Until 1969, First Amendment freedoms were not considered to apply seriously to school-age children. However, the 1969 Supreme Court ruling in Tinker v. Des Moines Schools changed everything. Suddenly, students did not shed their constitutional rights at the schoolhouse gates, as Justice Abe Fortas famously wrote. This slide presentation reviews the four major Supreme Court decisions that shape today's so-called school speech.

1. The First Amendment and Public Schools
Key Supreme Court Cases
Tinker v. Des Moines, 1969
Bethel v. Fraser, 1986
Hazelwood v. Kuhlmeier, 1988
Morse v. Frederick, 2007

2. Tinker v. Des Moines Schools

3. Tinker v. Des Moines Schools
In December 1965,
Sen. Robert Kennedy
called for a truce in
the Vietnam War

4. Tinker v. Des Moines Schools
Several students and their parents
supported the truce proposal.

5. Tinker v. Des Moines Schools
The Tinkers were a family of peace activists

6. Tinker v. Des Moines Schools
The students decided
to show support for the truce
by wearing...

7. Tinker v. Des Moines Schools

8. Tinker v. Des Moines Schools
The students set
Thursday, Dec. 16, 1965,
as the day they would all
wear black armbands
in support of the truce

9. Tinker v. Des Moines Schools
Getting wind of the plan,
the district's secondary school principals
met on Tuesday, Dec. 14, and
agreed to suspend any student
who refused to remove an armband

10. Tinker v. Des Moines Schools
(Not the actual Des Moines principals)

11. Tinker v. Des Moines Schools


Five students were suspended for wearing
armbands.
Three of them took their case all the way to
the U.S. Supreme Court:
−
−
−
Christopher Eckhardt, 16
John Tinker, 15
Mary Beth Tinker, 13

12. Tinker v. Des Moines Schools

13. Tinker v. Des Moines Schools
The big question:
Does a prohibition against the wearing of
armbands in public school, as a form of
symbolic protest, violate the students'
freedom of speech protections guaranteed
by the First Amendment?

14. Tinker v. Des Moines Schools
The court began by asking itself:

15. Tinker v. Des Moines Schools
The court began by asking itself:

Were the black armbands a form of symbolic speech
protected by the First Amendment?

16. Tinker v. Des Moines Schools
The answer:

Yes, the armbands were a form of symbolic speech
protected by the First Amendment.

17. Tinker v. Des Moines Schools
The court then asked itself:

Does a school have the power to restrict that speech
in the interest of maintaining order?

18. Tinker v. Des Moines Schools
The answer:

Yes, if that speech posed...
−
−
“A material and substantial interference with
schoolwork or discipline” or
An invasion of other people's rights

19. Tinker v. Des Moines Schools
The court ruled that the armbands did NOT pose:


“A material and substantial interference with
schoolwork or discipline” or
An invasion of other people's rights

20. Tinker v. Des Moines Schools
Therefore, in 1969,
the Supreme Court ruled 7-2
in favor of the students

21. Tinker v. Des Moines Schools

“It can hardly be argued
that either students or
teachers shed their
constitutional rights to
freedom of speech or
expression at the
schoolhouse gate.”
– Justice Abe Fortas
Champion of children's rights

22. Summarizing School Speech
“Tinker” still stands:
Students are free to speak
unless
the speech interferes substantially
with schoolwork or discipline.

23. Summarizing School Speech
However...

24. Summarizing School Speech
Subsequent Supreme Court decisions have eroded
away some of Tinker's protections

25. Bethel v. Fraser

26. Bethel v. Fraser
The scene:

Bethel High School

Spanaway, Wash., 1983

A 600-student assembly

Matthew Fraser, a senior, nominated a fellow
student for student body vice president

27. Bethel v. Fraser
The speech was filled with sexual innuendos

28. Bethel v. Fraser

29. Bethel v. Fraser
Fraser was disciplined for violating
the school's “disruptive conduct rule”

30. Bethel v. Fraser
Fraser's discipline consisted of the following:

Three-day suspension

Prohibition from speaking at graduation

Removal from the ballot used to elect three
graduation speakers

31. Bethel v. Fraser
The school defined “disruptive conduct”
as conduct that substantially interferes
with the educational process,
including the use of obscene,
profane language or gestures.

32. Bethel v. Fraser
Fraser filed a federal lawsuit
against the Bethel School District,
alleging violation of his
First Amendment rights

33. Bethel v. Fraser



The U.S. District Court in Seattle ruled in favor of
Fraser.
The Ninth Circuit Court of Appeals in San Francisco
ruled in favor of Fraser.
Bethel School District appealed to the U.S. Supreme
Court.

34. Bethel v. Fraser
The big question:
Does the First Amendment prevent a school district
from disciplining a high school student for giving a
lewd speech at a high school assembly?

35. Bethel v. Fraser
The court first asked itself:

Was Matthew Fraser's speech the highest form of
protected speech?
−
That is, was it pure speech, mixed speechand-action, or symbolic speech?

36. Bethel v. Fraser
The answer:

No, it was lower-valued speech because of its
profane, erotic content.

37. Bethel v. Fraser
The answer:


No, it was lower-valued speech because of its
profane, erotic content.
Lower-valued speech gets intermediate scrutiny
from the court.

38. Bethel v. Fraser
Intermediate scrutiny means:



The law furthers an important government interest.
The government's interest is unrelated to
suppression of free expression.
The restrictions imposed are no greater than
necessary.

39. Bethel v. Fraser
In 1986, the Supreme Court ruled 7-2
in favor of Bethel School District

40. Bethel v. Fraser
The court ruled that:


Schools had an important interest in shielding
younger children from vulgar and lewd speech.
Vulgar and lewd speech was inconsistent with the
“fundamental values of public school education.”

41. Hazelwood v. Kuhlmeier

42. Hazelwood v. Kuhlmeier
The scene:

Hazelwood East High School

Hazelwood, Mo., 1983


The Spectrum, Hazelwood's student newspaper,
prepares to publish articles on teen pregnancy and
divorce
The paper changed names of the quoted students to
protect their identities

43. Hazelwood v. Kuhlmeier
“Sixteen-year-old Sue had it all — good
looks, good grades, a loving family and a
cute boyfriend. She also had a seven
pound baby boy.”

44. Hazelwood v. Kuhlmeier
The school
principal
killed the
articles
before they
could be
published,
fearing the
students
could be
identified

45. Hazelwood v. Kuhlmeier
The principal also
felt that
younger students
should not be
exposed
to discussions of
birth control
and that parents
should be allowed
to respond to
articles about
divorce

46. Hazelwood v. Kuhlmeier
Spectrum Editor Cathy Kuhlmeier and
reporters Leslie Smart and Leanne Tippett
filed a federal lawsuit, alleging violation
of their First Amendment rights

47. Hazelwood v. Kuhlmeier

The U.S. District Court in St. Louis ruled against the
students, saying that schools had a right to censor
student speech if:
−
−
The activities were “integral” to the school's
educational function, and
The censorship has “a substantial and
reasonable basis”

48. Hazelwood v. Kuhlmeier

The Eighth Circuit Court of Appeals, also in St.
Louis, overruled the district court in favor of the
students.

49. Hazelwood v. Kuhlmeier


The Eighth Circuit Court of Appeals, also in St. Louis,
overruled the district court.
The appeals court declared that The Spectrum was a public
forum, “intended to be and operated as a conduit for student
viewpoint”

50. Hazelwood v. Kuhlmeier



The Eighth Circuit Court of Appeals, also in St. Louis,
overruled the district court.
The appeals court declared that The Spectrum was a public
forum, “intended to be and operated as a conduit for student
viewpoint”
Public forums require that courts use strict scrutiny when
reviewing a law's constitutionality

51. Hazelwood v. Kuhlmeier

Strict scrutiny requires that the law be:

52. Hazelwood v. Kuhlmeier

Strict scrutiny requires that the law be:
−
Necessary to achieve a compelling government
interest.

53. Hazelwood v. Kuhlmeier

Strict scrutiny requires that the law be:
−
Necessary to achieve a compelling government
interest.
−
Narrowly tailored to achieve the intended result.

54. Hazelwood v. Kuhlmeier
The question for the Supreme Court:
Who was right: the district court, which supported the
schools, or the appeals court, which supported the
students?

55. Hazelwood v. Kuhlmeier
The court considered the Tinker decision:

Students do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse
gate.”

56. Hazelwood v. Kuhlmeier
The court also considered the Bethel decision:

“A school need not tolerate student speech that is
inconsistent with its basic educational mission.”

57. Hazelwood v. Kuhlmeier
To reach its decision, the court needed to answer the
question at the heart of the case:

Was The Spectrum a “public forum”?

58. Hazelwood v. Kuhlmeier
In other words,
was The Spectrum considered
a place where students
openly exchanged viewpoints?

59. Hazelwood v. Kuhlmeier
If The Spectrum was a public forum,
the principal's censorship would have to pass
the highest standard of strict scrutiny

60. Hazelwood v. Kuhlmeier
The court's answer:


No, Hazelwood's student newspaper was NOT a
“public forum.”
School-sponsored newspapers, theatrical
productions and other school-sponsored expression
was lower-valued speech, subject to restrictions.

61. Hazelwood v. Kuhlmeier
The court said that as long as...

62. Hazelwood v. Kuhlmeier
The court said that as long as...

The activity is sponsored by the school

63. Hazelwood v. Kuhlmeier
The court said that as long as...


The activity is sponsored by the school
The school's actions are reasonably related to
legitimate “pedagogical” (educational) concerns,
and

64. Hazelwood v. Kuhlmeier
The court said that as long as...



The activity is sponsored by the school
The school's actions are reasonably related to
legitimate “pedagogical” (educational) concerns,
and
The activity or publication is not a public forum for
student expression...

65. Hazelwood v. Kuhlmeier
Then...

66. Hazelwood v. Kuhlmeier
Schools can censor student speech that is...

Ungrammatical

Poorly written

Inadequately researched

Biased or prejudiced

Vulgar or profane

Unsuitable for immature audiences, or

Advocates “conduct otherwise inconsistent with the
shared values of the civilized social order”

67. Hazelwood v. Kuhlmeier
The court's decision was 5-3
in favor of the school district

68. Hazelwood v. Kuhlmeier
Does the Hazelwood decision
apply to all schools?

69. Hazelwood v. Kuhlmeier
No
“Hazelwood” does not apply to schools that let their
student publications operate as public forums, in
which students make all decisions about content.

70. Hazelwood v. Kuhlmeier
Public-forum publications can be censored...
ONLY
...if the school can show they will cause a “material
and substantial disruption” of school activities

71. Hazelwood v. Kuhlmeier
Schools also cannot censor student publications
published off-campus without school sponsorship

72. Morse v. Frederick

73. Morse v. Frederick
The scene:




Juneau, Alaska, 2002
Olympic Torch Relay attended by Juneau-Douglas
High School students as a field trip
Joseph Frederick, a senior, unfurled a banner saying
“Bong Hits 4 Jesus”
The principal told Frederick to put away the banner.
He refused.

74. Morse v. Frederick
The principal confiscated the banner and suspended
Frederick for 10 days.
She said Frederick's actions violated
school policy, which forbids advocating
the use of illegal drugs.

75. Morse v. Frederick
Frederick filed a federal lawsuit against
the school principal, Deborah Morse.

76. Morse v. Frederick
The question for the courts:
Can school authorities stop students from expressing
views that may be interpreted as promoting illegal
drug use?

77. Morse v. Frederick



The U.S. District Court in Alaska ruled in favor of
Morse, the principal.
The Ninth Circuit Court of Appeals in San Francisco
ruled in favor of Frederick, the student.
The principal appealed to the U.S. Supreme Court.

78. Hazelwood v. Kuhlmeier
Once again, the court considered the Tinker decision:

Students do not “shed their constitutional rights to
freedom of speech or expression at the schoolhouse
gate.”

79. Hazelwood v. Kuhlmeier
The court also considered the Bethel decision:

“A school need not tolerate student speech that is
inconsistent with its basic educational mission.”

80. Hazelwood v. Kuhlmeier
The court also considered the Kuhlmeier decision:

The rights of students are applied “in light of the
special characteristics of the school environment”

81. Morse v. Frederick
In 2007, the Supreme Court ruled 6-3
in favor of Morse, the school principal

82. Morse v. Frederick
The court's reasoning:



The speech was not political in nature
“Bong Hits 4 Jesus” reasonably could be
viewed as promoting illegal drug use
The school had an “important” if not
“compelling” interest in prohibiting or
punishing student speech that promotes illegal
drug use

83. Morse v. Frederick
Justice Clarence
Thomas further
argued that “Tinker”
should be overturned.
He said the First
Amendment was not
meant to protect
student speech in
public schools.

84. Morse v. Frederick
Justices Anthony Kennedy and Samuel Alito cautioned
that the decision could be used to punish those
advocating constitutionally permissible, but
unpopular, political ideas, such as legalizing medical
marijuana use.

85. Morse v. Frederick
Justice John Paul Stevens
disagreed with the majority
because:
 The school banned speech
based on its content.
 Frederick's banner was too
vague to assume it
promoted illegal drug use.

86. Summarizing School Speech
“Tinker” still stands: Students are free to speak unless
the speech interferes substantially with schoolwork
or discipline – and except if the speech is:



Lewd (“Bethel”)
Takes place in a school-sponsored publication or
performance (“Hazelwood”)
Promotes illegal drug use (“Morse”)