The First Amendment: How Much Does it Protect Students?

By Sierra Fang-Horvath, Feature Editor

// Few students pay attention to the unassuming sign hanging by the door of Acalanes classrooms. The sign, however, affirms one of the most important Acalanes principles: tolerance. The sign reads, “Degrading, racial, ethnic, homophobic, sexist or other hateful remarks ARE NOT acceptable here.”

   While students may not give the sign a second thought, this tolerance policy was the topic of a scathing 2008 op-ed, titled “Torching free speech in the name of tolerance,” published in the San Francisco Chronicle by David McDiarmid, a 2009 Acalanes graduate. McDiarmid, while commending administration’s attempts to promote a tolerant learning environment, argued that the policy “attempted to silence opposing viewpoints and [did] much to stifle reasonable debate.”

   However, Acalanes Union High School District (AUHSD) Superintendent John Nickerson, Ed.D., who was the Acalanes principal at the time of the op-ed’s publication, believes that the tolerance policy poses no threat to student free speech.

   “We feel very strongly that the whole purpose of limiting First Amendment rights in school is to prevent the disruption of the educational environment and the ability of students to be in a comfortable, safe place,” Nickerson said.

   The article, and Nickerson’s response to it, raise an important question: to what extent does the First Amendment protect student freedoms of expression?

   The answer is apparently not very clear to Acalanes students.

   In a Blueprint-conducted survey of 184 Acalanes students, 46.2 percent believed that students are equally protected by the First Amendment both on and off public school campus, while 53.8 believed they aren’t.

   According to Frank LoMonte, the Executive Director of the Student Press Law Center (SPLC), a Washington, D.C.-based legal assistance agency devoted to educating students on the First Amendment, public school students have practically all the same freedoms as normal citizens.

   “The Supreme Court has said that students have significant free speech rights even on school grounds, even during school hours,” LoMonte said. “They’re not quite at the same level as the ordinary citizen walking down the street, but they’re pretty substantial.”

   When applied to schools, the term “free speech” is often used to encompass any form of student expression, including student journalism, activism, art, apparel and general appearance, music, and, of course, the words from a student’s mouth.

   Nickerson describes the AUHSD free speech policies as both normal and rather lenient.

   “Our free speech policy is probably consistent with those of most school districts. Our schools are pretty progressive in terms of allowing students to express themselves,” Nickerson said.

   One surveyed Acalanes student explained that, “[as] students, we forfeit some of these rights because we are in a setting where certain things are not appropriate.” As noted by the student, key differences exist between the First Amendment’s protection of normal people on the street and public school students on a campus.

   According to Vincent Blasi, a professor of civil liberties at the Columbia Law School in New York City and a specialist in constitutional law and the First Amendment, this difference stems from public schools’ classification as “special domains.”

   “It’s broadly accepted that specialized domains can regulate speech more in order to serve their specialized objectives, so whether you’re talking about the army, a prison, or a school, these are communities with special objectives,” Blasi said.

   Blasi believes that, because schools are special domains, the Acalanes tolerance policy is perfectly acceptable by constitutional standards.

   “The Acalanes tolerance policy would not be a violation of the First Amendment because in a specialized environment like a school, it can be contrary to the whole mission of the school if some students are being targeted by others,” Blasi said. “If you’re on the street corner, you have to deal with the fact that some people are going to be more aggressive or dislike you. However, a directed comment demeaning a classmate is much more liable to be regulated in a special environment like a school. ”

   A problem with this tolerance policy, however, might arise if administration punishes violators of the policy because, while some might believe that certain comments are light banter, others might construe them as “fighting words,” or language that is intended or anticipated to provoke a fight, which is not protected by the First Amendment.

   “If you punish a high school student for arguing that school attempts to maximize integration are foolish or that gay marriage is immoral, then it might be a violation of the First Amendment to punish them for saying those things,” Blasi said.

   LoMonte also believes that, while the policy itself is most likely not an infringement of First Amendment rights, the penalty attached to violating that policy is more problematic.

   “It’s a perfectly valid use of a teacher’s classroom management authorities to discourage students from insulting each other during class,” LoMonte said. “But the First Amendment comes into play when something is backed up with disciplinary sanctions. By all means, schools should be teaching people to talk to each other in a professional, respectful way, but once they start enforcing it by way of suspension or expulsion, that’s when they’re potentially treading on legally protected rights. It comes down to the context and method of delivery.”

   Student freedoms of expression are, however, protected at both the federal and state levels.

   At the federal level, numerous court cases have set precedents for student speech in schools. One of the first landmark student free speech cases, Tinker v. Des Moines Independent Community School District, reached the Supreme Court in 1968. A few high school students in Des Moines, Iowa were suspended for wearing black armbands to school to protest the United States’ involvement in the Vietnam War. The school district claimed that the students had violated the high schools’ policies against armband-wearing.

   However, the Supreme Court, in a 7-2 overturn of the suspensions, argued that the armbands did not disrupt the school’s environment and were thus protected by the First Amendment. The majority opinion famously stated that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

   “The Supreme Court has drawn a line at the point where your speech substantially disrupts school operations,” LoMonte said. “Until you reach the point where your speech is creating a significant disruption of school activities, you can say what you want under federal law.”

   However, such freedoms did not remain intact forever; the Supreme Court limited the freedoms of student speech by prohibiting sexually vulgar or profane language in the 1986 Bethel School District v. Fraser ruling.

   To add insult to injury, the Supreme Court yet again ruled to limit student free speech in the 2007 Morse v. Frederick case. Joseph Frederick was suspended by principal Deborah Morse after displaying a large sign across from his school reading “Bong Hits 4 Jesus.” The court ruled that Frederick’s sign could reasonably be construed as advocacy of drug use, and therefore decided to uphold the suspension.

   However, William Bennett Turner, the author of Free Speech: Supreme Court Opinions from the Beginning to the Roberts Court and a professor on freedoms of speech and press at the University of California, Berkeley, disagrees with the Morse v. Frederick decision.

   “The outcome of Morse v. Frederick was unprincipled, unnecessary, and disappointing. It’s bad news for student speech, and it’s not a decision that has good rationale,” Turner said.

   The outcome of Morse v. Frederick also introduces the pertinent debate between intent versus interpretation. While Frederick claimed his iconic poster meant no harm, the school’s principal, and later Supreme Court, interpreted it to be advocacy of drug use.

   “There are numerous examples where a student has been joking around, but the speech is perceived as violent or threatening. If the student claims that the speech is innocently intended as a joke, they are never going to win that argument in court,” LoMonte said. “What matters is what the audience could realistically perceive, not what was in the mind of the speaker.”

   Despite these blows, the California Legislature has carved out special protection for student expression by passing the Leonard Law, encompassed in California Education Code 48950.

   “The Leonard Law says that you can’t be disciplined for any speech that would be constitutionally protected when you’re off campus,” SPLC’s LoMonte said. “That places your speech on par with the speech of ordinary citizens. A school can’t punish the content of speech unless it crosses some extreme lines, like threatening violence or inciting a panic.”

   These additional protections, although not accounted for in the Bill of Rights or previous Supreme Court decisions, can be justly outlined by a state so long as they don’t break any federal laws, according to UC Berkeley’s Turner.

   “California voluntarily steps forwards and gives students rights that the First Amendment doesn’t give them,” Turner said. “The Bill of Rights is a floor, not a ceiling, on rights.”

   The First Amendment also guarantees freedom of the press, as noted by one surveyed Acalanes student that described the freedom of the press as “one of the most crucial aspects to a democracy.” 63.6 percent of surveyed Acalanes students incorrectly believed that California public school student publications are protected by the First Amendment to the same extent as professional publications, while 36.4 percent correctly believe they are not.

   Once again, the Supreme Court ruled to limit student freedoms of expression, this time regarding student journalism, in the landmark Hazelwood School District v. Kuhlmeier ruling.

   Often viewed as one of the most detrimental blows to student free speech, Hazelwood v. Kuhlmeier drew national attention when it reached the Supreme Court in 1987. Cathy Kuhlmeier, the editor of a school-funded student newspaper at a school in the Hazelwood School District of St. Louis County, Missouri, filed a First Amendment-infringement lawsuit against the school district after her school’s principal removed two stories, one about teenage pregnancy and the other about divorce, from the paper prior to its publication.

   Upon reaching the Supreme Court, student journalism was dealt a massive blow when the court decreed that school-sponsored activities, including a school-funded student newspaper, are not protected from administrative censorship under the First Amendment.

   California, however, yet again moved to protect student freedoms by passing state legislation that counters this ruling, this time in California State Education Code 48907. This code protects both school and independently-funded journalistic entities, and states that censorship of journalistic material is prohibited, except in the cases of obscenity, libel, slander, or language that incites immediate unlawful acts or violations of school regulations.

   Hazelwood v. Kuhlmeier says that your federally-protected rights are greatly lowered beneath the Tinker level of protection if you’re using a state-funded medium, but then the California law restores those rights,” LoMonte said. “The Supreme Court is saying, ‘Here is the line you can’t cross,’ but they’re not setting a ceiling.”

   AUHSD, according to Nickerson, has not had an issue with censorship for a while, partially due to these expanded student journalism rights under the State Education Code.

   “[AUHSD] administrations don’t always support or celebrate what is coming out in the newspapers, but the administrators in this district greatly values the role of student press and respects the freedoms of student press,” Nickerson said.

   A whole different can of worms is opened, however, when discussing free speech rights of private school students.

   “Under the federal Constitution, it’s simple: there are no constitutional rights at private colleges and high schools, and there is no requirement at all that a private school has to give you any degree of First Amendment protection,” LoMonte said.

   According to Columbia’s Blasi, the speech rights of public and private school students differ because public schools are stems of the government, while private schools are not. Once again, however, the California State Legislature has come to the rescue.

   “The California Legislature has passed state laws that extend substantial free speech protections to students at both private colleges and high schools. California Education Code 48950 applies equally to public and private secondary schools,” LoMonte said. “If you’re at a private high school in California, you have free speech protection very much like an American citizen outside of school would.”

   The sole private school exceptions to the rule are religious schools.

   “[A religious school] can enforce religious doctrine and restrict speech that directly undermines their religious message,” LoMonte said. “If you wanted to give out pamphlets at a Catholic high school directing students to where they can get birth control, the high school could deny you the right to distribute those on campus during the school day.”

   With generations of lawsuits, Supreme Court rulings, and state and federal laws regarding student free speech, the rules binding student expression are often unclear and unknown.

   LoMonte adds that many free speech rulings come down to pure luck.

   “Free speech is blurry not only from cases to case, but also from judge to judge. Some judges take a more lenient view of free speech rights in schools, and others are more authoritarian,” LoMonte said. “People have had very mixed luck challenging school policies.”

   Blasi echoed LoMonte’s beliefs that free speech laws, and law in general, are often very ambiguous and confusing.

   “A lot of law is not as cut and dry as most non-lawyers wish it were,” Blasi said. “You expect that you can just turn to legal authorities and get confident, specific answers. The nature of law is that every time you lay down a legal principle, the next case will test how far you can stretch it, so there’s a lot of uncertainty at the outer edges of legal doctrine.”

   So what have we learned? Students have a hel – I mean heck – of a lot of free speech rights on public school campuses.

Leave a Reply