball effect by banning that speech which administrators view to be emotionally harmful, what administrators
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should do is promote the expression of both sides of the issue, encourage debate amongst students, and reinforce the idea that the emotionally harmful speech is only an opinion. If students are taught to think in this manner in high school, citizens in greater society will eventually come to engage in more thoughtful debates with one another. As society stands today, reasoned and thoughtful debate cannot take place due to the fact that minority viewpoints feel as if they are being unfairly censored. This censorship leads to a build up of anger that has nothing to do with issue itself, thereby resulting in highly emotional debates that do nothing to bring opposing sides to common ground.
Application of the Poisoning Standard
Should the Supreme Court adopt this new standard for student expression, a greater portion of student speech that does aid in the development of students as
American citizens will be allowed a place within the school environment. In order to support this assertion, a number of aforementioned and new cases will now be considered using the criteria under the new standard. The first case to be reconsidered will be
Broussard v. School Board of the City of Norfolk , since the expression in this case falls well within the realm of protected speech under the new standard. The next case to be reconsidered will be Zamecnik v. Indian Prairie School District , seeing as the expression in question in this case is potentially more “poisonous” to the learning environment.
Following this analysis, a new case involving political student speech, Barber v.
Dearborn Public Schools , will be considered under the newly proposed standard.
Finally, Harper v. Poway Unified School District will be re-examined under the new
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standard for student expression, seeing as this speech contains the most controversial language and thereby has the highest potential of being considered “poisonous” to the school environment.
The first case that shall be reconsidered under the new student speech standard is
Broussard v. School Board of the City of Norfolk . Once again, in this case, a student wore a shirt to school bearing the phrase “Drugs Suck!” 26 District Court Judge Doumar upheld the censoring of this shirt based on the belief that administrators reasonably anticipated substantial disruption.
27 In order to determine whether this item of clothing could be censored under the new standard for expression, it must be determined whether the shirt fits into any of the censorable categories within the standard’s first prong.
In terms of the first section within the initial prong, it is clear that a phrase condemning the use of drugs does not have anything to do with particular students. The phrase may be directed at those individuals who take drugs, but this mere fact fails to justify the censoring of the speech. Indeed, the phrase fails to mention any specific names, and therefore would not be able to be censored under this first portion of the new standard.
It must next be determined whether this shirt contains any sexual language or expletives. School administrators contended that the word “suck” on the shirt evoked sexual images and therefore was not appropriate within the classroom. However, this paper must contend that the word “suck” by itself cannot be classified as a sexual
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26 Broussard v. School Board of the City of Norfolk , 801 F. Supp. 1526, 1528 (E.D. Va.
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1992).
27 801 F. Supp. 1535 (E.D. Va. 1992).
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reference. Although the word can have a sexual meaning, more often the word simply means that something is bad. Indeed, students use the word “suck” quite frequently in a non-sexual manner. In this case, the student was clearly using the term “suck” to condemn the use of drugs. To ban the word “suck” simply because it can potentially have a sexual meaning would lead to a dangerous snowball effect. Students today can attach sexual meaning to a plethora of seemingly normal words and phrases. A word should not be banned because it has the potential to evoke particular thoughts. Going by this logic, administrators would be allowed to censor all words, since any word can theoretically be made to have sexual meaning. Under the new standard for student expression, only those words with blatant sexual meaning will be censorable. Otherwise, harmless instances of student expression that are meant to convey non-sexual messages will be silenced.
Considering the “Drugs suck” shirt does not contain any words with blatant sexual meaning, it must next be determined whether the expression contains any “true threats” against a particular group of people. Given the words on the shirt, it must be argued that the speech does not contain any such threat. The shirt does not threaten to do anything to those who take drugs. Rather, the phrase simply expresses a negative belief about particular substances. Therefore, this message would indeed receive protection under this portion of the initial prong.
Finally, it must be determined whether the shirt is age-appropriate for the environment in which it is presented. This determination is made somewhat difficult by the fact that this item of clothing was unveiled in a middle school environment.
Nevertheless, this paper must argue that a message condemning the use of drugs is not
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inappropriate for the halls of a middle school. In today’s age, children learn about drugs sometimes as early as elementary school. Certainly, by the time students reach middle school, they have at least learned about the basic gateway drugs. This assertion is supported by the fact that there are drug problems in many middle schools across
America. Indeed, to say that a message condemning drug use is inappropriate for the middle school environment is to ignore the reality of what middle school students are knowledgeable about.
Since this shirt passes all portions of the first prong of the new standard, it must now be determined whether the shirt can be censored under the second prong. In terms of whether the speech is important to the growth of the student into an intelligent
American citizen, this paper must contend that an anti-drug message does indeed aid in this development. Drug usage is a controversial social issue that needs to be discussed within society. Many people maintain that all drugs are detrimental and should be banned. Others maintain that certain drugs are harmless and that society needs to be more accepting of these substances. In order to ensure the development of a tolerant society, in which all viewpoints are tolerated and intelligent debate is able to take place, all opinions concerning both the consequences and benefits of drug usage need to be heard and protected by the First Amendment. Students need to be aware of these differing viewpoints, so that when they emerge as adult American citizens, they are able to refrain from emotional cries of censorship and are instead willing to debate their peers on the facts of drug usage.
It must also be determined whether this shirt is “poisoning” to the learning environment. The majority opinion makes no mention of any actual disturbances that
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occurred as a result of this shirt. Indeed, no administrator found it impossible to teach in the presence of this item of clothing. The court based its decision to censor the shirt on the belief that many students find the term “suck” to be offensive. Consequently, the court concluded the administrators could reasonably forecast disruption to occur.
According to the “poisoning” test however, the lack of any actual disruption in the classroom renders this speech protected under the First Amendment. The mere fact that students could be overcome with sexual thoughts at the sight of this word is not enough to justify the censoring of this expression. Middle school students, who are just being introduced to sexuality, are likely to be overcome with sexual thoughts at the sight of many things in the school environment. Administrators cannot be allowed to censor all things that could potentially evoke sexual thoughts. After all, under such a standard, females could be removed from the school, considering they sometimes cause young men to become overwhelmed with sexual feelings. In the absence of actual disruption that prevents a teacher from continuing their lesson, there can be no censorship of speech on important social issues. Considering the “Drugs suck” t-shirt did not cause there to be any actual disturbances in the classroom, the shirt passes the “poisoning” test, thereby rendering the expression protected under the First Amendment.
Seeing as the “Drugs suck” shirt survives all prongs of the new standard, it must be said that the First Amendment would protect this expression should the Court adopt this new approach to student speech rights. In an attempt to consider a slightly more difficult instance of student expression, the case of Zamecnik v. Indian Prairie School
District will now be analyzed under the new standard for student speech. Once again, the
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expression at the heart of this case was a t-shirt containing the phrase, “Be Happy, Not
Gay.” 28
In applying the new standard to the facts of Zamecnik , one must first determine whether the expression in question can be censored by one of the four categories within the standard’s first prong. Under the first prong of the new standard for student speech, it must first be determined whether this t-shirt singles out any one student in particular.
While the shirt is certainly recommending that students not consider themselves a part of a particular group of students, it cannot be said that the expression singles out any one homosexual student in particular. Therefore, the expression passes this first portion of the standard. Secondly, it must be determined whether the shirt contains any obscene language or expletives. While the word “gay” undoubtedly refers to a particular sexual orientation, it cannot be said that this word by itself is sexually explicit. Consequently, the expression passes this second portion of the new standard. It must also be determined whether the speech contains any “true threats” against a specific group of people. While the shirt is certainly telling people to avoid adopting the sexual mindset of a particular group of people, the shirt in no way threatens homosexual students. Therefore, the speech satisfies this third section of the standard. Finally, it must be determined whether the shirt in question is age-inappropriate within the setting it is displayed in. Considering this t-shirt was displayed in Neuqua Valley High School, it can hardly be said that commenting upon the homosexual orientation was age-inappropriate. Virtually all students by the time they reach high school are aware of the homosexual orientation, and
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if they are not by this point, they should be, in light of the well-known presence of this population sect.
Having passed through the first prong of the new standard for student speech, the expression in Zamecnik must now be analyzed under the second prong in order to determine if the speech is worthy of First Amendment protection. First, it must be determined whether the shirt contributes in a significant way to the maturation of students into intelligent American citizens. While the message is certainly distasteful to many, this paper would argue that the presence of the message is crucial to the development of the student-citizen. Students, in preparation for entry into the “marketplace of ideas” within larger society, must learn to deal with unpopular viewpoints when it comes to controversial social matters. Reasoned arguments against unpopular speech, rather than total elimination, are what students need to strive for. This way, citizens are trained to continue to think critically about why an idea is the majority viewpoint.
Finally, it must be determined whether the expression in Zamecnik passes the new
“poisoning” test. Again, this new test requires that administrators use censorship as a last resort against disturbing instances of student speech. Based on the facts of this case, it seems highly likely that Ms. Zamecnik’s t-shirt would survive the “poisoning” test. In detailing the disturbances caused by the wearing of the shirt, the district court judge only mentions that, “unidentified students complained to school staff about the shirt,” and that
“some students were offended by the shirt.” 29 There is no mention of teachers having to stop teaching for a moment to address the speech. And even if the shirt had caused enough of a disturbance to prevent administrators from continuing their lesson plans, the
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29 2007 U.S. Dist. LEXIS 28172, 15 (N.D. Ill. 2007).
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teachers still would have been required to address the students on the importance of the
First Amendment prior to censoring any expression. The record fails to mention any such instances in which administrators addressed their students on the issue of civil liberties. Given the lack of any substantial disturbance in the classroom, in addition to the fact that administrators failed to turn the shirt into a teachable moment for students, it must be said that Ms. Zamecnik’s expression would pass this final prong of the new prong for student speech.
Considering the expression in question in Zamecnik survives all prongs within the new student speech standard, it must be said that the First Amendment would indeed protect this expression should the Court adopt the new approach. In an effort to examine a diverse subset of student expression however, this paper will now analyze a third case,
Barber v. Dearborn Public Schools , under the poisoning standard.
30 This case involved a junior at Dearborn High School, Bretton Barber, who, in February 2003, wore a shirt to school containing a picture of President George W. Bush and the words “International
Terrorist.” 31
In analyzing this politically charged item of clothing under the new standard for student speech, it must first be determined whether the shirt is even worthy of consideration under the First Amendment. To answer this, the expression must be considered under the initial prong of the new standard. The first question is whether the
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30 Barber v. Dearborn Public Schools , 286 F. Supp. 2d 847 (E.D. Mich. 2003). The facts of this case are based on Justin T. Peterson, “School Authority v. Students’ First
Amendment Rights: Is Subjectivity Strangling the Free Mind At Its Source?” Michigan
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State Law Review 2005 (Fall 2005) 931.
31 286 F. Supp. 2d 847, 849 (E.D. Mich. 2003).
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shirt is age-appropriate for the environment in which it is displayed. Considering that
Barber’s shirt was displayed in the high school setting, it must be held that this shirt is age-appropriate. This shirt is clearly a commentary on the policies of a political leader, and this type of political expression is most worthy within the high school environment.
Indeed, in order for students to make well-informed political choices at the ballot upon entrance into greater American society, they must first be exposed to a wide spectrum of political opinions and convictions. There is no better place to receive this exposure than in the high school setting, which serves as the intellectual home for students immediately prior to their entrance into the voting populace.
It must next be determined whether Barber’s shirt contains any graphic sexual content or images. While Barber’s message is clearly controversial, it in no way can be construed as a graphic sexual message. Indeed, it must be said that a reasonable person could not possibly come to the conclusion that a picture of President Bush amounts to a sexual image, or that the phrase “International Terrorist” is graphic sexual speech.
Hence, Barber’s shirt would certainly pass this second portion of the first prong of the new standard for student expression.
It must also be considered whether Barber’s shirt amounts to the harassment or targeting of any particular students. While Barber is certainly singling out George Bush and his political agenda, the shirt in no way comments upon any individual students within the Dearborn High School environment. Although some students may revere
President Bush and consider Barber’s shirt to be a type of personal attack, the shirt nevertheless fails to call out any particular students who share the beliefs of President
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Bush. Hence, the shirt cannot be deemed harassing speech that targets particular individuals.
Finally under this first prong, it must be considered whether Barber’s t-shirt contains any true threats. Given the words depicted on the shirt, it can hardly be said that
Barber’s expression can be censored on these grounds. Indeed, the words “International
Terrorist” serve merely as a label for a political figure. This phrase certainly does not threaten the President. Rather, it simply classifies President Bush as a highly evil figure.
In addition, the phrase in no way threatens any particular students, as the language only refers to the President. Hence, this shirt cannot be deemed speech that contains any true threats against any individuals.
Considering Barber’s shirt passes all portions of the first prong of the new student speech standard, the expression must next be analyzed under the second prong of the poisoning test. In terms of whether this speech can serve as an integral part of the education of the student citizen, it must be said that Barber’s shirt does indeed serve this role. Exposing students to a diverse array of political commentary is crucial to the development of well-informed and tolerant American citizens. In wearing this shirt,
Barber clearly wished to proclaim his disapproval of the policy objections of the Bush
Administration. This type of political speech is crucial to the maturation of the studentcitizen. Indeed, students need to be exposed to diverse political thoughts such as these so that they can truly consider all political commentary and decide for themselves what line of thought is best. The presence of diverse political opinions also serves to teach students that the toleration of differing opinions should be encouraged. Indeed, this development of a tolerant mindset is critical, for it will encourage students to engage in truly
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thoughtful debates with one another and think more critically about why it is that they subscribe to their own political belief system.
Since Barber’s political expression does serve an important role in educating the student citizen, it must finally be determined whether the shirt poisons the learning environment. Based on the opinion of the court in Barber , this paper must contend that the “International Terrorist” shirt was not poisoning to the learning environment. Indeed,
Judge Patrick Duggan, in reviewing the facts of Barber , illuminates only two people who verbalized their issues with the politically charged shirt. The first person was a student in the lunchroom, who told Assistant Principal Michael Shelton that Barber’s shirt made him “angry.” 32 The second individual who complained to Shelton was a teacher by the name of William George, who told Shelton that Barber’s shirt “may be inappropriate.” 33
Other than these two conversations, the District Court for the Eastern District of
Michigan makes no note of any commotion caused by Barber’s item of clothing. It can hardly be said that two individuals complaining about an expressive shirt constitutes a
“poisoning” of the learning environment. There are always going to be individuals who don’t approve of the clothing of other students. This does not mean that learning cannot continue in the classroom. Indeed, these complaints made by a student and a teacher in the school cafeteria had no bearing on the ability of teachers to impart knowledge on their pupils. Additionally, this paper must also contend that such a political message would be unlikely to provoke a great deal of commotion even within the actual classroom. Indeed, while many students are interested in politics, it is highly unlikely that a classroom would
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32 286 F. Supp. 2d 847, 849 (E.D. Mich. 2003).
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33 286 F. Supp. 2d 847, 850 (E.D. Mich. 2003).
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be full of such fervent political activists who would create a serious disturbance at the sight of such a politically charged shirt. And even if Barber’s shirt was in the midst of angry student political activists, the teacher would be required under the new standard to turn the disturbance into a lesson on the importance of civil liberties in the public school environment. Absent this attempt to teach tolerance, the shirt would have to be deemed acceptable within the school environment.
Considering Barber’s shirt passes all portions of both prongs of the new standard for student expression, it must be said that Barber’s expression would indeed be worthy of First Amendment protection. Having now considered three student speech cases under the new standard, is is appropriate to turn back to case that prompted the development of the standard; Harper v. Poway Unified School District . Once again, this case concerns a student, Tyler Chase Harper, who wore to school a shirt bearing the phrase
“Homosexuality is Shameful ‘Romans 1:27.’” 34 The Ninth Circuit Court of Appeals upheld the censoring of this shirt based on the assertion that the speech violated the rights of other students to be left alone, the second exception within the Tinker standard.
However, this analysis will now consider Harper’s expressive shirt under the new standard for student speech.
The first thing that must be determined is whether Harper’s shirt singles out any particular students. While the message certainly targets a particular mindset, it cannot be said that Harper’s phrases name any particular students. It seems highly probable that
Harper wanted the homosexual students within Poway High School to take notice of his
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34 445 F.3d 1166, 1171 (9 th Cir. 2006).
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shirt. However, he fails to refer to any particular homosexual student, thereby rendering his speech protected under this first portion of the initial prong.
The second thing to consider is whether Harper’s shirt contains any obscene language or expletives. While Harper’s message does concern a particular sexual orientation, it does not include any obscene language or expletives. It is simply a condemnation of a sexual mindset. Upon reading such a message, students are not overwhelmed with unwanted sexual images. The shirt merely displays the disapproval of a sexual orientation, without going into any details of sexual practices. Consequently, this shirt would pass this second portion of the initial prong.
Yet another thing that must be considered under this first prong is whether
Harper’s shirt contains any “true threats” against a particular group of people. In displaying this message, Harper was certainly condemning the practices of some students within Poway High School. However, it cannot be said that a phrase asserting the shamefulness of homosexuality is a “true threat” against the homosexual students of
Poway High School. While the shirt clearly states that Harper does not accept the practice of homosexuality and that the practice is a sin, the expression does not go so far as to threaten those gay students within the school. Consequently, Harper’s shirt passes this third portion of the initial prong.
In order to clear Harper’s speech under the first prong of the new standard, it must finally be determined whether the shirt is age-inappropriate for the environment in which it was displayed. Considering Harper wore this t-shirt within Poway High School, it must be said that the shirt was indeed age-appropriate. By the time students reach high school, they are well aware of alternative sexual orientations. Even if the issue is not openly
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discussed, it cannot be said that high school students are unaware of this mindset or the controversy surrounding it. Whether from peers or parents, students have heard about the homosexual orientation by the time they enter their high school years. Consequently, it must be said that Harper’s t-shirt passes both this portion, and the entirety of the first prong of the new standard.
Since it has been determined that Harper’s expression survives the initial prong of the new student speech standard, the speech must now be considered under the second prong. In terms of whether the speech is crucial to the growth of students into American citizens, it must be said that Harper’s message does indeed serve this purpose. The topic of homosexuality is a highly controversial social issue and a cause for heated debate in the greater “marketplace of ideas.” There are a wide range of opinions on every matter relating to homosexuality, such as whether gay marriage should be legalized and whether the orientation is choice. These are opinions that are being discussed in Congress, on television, and in the homes of American families. Indeed, students will be subjected to all of these opinions as soon as they enter into adult society. It is crucial that students be exposed to these ideas in the school environment, so that they know how to receive them as intelligent American citizens in their post-high school lives. Administrators have a duty to teach their students to tolerate messages that go against their own personal beliefs. For while certain ideas may not be tasteful or respectful, they encourage the free flow of thought by their mere presence.
Finally, it must be determined whether Harper’s shirt is “poisonous” to the learning environment. The majority opinion for the Ninth Circuit points out that Harper’s second period teacher, Mr. LeMaster, “observed ‘several students off-task talking about’
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the shirt.” 35 The court also refers to the testimony of Harper’s principal, Mr. Fischer, who claimed that Harper had been involved in a “‘tense verbal conversation with a group of students’” as a result of the message on his shirt. Other than these two instances, the court mentions no disturbances that occurred as a result of Harper’s message. In analyzing these two instances, it must be said that Harper’s shirt did not result in a
“poisoning” of the learning environment. Although several students were talking about the shirt in Mr. LeMaster’s class, this level of disruption can hardly be classified as
“poisonous.” Students are found to be off-task constantly throughout the school day due to countless numbers of distractions. Administrators cannot attempt to suppress each one of these distractions, or else that would take up all of their time. The job of administrator is to teach their students to the best of their ability, and if an expressive item about an important social issue serves as a minor distraction within the classroom, but still allows the administrator to continue teaching, it should be protected. Within the classroom,
Harper’s shirt served as nothing more than one of the many minor distractions that plague the mind of the high school student. Consequently, Harper’s shirt passes this final portion, as well as the second prong of the new student speech standard.
Conclusion
In passing Tinker four decades ago, the Supreme Court affirmed the presence of the First Amendment within the school environment. Indeed, this ruling was meant to protect the ability of students to express themselves according to their constitutional
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35 445 F.3d 1166, 1171 (9 th Cir. 2006).
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right. However, in the years since Tinker , federal courts have too often used the flawed exceptions within Tinker to justify the censoring of student speech. What this thesis has sought to do is create a new standard for student expression that re-ignites the spirit of
Tinker , which was to uphold the reality of the First Amendment in the educational setting. While not a perfect solution to the Tinker problem, this new test does allow students a greater amount of constitutional protection and calls for the courts to remain diligent in upholding these constitutional rights.
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