Censorship at the Schoolhouse Gates
In 1965, amid the national debate over the Vietnam War and in a time of general cultural unrest, five high school students in Iowa wore black armbands to school in protest of the war. All five students were suspended from school for violating a dress code that been hastily passed by the school district to prevent such a protest. These five students’ quiet demonstration led to the most important advancement of the communication rights of high school students.
The Supreme Court’s ruling in Tinker v. Des Moines assured students’ communication rights in the classroom. In 1969, Justice Abe Fortas delivered the powerful statement 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 Tinker decision has long been heralded as a landmark protection of student speech rights. It powerfully asserts that the purpose of education should be to teach students to thrive in a democracy; to speak, analyze, criticize and challenge authority.
Forty years later, despite Fortas’ commanding opinion, student expression has virtually no protection as the Supreme Court has layered the Tinker decision with exceptions to the rights of students to freely dissent in and around the classroom. The Supreme Court has used Tinker to support its reasoning in eleven other education cases, and in most it has found that students are not entitled to constitutional rights behind the schoolhouse gate. Fortas’ celebration of intellectual freedom has morphed into a litany of rights, not for students, but for those who would eliminate dissent in favor of discipline.
Any debate over freedom in the classroom has to balance the needs of the school to maintain order with the desires of students to challenge authority. Classrooms are often sites of struggle; as students attempt to test the boundaries of society, teachers and administrators seek to create an atmosphere that promotes restraint. At the core of the debate over student rights is the issue of power; who should have the right to speak, about what and when? The participants with interests in school speech rights are diverse; teachers, students, administrators, school boards, parents, local voters and legislators all have a stake in the educational endeavor. Although the rhetoric of education promises student-centered learning, in practice students are often the least important part of the educational equation. Students are may beviewed as objects that need to be both controlled and protected.
What then, is the status of student rights, particularly First Amendment rights? The Court has heard three cases subsequent to Tinker directly concerning what types of messages students may express. These three cases: Bethel School District v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick, severely limit the freedoms championed by Fortas’s judgment. In each of these decisions the Court found the balance between school discipline and student expression must tilt towards the needs of a school administration to maintain what it views as order.
In 1983, Matthew Fraser, a senior at Bethel High School, was sanctioned for giving a sexually suggestive speech in an open assembly in support of a candidate for student office. Also in 1983, a principal at Hazelwood High School censored stories on teen pregnancy and the effects of divorce on the children of the family. In 2002, Joseph Morse, a senior at Juneau Douglas High School displayed a banner with the slogan “BONG HiTS 4 JESUS” outside of the school as an Olympic Torch Run passed by. In each case, no actual disruption was recorded (although there was some twittering at Fraser’s use of double entendre), but the majority opinion in each case clearly upheld the schools’ silencing of these students.
Certainly, speech dealing with sex and drugs has the potential to severely disrupt the educational process and students should not be given unlimited permission to speak. However, the Court’s reasoning favors absolute control of student speech. In each of these rulings, Fortas’s argument that students do not lose their constitutional rights simply because they cross a threshold into an educational environment is cited, and in each instance is limited by the circumstances of the decision. To an outside observer, it would seem there is no reason for student expression to be protected; the Court, despite passionate dissents in each instance, found little justification for promoting student speech.
The Court has expanded its reasoning about the application of the Tinker ruling to a set of decisions concerning students’ Fourth Amendment rights to be free of unreasonable search and seizure. Three cases, New Jersey v. TLO, Veronia School District v. Acton, and Pottawatomie City. v. Earls, decidedly limit the rights of students in regard to drug testing. In each of these rulings, the Court has determined that student rights are subordinate to the needs of the school to provide a drug free environment. Despite Sandra Day O’Connor’s opinion in two of these cases that the Court’s thinking provided students fewer rights than prisoners, the trend in the Court most clearly is to side with the needs of administrators.
So, what is the future for students’ expressive rights? As communication technology evolves, students, teachers, and school administrators are finding new battlegrounds both inside and outside the schoolhouse gates. What of students, such as Avery Donninger, who criticized an administrative action on her live journal blog and was punished for disrupting the school environment? One might argue that the voice of the Supreme Court seems to say to these students “sit down, shut up and do not, under any circumstances, challenge anything.”