Supreme Court Student Speech Cases

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The US Supreme Court has not yet addressed the free speech rights of students in a cyberbullying context, but past cases are helpful in predicting how such a situation might be resolved by the Court. 


1.    
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943):  The First Supreme Court case recognizing student free speech rights.

a.     
Here, students successfully challenged a school rule requiring all students to salute the American flag or face expulsion.  SCOTUS held that the speech and religion clauses of the First Amendment do not permit a school to force students to salute the flag.

b.    
SCOTUS recognized the need of schools to have some discretion when dealing with school administration and students, but stated that school actions must still conform to the Bill of Rights.

 

2.    
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969): the seminal Supreme Court case protecting student free speech rights

a.     
Here, students successfully challenged a school rule prohibiting the wearing of black arm bands in protest of the Vietnam War. The Court explained, "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . . Students in school as well as out of school are 'persons' under our Constitution [and] are possessed of fundamental rights."

b.    
However, the Court also recognized the need "for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." To balance these competing interests, the Court allowed schools to restrict student speech rights if the speech at issue would cause a "material and substantial interference with schoolwork or discipline," or an "invasion of the rights of others."   

c.     
The Court held that the wearing of black arm bands in protest of the Vietnam War did not meet this standard.  

d.    
Importantly, when the Court stated that students do not shed their First Amendment rights at the schoolhouse gate, it implied that they have full First Amendment rights outside of schoolhouse gates.  Otherwise, they would have nothing to shed.  As a result, it can be argued that if student speech takes place off-campus, is not during a school function, and uses no school resources, a school cannot punish the student for that speech without violating his First Amendment rights.


3.    
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986): SCOTUS begins to defer to school officials, and departs from its former cases protecting student free speech rights.

a.     
Here, a student unsuccessfully challenged his school’s decision to punish him for making a speech containing sexual innuendo at a school assembly.

b.    
The Court held that the free speech rights of students are not the same as those of adults, and indicated that courts should defer to a school board’s determination of what rules were necessary to maintain discipline during school activities, such as a determination of what speech is appropriate in a school activity.

c.     
Importantly, the Court never expressly found that the speech was materially disruptive or that it interfered with the rights of fellow students.  This suggests a departure from the test laid out in Tinker.

d.    
Justice Brennen concurred in the majority opinion, but emphasized that"[i]f respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language inappropriate."  This statement could have an important impact on the Court’s resolution of future cases involving cyberbullying that occurs outside of the school environment.    


4.    
Hazelwood School District v. Kuhlmeir, 484 U.S. 260 (1988):  SCOTUS further defers to school officials, allowing the censoring of a school newspaper

a.     
Here, students unsuccessfully challenged a school’s decision to censor a student newspaper article discussing student pregnancy and the effect of divorce on school students.  The newspaper was created as a part of a class.

b.    
The Court stated that a school's authority to prohibit student speech was not limited to speech that is materially disruptive or interfered with the rights of fellow students. Instead, the Court held that schools could restrict "expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."  The court also stated that school officials are permitted to control student speech in school-sponsored activities provided that "their actions are reasonably related to legitimate pedagogical concerns."

c.     
This case seemed to create a new sweeping standard allowing schools to inhibit student free speech rights.  However, the Court also acknowledged that schools may regulate some speech "even though the government could not censor similar speech outside the school."  This statement could have a large impact on the resolution of cyberbullying cases occurring off-campus.  


5.    
Morse v. Frederick, 551 U.S. 393 (2007): SCOTUS further defers to school officials, allowing the punishment of student speech occurring off of school grounds, but during a school sponsored and supervised event.

a.     
Here, a student unsuccessfully challenged a school’s decision to punish him for holding a banner stating “Bong Hits For Jesus” during the Olympic Torch relay as it passed by the school

b.    
The Court held that a school can restrict student speech that is reasonably regarded as promoting illegal drug use.  Although this holding is expressly limited by the court to student speech promoting illegal drug use, the opinion suggests that the court is increasingly willing to defer to school officials determination of the need to punish students for speech that has the potential to impede the educational process.  

c.     
The Court stated that Tinker's materially disruptive analysis was not the only governing standard for permissible restrictions of student expression.  Instead, the Court reaffirmed the principle that students in public schools do not receive the same free speech rights as adults due to the "special characteristics of the school environment."


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