LockersMany student discipline matters in public schools involve speech, be it joking threats by the student, outrageous bullying on social media, epithets or hate speech, or clothing containing messages or symbols that violate school rules.  Because they involve speech, these discipline cases can raise substantial First Amendment concerns.

Some view student speech as less valuable than other types of expression in our society, since the speakers are not even adults; others view it as more valuable, perhaps acknowledging that the expression of the young constitutes what will develop into the dominant ideas of the future.  Either way, the legal question whether a school can discipline student speech consistent with constitutional protections always generates sharply divided legal views. The First Amendment trumps not just the rules and actions of local agencies, including school districts, but also the actions of all government agencies, state legislatures, and even Congress.  The federal courts have the final say on the meaning of the First Amendment.

The following is a ten-minute guide to the framework the federal courts have established for answering student constitutional free speech questions.

In December 1965, two public high school students, and one middle school student, in Iowa decided to publicize their objections to the Vietnam War by wearing black armbands to school.  The District learned of their plan in advance and passed a rule prohibiting the black armbands.  The students wore them to school anyway and were suspended.  They thereafter challenged their suspension as unconstitutional.

Four years later, in 1969, the U.S. Supreme Court decided their case in Tinker v. Des Moines Independent Community School Dist.  Justice Fortas writing for the majority famously stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  The Court found the students could only be disciplined if their speech “materially and substantially interfere[s]” with discipline and operation of school, or “collid[es] with the rights of others.”  Elsewhere in the opinion, the Court used the term “disrupt,” questioning whether the students’ speech will “materially and substantially disrupt the work and discipline of the school.”

The Court determined that there was an insufficient threat of disruption to justify the prohibition on black armbands, and  concluded that the District’s prohibition was aimed at prohibiting expression of viewpoint as to the Vietnam War.  The District had argued that unruly protests had been breaking out nationwide about the war, and that some students still at the high school had a friend, a former student, who had been killed in Vietnam.  The Court found these facts insufficient to support the armband prohibition.

In the decades following, the U.S. Supreme Court clarified the rights of school officials to address student speech in public schools.  In 1986, in Fraser v. Bethel School Dist. No. 403, the Court held that a student’s vulgar and offensive school election nominating speech could be a basis for discipline, where it was “plainly offensive” and “inconsistent with the basic educational mission” of the school, even if there was no threat of disruption.  In Hazelwood School District v. Kuhlmeier, in 1988, the Court approved a degree of editorial control by the district over a school-sponsored high school newspaper.  In 2007, in Morse v. Frederick, the Court held that a school district could bar student speech that advocated illegal drug use (and that on the facts presented could not plausibly be interpreted as commenting on a political or social issue).  This allowed a high school principal to take down a student banner at a school-sponsored event that said “Bong Hits for Jesus.”  The Court suggested discipline was permissible under the circumstances regardless of whether there was a threat of disruption that would satisfy Tinker.

Despite the rules expressed in these additional cases, the Tinker standard of threat of disruption and collision with the rights of others remains that most important standard, because it can apply in many different types of scenarios.

What satisfies the Tinker standard?  In recent years, and indeed recent months, the U.S. Court of Appeals for the Ninth Circuit, the federal appellate court covering such western states as California, Oregon, and Washington, has provided substantial guidance.  First, student speech that either threatens violence or constitutes very alarming ruminations on violence, combined with actual access by the student to weapons, can potentially be sufficient.  In August 2013, in Wynar v. Douglas County School District, the Court found that where a Nevada high school student joked to his friends after school hours repeatedly about planning to commit a campus-wide massacre, wrote on Myspace with ideas for killing particular people on the planned day of his massacre (the anniversary of Columbine), had access to guns at home, and created substantial fear among his fellow students, the disruption standard of Tinker was met and the student could be disciplined – even though pure speech was at issue, and even though the student claimed it was all a joke.  The Court described: “The nature of the threats here was alarming and explosive. Confronted with a challenge to the safety of its students, Douglas County did not need to wait for an actual disruption to materialize before taking action. . . .  Tinker does not require school officials to wait until disruption actually occurs before they may act . . . .  ‘In fact, they have a duty to prevent the occurrence of disturbances.’”  The Court observed: “[T]he harm described would have been catastrophic had it occurred.”

In February 2014, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit found the Tinker standard met when Caucasian students wore clothing with the American flag on Cinco de Mayo.  The Court made the controversial holding that the District – under the particular facts of that case and history at the specific school – could require the students not to wear clothing with the flag.  The Court found the threat of disruption standard from Tinker met based on the following facts.  On May 5 in 2009, there was an altercation on campus between a group of predominantly Caucasian students and a group of Mexican students, during which the groups exchanged profanities and threats.  A group of Caucasian students hung a makeshift American flag on one of the trees on campus and began clapping and chanting “USA”; a group of Mexican students responded with shouts and epithets, with one Mexican student stating to the principal that he believed the Caucasian students were being racist.  One student had worn American flag clothing to school that same day on May 5, and he was approached by a male student who, in the words of the district court, “shoved a Mexican flag at him and said something in Spanish expressing anger at [his] clothing.”  The next year, May 5, 2010, when a group of Caucasian students wore American flag clothing, they were questioned by at least one Mexican student why they were doing so on May 5; the administration was warned there may be trouble and were concerned about a physical altercation.  The students were thereafter prohibited from wearing the clothes with the flag and given options including turning shirts inside out or going home (without the absence counting against their attendance).  The District also pointed out in support of the threat of disruption standard that the next day some of these students were the subject of threats that caused them not to go to school on May 7.  In the view of the Ninth Circuit, this level of threat of physical altercation on campus distinguished Tinker, and justified the District in taking action.

What is outside the scope of threat of disruption and collision with the rights of others, as expressed in Tinker?  According to some federal courts, including the U.S. Court of Appeals for the Third Circuit, covering Pennsylvania, New Jersey, and Delaware, the feelings, sensibilities  and possibly reputations of principals and other administrators.  The Third Circuit held in two 2011 decisions decided the same day, Layshock v. Hermitage Sch. District and J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., that a high school and middle school student, respectively, who created fake Myspace profiles of their principals off-campus could not be disciplined consistent with the First Amendment.  One profile had the principal stating, for example, that he was a drunk, promiscuous, and a drug user.  The other contained similar false statements, and ridiculed the principal’s family members.  It was clear from both profiles that they were juvenile parodies that did not rise to the level of defamation.  In both cases, the Third Court found that there was an insufficient threat of disruption on campus to satisfy Tinker, and that the First Amendment precluded discipline of the students.  Very significant to the Court was that the profiles were created off the school grounds and without school resources, and that although the profiles made their way to the school and became known to students and others in the school community, it appeared that the school district was trying to reach “beyond the schoolyard” to impose discipline.

Courts continue to protect student speech in middle schools as well as high schools.  In another Third Circuit case, B.H. ex rel. Hawk v. Easton Area School, the Court in 2013 held that a school district violated the First Amendment by prohibiting middle school students from wearing breast-cancer awareness bracelets to school that stated “I (heart) boobies! (Keep a Breast).”  The Court found that the speech was not vulgar, lewd, or plainly offensive as defined by Bethel (cited above), and that the threat of disruption standard of Tinker was not met.  The Court indicated that the fact that bracelets promoted breast-cancer awareness, an important social issue, confirmed free speech protection was warranted.

As to student speech rights in elementary school, some Courts are skeptical whether Tinker gives substantial First Amendment rights to young children at school.  The expectation is that Courts may more easily find disruption or threat of disruption, allowing discipline.  Also, published cases show Courts inclined to protect elementary school student speech in the context of religious speech.  For example, in K.A. ex rel. Ayers v. Pocono Mountain School Dist., the Third Circuit found it improper for a school district to stop a 5th grade girl from inviting students to her church Christmas event.  In 2008, the Sixth Circuit (encompassing states such as Ohio, Kentucky, and Michigan) in Curry ex rel Curry v. Hensiner advanced the following test for First Amendment rights:  “In an elementary school setting, the appropriateness of student expression depends on several factors, including the type of speech, the age of the locutor and audience, the school’s control over the activity in which the expression occurs, and whether the school solicits individual views from students during the activity.”

What is the most controversial of the recent cases discussed above?  It is probably the Dariano high school case, in which the Court found that the District could bar American flag clothing in limited circumstances on May 5.  Media and legal commentators have focused repeatedly on the case.  The Ninth Circuit may, in the next several months, decide to re-hear the case en banc (i.e., to have an 11-judge panel re-hear the 3-judge decision).  Although the odds are longer, later in the year, the U.S. Supreme Court also may decide to review the case.  We will keep you posted on developments.