The First Amendment
By David
L. Hudson Jr., First Amendment Center
research attorney
http://www.firstamendmentcenter.org/Speech/studentexpression/overview.aspx
http://www.firstamendmentcenter.org/Speech/studentexpression/overview.aspx
THE FIRST AMENDMENT
“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.”
Public
school students do not lose their constitutional rights when they walk through
the schoolhouse doors. The U.S. Supreme Court has recognized that “students in
school as well as out of school are ‘persons’ under our Constitution.” This
means that they possess First Amendment rights to express themselves in a
variety of ways. They can write articles for the school newspaper, join clubs,
distribute literature and petition school officials.
But
public school students do not possess unlimited First Amendment rights. Two
legal principles limit their rights. First, as the Supreme Court has said,
minors do not possess the same level of constitutional rights as adults.
Second, the government generally has greater power to dictate policy when it
acts in certain capacities, such as educator, employer or jailer. For instance,
a school principal can restrict a student from cursing a teacher in class or in
the hallway. However, the principal would have limited, if any, authority to
punish a student for criticizing a school official off-campus.
This
principle of greater government control applies broadly in the public schools.
The paramount duty of public school officials is to educate children in a safe
environment. As one federal court put it: “Learning is more important in the
classroom than free speech.”
Today,
many First Amendment struggles occur in the public schools. Here are some of
the leading issues:
Speaking out in school:
The
First Amendment protects the right of citizens to express themselves in a
variety of ways. Public school students, as young citizens, may engage in many
modes of expression — from the words they speak to the ideas they write and
even the clothes they wear.
In
the 1969 case Tinkerv. Des Moines Independent Community School District, the high court ruled
7-2 that school officials violated the First Amendment rights of three Iowa
students by suspending them for wearing black armbands to school. The Supreme
Court established a protective standard for student expression in Tinker, which
says that school officials cannot censor student expression unless they can
reasonably forecast that the expression will cause a substantial disruption of
school activities or will invade the rights others.
Though
public school students possess the right to free speech, they are not free to
express themselves in an unlimited form or fashion. In 1986, the Supreme Court
ruled in BethelSchool District No. 403 v. Fraser that school officials did not violate the
First Amendment rights of a student suspended for giving a vulgar and lewd (i.e. sexually suggestive) speech before
the student assembly.
Clothing, dress codes & uniforms:
Students
often communicate through their clothing. But more and more schools are
regulating what students may wear through dress-code and uniform policies.
Proponents argue that they increase student attendance, instill discipline and
ensure positive attitudes toward authority. They also say dress codes and
uniforms make schools safer by making it easier to identify school visitors and
intruders. Others contend uniforms reduce the peer pressure associated with
wearing expensive clothes.
Those
opposed to uniforms contend that they threaten students’ free-expression rights
and parents’ liberty interests in rearing their children free from government
intrusion. They also argue that dress codes and especially uniforms discourage
individuality and critical thinking. The courts are divided in how they analyze
dress codes, though the general trend has been to side with school districts. Teacher’s note: There has been no case
brought before the Supreme Court regarding school uniforms yet, so this issue
may be decided once and for all at a future date. For now, most lower courts
have agreed with schools and have allowed them to enforce uniform policies.
Underground newspapers & off-campus
speech:
Students
generally may distribute their underground newspapers at school as long as they
do not create a substantial disruption of school activities. School officials,
however, can enforce reasonable regulations with respect to the time, place and
manner of distribution. School officials have even less authority to regulate
off-campus speech — particularly if that expression is never distributed at the
school.
Cyberspeech:
Many
students have turned to the Internet to express a variety of viewpoints,
including criticism of school officials. The U.S. Supreme Court has said that
speech on the Internet is entitled to the highest level of protection on par
with (meaning: on the same level as) the
print medium.
Students
generally have broad freedom to express themselves on the Internet on their own
time, using their own off-campus computers. However, some school officials have
suspended students for their off-campus Internet postings that lampooned (meaning: made fun of in a mean way) or
criticized school officials or contained vulgar commentary. However, if a
student creates certain online expression as part of a class or even using a
school computer outside of class time, then school officials will argue that
the speech is in fact school-sponsored and therefore subject to less
protection.
Hate speech and speech codes:
Some
school officials have implemented speech codes, arguing that they help to
ensure a safe learning environment by prohibiting students from engaging in
harassing speech or so-called hate speech.
Sometimes
it isn’t students’ speech but their choice of symbols that is interpreted by
school officials as harassing or hateful. There is perhaps no symbol more controversial
in the public schools than the Confederate flag, which supporters say is merely
a symbol of heritage, but critics charge is a symbol of hate. Many students
have been suspended for wearing such garb or even for drawing pictures of the
flag in class.
Pledge of Allegiance:
In
the aftermath of the Sept. 11, 2001, terrorist attacks, a resurgence of
patriotism has swept the nation. Public schools have helped fuel this patriotic
zeal by requiring students to recite the Pledge of Allegiance.
After
the attacks, school officials in Georgia suspended two high school students for
failing to stand during the Pledge of Allegiance. The court reasoned that the First
Amendment free-speech clause included the right not to speak.
Other Things You Should Know:
There is a “clear and present
danger” test applied to determine whether or not the statement you are about to
make is protected by the First Amendment. The famous example of this is that
you aren’t allowed to yell “fire!” in a crowded theater if there is no fire. If
you did, you might start a stampede towards the exits and people might get very
hurt. Their rights to personal safety are greater than your right to say
whatever you want.
You are, in effect, allowed by the
First Amendment to say WHATEVER you want. However, the First Amendment limits
WHEN and WHERE you can say it. In the aforementioned example, you could be
jailed for screaming “fire!” (what)
in a crowded theater (where), but if
you were the only person in the building you could scream it all you want (where/when). You are allowed to wear a
t-shirt with curse words on it (what)
in the street (where), but could be
suspended for wearing it to school (where).
You can protest WalMart’s employment policies (what) in the public park across from the store (where), but you are not allowed to
protest in the parking lot owned by WalMart (where).
The
First Amendment would say that teacher is allowed to give you detention for
saying “why do we have to do this? This is boring! I hate this class!” (what) in the middle of a lesson (when), but would probably protect you
from suspension if you said it to them in private (when) in a respectful manner (again: your rights to freedom of
speech are less valid than your classmates’ rights to an education). The
Supreme Court says you have the right to write an article in the school
newspaper saying you don’t like your school’s uniform policy, or stand up and
make a speech to student council, or make an appointment with the principal to
discuss your concerns. However, courts still give schools rights to enforce
their school clothing policies.
The First
Amendment protects your rights, as long as the action taken does not infringe
upon the rights of others.
Post: TAKE A STAND and BE PERSUASIVE!
Choose one of the following options:
- Respond to a question at the bottom of each AoW. Use text evidence to support your response.
- Reply (comment) to a teammate's response Summarize the argument made then add your own thoughts and evidence. Finally, post a question to keep the conversation going. Use text evidence to support your response.
Be mindful of the rubric: (Focus, Development, Reading, Organization, Conventions, Formatting)
RESPONSE QUESTION:
The First Amendment provides for freedom of expression. Should schools have a right to limit a student’s freedom?
