First Amendment Cases Involving High School Students

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.

Questions to consider…

Should students be allowed to express their beliefs about religion in homework, artwork, and written/oral assignments? Should students be allowed to wear any symbol or statement that expresses their beliefs? Should a high school paper be allowed to publish articles about teen-pregnancy?Should the news staff be allowed to interview pregnant teens, write about their situation, as long as their names are changed? Should students, without penalty from their school, be allowed to express any comment about school-related issues on the Internet?

1999 Peck v. Baldwinsville School DistrictAntonio Peck, kindergarten when parents filed suit against this N.Y. school districtAssignment: Create a poster reflecting what he had learned about protecting the environment. His poster: depicted people picking up trash and recycling, included a figure of a kneeling man that Antonio meant to be Jesus.School response: fold picture in half to hide figure because of fear of violating establishment clause of First Amendment.

Ruling: district judge sided with school 3xscircuit court of appeals reversed his decision 2xs School officials insist that the First Amendment gives them the right to keep all reference to religion out of student assignments. 10 year court battle

Which side do you believe is correct?School, district judge, or parents, circuit court of appeals?

Most legal experts agree with the current U.S. Department of Education guidelines, which state that "students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions."

Bretton Barber (ACLU) v. Dearborn Public Schools, 2003

Senior Bretton Barber wore a t-shirt to school with picture of President Bush that read, “International Terrorist. ”

School response: Principle ordered Barber to remove t-shirt. School believed that schoolyard is an inappropriate debate place for political debate.

Should students be allowed to wear any symbol or statement that expresses their beliefs?

Ruling: District judge sides with Barber

"The court's decision reaffirms the principle that students don't give up their right to express opinions on matters of public importance once they enter school," said Kary Moss, Executive Director of the ACLU of Michigan. "Schools are not speech-free zones.“

In granting the order, Judge Patrick J. Duggan noted that "there is no evidence that the t-shirt created any disturbance or disruption" in the school and that "the record does not reveal any basis for [the assistant principal's] fear aside from his belief that the t-shirt conveyed an unpopular political message."

Tinker v. Des Moines, 1969John and Mary Beth Tinker wore black arm

bands to school as part of community protest of Vietnam War.

School officials created rule that wearers would be suspended.

Tinkers wore armbands, were suspended until returned to school with no armbands. Tinkers filed suit in district court to stop principals from enforcing rule in future.

Ruling: Although District Court said that this type of protest was a form of expression protected under the First Amendment's freedom of speech clause, the Court sided with the school officials, saying that the rule was needed to "prevent the disturbance of school activities."

The Tinkers appealed their case to the U.S. Eighth Circuit Court of Appeals, but they lost. The Tinkers decided to appeal the case to the Supreme Court of the United States.

The fundamental question of the case came down to this: Does the First Amendment's promise of free speech extend to the symbolic speech of public school students? And, if so, in what circumstances is that symbolic speech protected? The First Amendment to the Constitution says, "Congress shall make no law . . . abridging the freedom of speech." The Fourteenth Amendment extends this rule to state government as well, of which schools are a part. However, the First Amendment does not say which kinds of speech are protected. It also does not specify what types of expressive actions should be considered as speech.

The question of what kind of speech or action is protected under the First Amendment has been considered many times by the Supreme Court of the United States. Generally, the Court has held that the First Amendment protects adult symbolic speech that does not harm or threaten to harm. However, at the time of Tinker, it was unclear whether students' rights in this area were different. In 1968 the Supreme Court of the United States agreed to hear the Tinker's case and consider whether the Des Moines public schools ban on armbands was an unconstitutional violation of the students' right to free speech. The Court's decision in Tinker v. Des Moines was handed down in 1969.

In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War. The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.

Twenty years later a more conservative view held by the courts. The Hazelwood vs. Kuhlmeier case arose from a dispute in 1985 between editors of a St. Louis suburban high school newspaper and the school administration over censorship of controversial stories.

Hazelwood School District v. Kuhlmeier

Did the principal of Hazelwood East High School violate the First Amendment rights of his students by deleting two pages of the Spectrum, the school-sponsored newspaper that was produced in a school journalism course?

Usual procedure: teacher submits paper for prior review before going to print After reviewing May 13 edition of the paper, principal Robert Reynolds decided that two articles should not be published. The articles covered teenage pregnancy at Hazelwood East and the effects of divorce on students. Due to time constraints, he blacked out 2 entire pages of paper.

This is how the story on teen pregnancy in the May 13 issue of the Spectrum began:

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. Each year, according to Claire Berman (Readers Digest, May 1983), close to 1.1 million teenagers — more than one out of every 10 teenage girls — become pregnant. In Missouri alone, 8,208 teens under the age of 18 became pregnant in 1980, according to Reproductive Health Services of St. Louis. That number was 7,363 in 1981.

The article followed with personal accounts of three Hazelwood East students who became pregnant. The names of all three were changed:

Terri: I am five months pregnant and very excited about having my baby. My husband is excited too. We both can’t wait until it’s born. . . . Patti: I didn’t think it could happen to me, but I knew I had to start making plans for me and my little one. . . . Julie: At first I was shocked. You always think ‘It won’t happen to me.’ I was also scared because I did not know how everyone was going to handle it. . . .

Should a high school paper be allowed to publish articles about teen-pregnancy?

Should the news staff be allowed to interview pregnant teens, write about their situation, as long as their names are changed?

Court’s decision:Newspaper was not a public forum so not protected under Tinker case.Claimed paper was school-sponsored, allowing control of content as in other curriculum related materials.Newspaper and staff were under faculty supervision, with the purpose of teaching skills or knowledge using school resources. Most important outcome was that it allowed administrators prior review allowing the principal to act as the newspaper’s publisher, acting on behalf of the citizens of the district.

Opposition to this view believes that the public school is supported by the government, therefore, it is protected under the First Amendment. Prior review causes interruption to deadlinesPrior review provokes self-censorship by a nervous staff

Public Forum: A public forum is a place that has, by tradition or practice, been held out for general use by the public for speech-related purposes.

"Hence, school facilities may be deemed to be public forums only if school authorities have 'by policy or practice' opened those facilities for 'indiscriminate use by the general public,' or by some segment of the public,

If you were a high school principal, would your relationship with the school’s newspaper be based in the Tinker standard or the Hazelwood guidelines? Explain.

Katherine Evans v. Peter Bayer, 2010

Senior at a Florida high school, Evans created a Facebook page entitled “Ms. Sarah Phelps is the worst teacher I’ve ever had” from her home computer and invited other students to voice their dislike of her teacher.

After several students’ postings defended the teacher and berated Evans for her opinion, Evans took the page down.

School response: Evans was suspended for three days and removed from Advanced Placement classes as a punishment for her Internet posting.

Evans, with support of ACLU, sued Bayer for injunctive relief, seeking to clear her record, and nominal damages. The Principal moved to dismiss the case.

Should students, without penalty from their school, be allowed to express any comment about school-related issues on the Internet?

“In a ground-breaking case involving freedom of speech on Facebook and other social networking tools, the American Civil Liberties Union (ACLU) of Florida won the initial round…” “

“This is an important victory both for Ms. Evans and Internet free speech because it upholds the principle that the right to freedom of speech and expression in America does not depend on the technology used to convey opinions and ideas,” noted the ACLU of Florida’s Associate Legal Director.

The Court’s ruling recognizes that Evans’ off-campus Facebook posting of her

opinion about a teacher “falls under the wide umbrella of protected speech. It was a student’s opinion about a teacher, which was published off campus, did not cause any disruption on campus, and was not lewd, vulgar, threatening, or advocating

illegal or dangerous behavior.”