Editor’s note: This article was adapted from a presentation delivered at the National Law-Related Education Conference, on October 20, 2018, in Chicago. The theme of the conference was “Free Speech Today.”
I think of two vital institutions in American society—the public school and the U.S. Supreme Court. It is difficult to understand the one if you don't understand the other. That is to say, it's impossible to understand public schools if you don't know the background of constitutional rights that have shaped the nation's public schools. Students have, of course, free speech rights. There are rights involving due process. There are criminal procedure rights. There are equal protection rights at issue. Of course, there are free exercise and Establishment clause concerns involving religion in the public schools. And each of these areas takes a particular form in the public school that are different than exist for minors when they are in public parks across the street after school. We want to understand these things and think about how the school is a legal entity. That is how you have to think about the public school being informed by the Constitution.
It is also my contention that you can't really understand the Supreme Court unless you pay attention to the cases involving education. I think they offer a particularly vivid snapshot of the Supreme Court's capacity for shaping the nation's public schools in positive ways, as well as American society. And I think that offers an overly anemic conception of the Supreme Court's capacity for shaping American society.
Let me give you examples from the non-free speech context in order to illuminate how this works. There is a Supreme Court case from 1982 called Plyler v. Doe. This is a case that involved a Texas statute that sought to exclude unauthorized immigrants from public school. And the Supreme Court, in a 5-4 decision, said that is unconstitutional. Some of my colleagues in the Academy argue that Texas statute the decision rendered unconstitutional really wasn't that important. Texas was the only state in the nation that had such a statute at that time. Therefore, it was just getting rid of an outlier. In my view, that is not a credible view of that case. Had the Supreme Court not invalidated that measure and nipped it in the bud, there's no doubt but that it would have been adopted in many other states across the country. Indeed, Alabama enacted a measure that was invalidated by a lower court. And California adopted a similar measure that was also invalidated by a lower court. We know today very well that anxieties about unauthorized immigrants are far from confined to the border. Indeed, there is polling data that suggests that a majority of Americans believe that those laws should be constitutional. I believe that decision is responsible for allowing millions of people to expand their minds and horizons and make valuable contributions to American society.
A second example of a similar phenomenon at work is a lesser-known case called Stone v. Graham (1980). There, Kentucky wished to have the Ten Commandments posted in every classroom in the state. The Supreme Court of the United States invalidated that measure, said it's a violation of the Establishment Clause. Again, Kentucky was the only state in the nation that had such a measure, but there's no doubt that the appeal of such a statute would have extended beyond the state of Kentucky.
I'm going to talk about the free speech in public schools squarely. Specifically, I'm going to talk about five cases from the Supreme Court, and then I'll close out by speaking about the pressing issues that I see in this area.
West Virginia v. Barnette (1943)
This was a really important case. West Virginia, along with many other areas, sought to require all students to pledge allegiance to the United States. Jehovah's Witnesses, in particular, said that they wished not to do so because it violated their free exercise rights. They viewed it as a violation of their beliefs. There's a prohibition about worshipping graven images, and they regarded this as requiring them to violate their faith. The U.S. Supreme Court upheld such a provision in 1940 in a decision called Minersville School District v. Gobitis, but in 1943, the Court invalidated these sorts of measures.
It was an incredibly important opinion by Justice Robert Jackson, maybe the most eloquent opinion in the history of the Supreme Court of the United States. In this opinion, he reconceptualized the right at issue from being about the freedom of religion, free exercise of religion, and instead suggested we needed to view this as a free speech case. He says that the freedom of speech involves a corollary right: the right not to speak. This statute, in effect, compelled people to speak. And this is an important opinion for our purposes because Justice Jackson said that public schools are particularly important places to honor constitutional rights, because if we discount them, we will teach the youth to disregard constitutional principles as mere platitudes. He said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
In effect, he's saying that was un-American to say that people have to pledge allegiance to the United States. It's a marvelous opinion. That's the first real instance where the Supreme Court honored students' constitutional rights within the nation's public schools. It was an open question at the time as to whether this violated the Constitution. At the time of Gobitis, in 1940, schools in 15 different states were expelling students. By the time of Barnette, in 1943, schools in all 48 states were expelling Jehovah's Witnesses. This is an opinion that I believe protected minority rights and resisted the majoritarian sentiment, especially at the height of World War II. You have to imagine that many people would have disliked this opinion intensely.
Tinker v. Des Moines (1969)
Flash forward two decades to the single-most important decision in this area, and that of course, is Tinker v. Des Moines Independent Community Schools. The facts of Tinker arose in 1965, and the decision came down another four years later. That was important because the facts in 1965 were quite distinct from when the Supreme Court ultimately issued an opinion.
In December of 1965 there were students in Des Moines, Iowa who wished to wear black armbands in protest of the Vietnam War. School officials got wind of this plan and they said no. This is an incredibly hot button issue. There was a student who was a graduate of Des Moines High School who died in Vietnam. His classmates were still in this school. School officials reasoned that if they permitted students to wear black armbands, his former classmates would view that as being disrespectful to his sacrifice. Thus the Tinkers were prohibited from returning to Des Moines schools until they agreed to take off the black armbands. Mary Beth Tinker was just 13 years old.
And one of the things that was important for me is to shine a light on the incredible sacrifices and, indeed, courage that's demonstrated by students when they are trying to vindicate their constitutional rights. They are oftentimes standing up against, not only their schools, but also their surrounding communities. The Tinkers’ front door was splattered with red paint. The evident implication was that only a communist would oppose the Vietnam War. They received harassing phone calls and letters saying, “you're raising these children to be terrible members of society” and “shame on you.” So, it really did require tremendous courage to take this all the way to the Supreme Court of the United States.
In 1969, Justice Abe Fortas wrote the opinion for the Court, and it was significant. This opinion was different from the Barnette decision because, in effect, Barnette only acknowledged the right not to speak. Here, we're thinking about whether students have the affirmative ability to be able to introduce their own ideas into the school setting. He said:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.
This is really striking language and strong language. This opinion was not unanimous. To the contrary, Justice Hugo Black issued a vehement dissent. He spoke for more than 20 minutes from the bench that day. He said, during the course of this 20-minute denunciation of the Supreme Court's opinion and Tinker: “I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.”
At the time people were very concerned about the youth and protests in our society. And Justice Black was so sort of frothing at the mouth that some of his colleagues found it remarkable, even by Supreme Court standards. Some people have said that what made Black so angry was a matter from his personal life. He had a grandson, named Sterling, who wrote an underground newspaper, and it was quite critical of school administrators. Young Sterling was suspended. There's evidence that Justice Black wrote a letter to his daughter-in-law saying the school did exactly the right thing. This happened roughly contemporaneously with the oral argument and the conference where the justices got together to decide Tinker. But to view Black's statement as merely one grandfather's fit of pique, just sort of a cranky old man, doesn't do justice to the deep wellspring of anxiety that Justice Black was tapping into. There was polling data that existed at the time that I found that suggests that Justice Black spoke for far more Americans than Justice Fortas did. Many people believed, at the time, that students were there to learn, not to teach, and thought it an outrage that they should have any free speech rights whatsoever.
Fraser v. Bethel School District (1986)
This was a case where a student gave a long nominating speech for his buddy to the student council. The speech was laced with sexual innuendo. He wrote it in such a way, he said, to appeal to his fellow students who were all listening. And this kid won—the candidate that Fraser supported—won. Matthew Fraser figured that he must have done something right. Instead, he was suspended for this speech and prohibited from being able to speak at the graduation ceremony.
This was the first of what, in effect, we can regard as three exceptions to the Tinker regime. Chief Justice Warren Burger wrote the opinion in a quite confused way. I should step back for a moment to say what the rule was in Tinker.
The rule that emerged from Tinker was that if there is a reasonable forecast of a substantial disruption, then it is permissible to discipline students for speech. I think that was an important decision, a real step forward, and a valuable intervention. In this case, Fraser spoke at a student assembly. There was some hooting and hollering during the speech, but it would be difficult—indeed, impossible—to say that this caused substantial disruption because people hooting and hollering at student gatherings, assemblies, that's what they do, right?
The Court, instead of saying this caused a disruption or it was foreseeable that this speech would have caused a disruption, said that this was explicit speech, and used all sorts of relatively confusing language in this front. If a student is speaking in a lewd way, then it's permissible to discipline the student for that speech. Interestingly, the subsequent disciplining of Fraser over the speech led to a real backlash. Some of the students had signs that supported Matthew Fraser, and used sexual innuendo in order to try to suggest that the school acted too harshly. “Don't be hard on Matt,” for example.
It is worth noting that the famously prudish New York Times printed the speech in its entirety. It is also true, and importantly for our purposes, that the student newspaper also printed the speech in its entirety. So, if you have some doubts about how upsetting this actually was, I think I share those doubts with you.
Hazelwood v. Kuhlmeier (1988)
This is one involving student journalists. The facts of the case are really remarkable. There was a school newspaper in Missouri where students wrote articles and, as a matter of course, they would offer the draft of the school newspaper to the principal, who would review it. After doing this for the next issue, the draft was returned, and the students realized that two entire pages of the six-page edition had been excised. The principal didn't tell them about this in advance and, instead, he just removed the two pages and said there wasn't enough time for a lot of back and forth.
There were two articles that attracted his attention and, indeed, his concern, and maybe even his ire—things that he thought would have been inappropriate for a school newspaper. The first article spoke about the issue of divorce, where there was a particular quotation from a student suggesting “my parents got divorced because my dad was playing cards with the guys all the time and he was never home, and my mom just had enough.” The principal thought that was an unfair quote, and perhaps, bad journalism, because the student in question was named and they should have at least gone to the father in order to get some sort of response. Was he actually playing cards all the time? The second article involved young women who got pregnant and delivered children. There had been an effort to anonymize the young women, but the principal found that was ineffective because there were, in effect, distinguishing details that would have revealed their identities.
In my view, this principal, displayed spectacular ineptitude by simply removing the articles altogether when there were other possible solutions. These issues were so important for student newspapers at that time. If these were not being covered in a student newspaper, what could be more important? In one, Cathy Kuhlmeier revealed that she thought her parents' divorce was her fault and realized that was not the case. This was the 1980s, a time when divorce and teen pregnancy were really surging. To be able to offer a sense of community for people who were going through that in their lives couldn't be more important, in my view.
Nevertheless, I think that it was correct, as a constitutional decision, to say that this did not violate the First Amendment. It's important keep in mind that just because something is unwise and even foolish does not mean that it's unconstitutional. The Court wrote a sort of convoluted opinion here, but basically suggested that this was government speech. It's the basic idea that the government can decide what it wants to say on a particular topic. When a document has the school's insignia and the school's imprimatur on it, the school gets to be able to say what it wishes to say.
There were several states around the nation that in reaction to this decision, passed legislation that offered more protection to student journalists. With this decision the Supreme Court was articulating a constitutional floor below which entities cannot fall. There's nothing that prohibits school boards or legislatures from offering more protection above that constitutional floor.
Morse v. Frederick (2007)
For the facts of this case, we're in Juneau, Alaska in 2002. There was a parade outside of a school in honor of the 2002 Winter Olympic torch relay that was making its way through the city. Joseph Frederick, an 18-year-old senior, decided unfurled a banner that says “Bong Hits 4 Jesus.” The principal saw this banner across the street from the school, marched right over, snatched it out of his hand, and suspended him.
Chief Justice Roberts wrote a highly unusual opinion for the court. The rule that he articulated was if the principal believed that speech is designed to promote illegal drug use, then it's permissible to punish the student for that speech. That is incredibly unusual from a First Amendment perspective because the hallmark of the First Amendment is the requirement of viewpoint neutrality—you can't silence one side of the debate.
Joseph Frederick made a mistake, in my view, in how he sought to frame what he was trying to do with his message. What does “Bong Hits 4 Jesus” actually mean? He said lots of things, including, "I was trying to attract the attention of television cameras." It would have been much wiser for Joseph Frederick to say that he wished to enter a debate about the legality of marijuana, to make it more political speech. It would have been more difficult to disrespect that speech in the way that Chief Justice Roberts' opinion did.
Justice Clarence Thomas wrote a remarkable opinion in this decision. Justice Thomas is an originalist, and he pined for the “good old days” when teachers commanded and students obeyed:
In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students.
He very much resurrected Justice Black's dissenting opinion in Tinker and said Justice Black had it exactly right: “Justice Black may not have been ‘a prophet or the son of a prophet,’ but his dissent in Tinker has proved prophetic. In the name of the First Amendment, Tinker has undermined the traditional authority of teachers to maintain order in public schools.”
Justice Stevens wrote a really terrific dissenting opinion. In one of the most powerful passages, he thinks back to his own youth when he can remember Prohibition:
…our antimarijuana laws in particular, [are] reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as Prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.
Now, from the vantage point of 2018, Justice Stevens' seems only more prescient about the way that marijuana has been legalized in several jurisdictions.
One area to keep an eye on along the frontier of constitutional law in public schools is that of religious speech. There's a case out of Texas involving cheerleaders who want to be able to have religious scripture on a banner that students run through at events. There are also issues concerning student speech on the internet. One is out of the Second Circuit involving a person named Avery Doninger, who wrote a blog and was punished by her school for her blog posts. The Second Circuit found that that did not violate her free speech rights even though this is something that she didn't say at school.
An area that the Supreme Court has not gotten involved in yet involves dress codes and school uniforms. A lot of them are very vague. They have language that says you can't wear anything too “baggy” or too “form-fitting.” It's very unusual, outside of the military or the prison context, to be able to tell people what they can put on their bodies in a free and democratic society, including restrictions on allowing students to wear T-shirts.
One judge out of the Seventh Circuit, Judge Ilana Rovner, wrote a magnificent opinion on this matter that could serve as a takeaway:
Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the Civil Rights Movement, the Women's Rights movement, the antiwar protests for Vietnam and Iraq and the 2008 presidential primaries. The young adult to whom the majority refers as kids and children are either already eligible or a few short years away from being eligible to vote, to contract, to marry, to serve in the military and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy is contrary to the values of the First Amendment.
Justin Driver is a professor at the University of the Chicago Law School and author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.