Tinker – foundational principles re regulation of student speech

1. Tinker – foundational principles re regulation of student speech • Schools can regulate individual student speech if it “substantially and materially interferes with the requirements of appropriate discipline in the operation of the school.” • Majority: Wearing black armbands to protest Vietnam War does not “substantially and materially disrupt” school environment. “Undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom of expression.” • What does SCT fear if it allows punishment in these circumstances? • How do you think it views “disturb/disrupt” requirement? • Black dissent: “Even a casual reading of the record shows that this armband … took the students minds off their classwork and diverted them to thoughts” of highly emotional topic of Vietnam • What is his view of the school’s ability to punish speech that disturbs or disrupts?

2. Bethel School District v. Fraser • Student gave a speech full of double entendres at a school assembly. The speech was not “obscene or profane” within the meaning of the school policy which prohibited such language. Student was suspended for violating the portion of the policy prohibiting expression “materially and substantially causing a disruption.” SCT upheld the suspension. • How was this student’s speech disruptive? • Was it disruptive in the same sense that Tinker seemed to require – i.e., noisy disturbance of the assembly? • Did the student do anything wrong? If so, what important differences are there distinguishing the case from Tinker?

3. Bethel & the meaning of disruption • Bethel seems to hold that student expression interferes with the requirements of appropriate discipline (i.e., is disruptive) if it interferes with the school’s ability to inculcate values regarding civility and socially acceptable behavior (i.e., no public lewdness) • What role should school’s have in inculcating values? • Do we want them to have enough authority to impose their own message of right and wrong? • On the other hand – do we want free-for-alls in school assemblies? • What if Fraser’s message had been sexually graphic or explicitly racist/sexist – should schools not have the right to discipline?

4. Hazelwood School District v. Kuhlmeier • Principal censored high school newspaper produced as part of a journalism class by removing 2 articles concerning 3 students’ experience with teen pregnancy and impact of divorce on students. • Principal deleted articles because such material was inapproprite for younger students and might identify the students • Distinguishing Tinker/Hazelwood: • The question [in Tinker] whether the 1st Amdt requires a school to tolerate particular student speech is different from the question whether the 1A requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises. The latter question concerns educators’ authority over . . . activities [that] may fairly be characterized as part of the school curriculum. • Why should a school be able to exercise greater control in school-sponsored activities?

5. Hazelwood’s Test • Educators do not offend 1A by exercising editorial control over student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. • Important Questions • What is school sponsored expressive activity? • Newspapers, theatrical events, and expressive activities that others could reasonably perceive to bear the imprimatur of the school • What are legitimate pedagogical concerns? • Educational lessons of class (grammar, writing, etc.) • What is appropriate for maturity level (including emotional maturity)? • School can ban advocacy of drug/alcohol use or irresponsible sex or conduct “otherwise inconsistent with the shared values of civilized order” • School can ban students from “associating the school” with anything other than a position of neutrality on a political controversy • Are there circumstances in which the school disassociate itself from the speech so that it can say the speech does not bear its imprimatur?

6. After Hazelwood what result in the following? • School officials require school newspaper to carry editorials with presenting both pro/anti viewpoints on the Iraq War, reasoning that students should be presented with a full debate on the issues. • Is this an attempt to suppress viewpoint or just include another? • School officials censor an editorial in school newspaper calling the principal a “fat-headed idiot who knows nothing about how to run an educational institution.” Editorial printed in response to particular administrative decisions by the principal. • Viewpoint discrimination or legit pedagogical concerns? • Concerns about disruption at school as per Tinker?

7. Tinker/Fraser/Hazelwood Trilogy • Tinker – school can regulate individual student speech if it “substantially and materially interferes with (disrupts) the requirements of appropriate discipline in the operation of the school.” • Fraser– school can regulate lewd/suggestive speech at a school assembly because such offensive speech interferes with (disrupts) the school’s educational mission of inculcating certain values • Hazelwood– school can regulate style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

8. Hypotheticals • Student barred from distributing abortion-related literature and pregnancy statistics at Middle School because violates (1) a policy of prohibiting all handouts containing “political religious or organizational symbols” and (2) a policy prohibiting the distribution of all written literature at school. • Are the policies constitutional? • Anywhere Middle School recently banned the wearing of “I ♥ Boobies” bracelets claiming they are vulgar, disruptive or both. • Does the ban comport with the First Amendment?

9. Morse v. Frederick – the facts • Olympic relay ran through Juneau Alaska on a route by the high school. The high school released students while the relay was going by in order for them to attend it. • Frederick stood on the parade route on the street across from the high school and unfurled a banner that said “BONG HiTS 4 JESUS.” The banner was designed to get media attention. • The school principal (“Morse”) saw and took the banner from Frederick, interpreting it as encouraging illegal drug use. Morse suspended Frederick for violating school policy, which prohibits “any assembly or public expression that . . . advocates the use of substances that are illegal to minors” • SCT upheld suspension. Claimed Hazelwood didn’t apply because the banner didn’t bear the school’s imprimatur. But relied on that case and Fraser to carve out a new reason to find speech unprotected.

10. Morse v. Frederick – the decision • School officials may restrict student speech at a student event that is reasonably viewed as promoting illegal drug use (p. 664) • SCT notes that banner was cryptic but principal’s interpretation was reasonable – Problems with this approach? • SCT claims that speech advocating legalization might have been treated differently because it is political • What if it were a hybrid of promoting illegal and political speech - Bong Hits for Legalization? • To what extent can SCT justify carving out an exception for drug-promoting speech? Is this just ad hoc? Can we distinguish it from speech that promotes pre-marital sex? Is this the beginning of numerous exceptions to Tinker?

11. Can speech that doesn’t occur at school “disrupt” school so that officials can punish it? • Morse found that student speech occurred during a school event and, thus, it was a “school speech” case. • This was controversial as Frederick did not attend school that day, was not standing on school grounds but on a public sidewalk, and the parade was not a school event. Rather, the school dismissed students (with supervision) to attend. However, Frederick was at the parade with friends from class in an area near the school and appeared to have skipped school to avoid punishment. • Other cases involve similar issues – Can schools punish students whose speech did not occur on (1) school grounds, (2) at a school event, or (3) through the use of school property (e.g., computers) because such speech might allegedly disrupt the school environment? • Courts are inconsistent and SCT has never resolved the issue.