STOP WITH THE EXCEPTIONS: A NARROW
INTERPRETATION OF TINKER FOR ALL
STUDENT SPEECH CLAIMS
Matthew Sheffield*
INTRODUCTION ..............................................
I.
175
TINKER v. DES MOINES INDEPENDENT SCHOOL
D ISTRICT ............................................
177
184
191
II. LOWER COURT DECISIONS AFTER TINKER ............
III. BETHEL ScHooL DISTRICT V. FRASER .................
IV. HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER ....... .196
202
V. MORSE V. FREDERICK ................................
VI. STUDENT SPEECH AFTER MORSE V. FREDERICK ....... .206
CONCLUSION...
..............................................
214
INTRODUCTION
For current law school students, the thought of being hit with a
ruler or a paddle for misbehaving while in public school seems offensive
and anachronistic. This, after all, was not the public school environment in which these students matured. However, for generations in the
not too distant past, corporal punishment as school discipline was a
widely accepted reality.' Apart from corporal punishment, any student
speech or conduct with which school authorities disagreed was strictly
controlled, and any offending student was disciplined. 2 The general belief was that school authorities acted as substitute parents, or in loco
parentis, when students were in their care; thus school authorities had
wide latitude to maintain order and discipline within the school. 3
* Candidate for J.D., 2012, Benjamin N. Cardozo School of Law. I would like to thank
Professor Michelle Adams for her invaluable assistance throughout the development of this
Note, everyone on the journal whose efforts contributed to the final product of this Note, and
my parents for their continued support and encouragement.
1 Boyd v. State, 7 So. 268 (Ala. 1890). "It may be laid down as a general rule that teachers
exceed the limits of their authority when they cause lasting mischief, but act within the limits of
it when they inflict temporary pain." Id. at 269 (citing State v. Pendergrass, 19 N.C. 365
(1837)).
2 State ex rel. Dresser v. Dist. Bd. of Sch. Dist., 116 N.W. 232 (Wis. 1908) (upholding the
expulsion of students as appropriate punishment when a local newspaper published a parody of
the school rules given to them by the students).
3 Morse v. Frederick, 551 U.S. 393, 413 (2007) (Thomas, J., concurring).
175
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[Vol. 10:175
As time progressed, these attitudes slowly began to change. The
first substantial victory for students' rights in public schools was West
Virginia State Board of Education v. Barnette, in which the United
States Supreme Court held that public school students could not be
punished for refusing to recite the Pledge of Allegiance.5 After Barnette,
the Court did not consider another case involving student speech until
Tinker v. Des Moines Independent School District,6 in which the Court
held the school district could not prevent students from wearing armbands in protest of the Vietnam War.7 The Tinker decision has been
treated by many as the high water mark for the First Amendment rights
of students in public schools.' Accordingly, the subsequent Supreme
Court decisions on the issue of students' free speech rights in public
schools, each of which found for the respective school district,9 are
treated as substantial retreats from the First Amendment protections
that students received under the Tinker decision."o
4 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). The plaintiffs in Barnette
were Jehovah's Witnesses who objected to being forced to recite the pledge on religious grounds.
Id. at 629. However, the Court's opinion did not limit its acceptance of the right to refuse to
recite the Pledge of Allegiance to only those with religious objections, but to any student regardless of reason. Id. at 634-35.
5 Id. at 642.
6 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969).
7 Id at 514.
8 See Kellie A. Cairns, Morse v. Frederick: Evaluating a Supreme Hit to Students' First
Amendment Rights, 29 PACE L. REv. 151, 151 (2008) (calling the Tinker decision a "celebrated
declaration of students' speech rights"); see alo Marshall H. Tanick & Philip J. Trobaugh, From
Tinker to Bong: The School Bell Tolls for Students'Rights, 64 BENCH & B. MINN. 18, 19 (2007)
(calling Tinker "a landmark case for students' rights"); Heather K. Lloyd, Injustice in our Schools:
Students' Free Speech Rights are Not Being Vigilantly Protected, 21 N. ILL. U. L. REv. 265, 269
(2001) ("The Tinker decision demonstrated that the Court highly valued the First Amendment
rights of students and believed that they should not be lightly denied.").
9 See Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); see also Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007).
10 See Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: What's Left of Tinker?, 48 DRAKE L. REv. 527, 546 (2000).
Justice Black's dissent in Tinker is an angry polemic against according students
First Amendment rights. Unfortunately, his position and not that of the seven Justices in the majority seems to have triumphed. Simply put, thirty years after Tinker,
students do leave most of their First Amendment rights at the schoolhouse gate.
Id. See also Lloyd, supra note 8, at 306 ("[While the justices deciding Hazelwood and Fraser
were unwilling to admit it, the Court did overrule the [substantial disruption] standard set in
Tinker."); Edward T. Ramey, Student Expression: The Legacy ofTinker in the Wake of Columbine,
77 DENv. U. L. REv. 699, 709 (2000) ("Frasercertainly embodies the judicial approach potentially most dangerous from a civil liberties perspective and most demeaning to students and
contemptuous of young people in general.").
STOP WITH THE EXCEPTIONS
2011]
177
However, this Note will argue, to the contrary, that each of the
Supreme Court decisions in the area of students' free speech rights after
Tinker was correctly decided and is consistent with the guidelines the
Court set forth in Tinker. The majority of scholarship in this area arrives at its conclusion by misconstruing Tinker as much broader, and
therefore encompassing considerably more student speech within its
strong protective framework than was ever intended by the Court. This
Note will discuss how Tinker was meant to apply to only two areas of
student speech: (1) when the student was expressing an opinion on an
issue of political significance or (2) when the school was discriminating
against the student solely based upon disagreement with the student's
viewpoint. This Note will then examine the decisions of the U.S.
Courts of Appeals in the time period from the Supreme Court's decision
in Tinker to the Supreme Court's decision in Bethel School District v.
Fraser." This examination will reveal that when the students prevailed,
most of their cases fit within one of the two rationales set forth in
Tinker. It will further reveal that the Court of Appeals for the Ninth
Circuit's decision in Fraser v. Bethel School Districtl2 was reversed, as it
was arguably the broadest interpretation of Tinker that had been advanced by a lower court.' 3 This Note will then explore the Court's
decisions in Hazelwood School District v. Kuhlmeier'" and Morse v. Frederick"5 and demonstrate why the results are consistent with Tinker. Finally, the Note will apply the intended, more limited reach of Tinker's
standard to lower court decisions after Morse to examine what should
have been their correct result under this standard.
I.
TINKER v. DES MOINES INDEPENDENT ScHooL DISTRICT
In 1969, the Supreme Court held that public school students had a
constitutional right to express their opposition to the Vietnam War.'"
Petitioner Mary Beth Tinker and two others wanted to wear black armbands to demonstrate their opposition to the ongoing conflict in Vietnam. 7 The school authorities became aware of the students' plan prior
to its execution and passed a school policy that any student seen wearing
11
12
Bethel Sch. Dist. v. Fraser, 478 U.S. at 675.
Fraser v. Bethel Sch. Dist., 755 F.2d 1356 (9th Cir. 1985), rev'd 478 U.S. 675 (1986).
13
See infra Part II.
14
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
Morse v. Frederick, 551 U.S. 393 (2007).
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969).
Id. at 504.
15
16
17
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[Vol. 10:175
an armband would be asked to remove it.5 " The students were aware
that failure to comply with the policy would result in indefinite suspension until they agreed to no longer wear the armbands at school. 9 They
wore their armbands to school in spite of the policy and, after refusing
to remove them, were suspended from school.20 They stayed home for
more than two weeks, until the period in which they had planned to
wear the armbands concluded. 2 ' The students brought suit against the
school under 42 U.S.C. § 1983,22 seeking an injunction preventing the
school from disciplining them, as well as nominal damages. 2 3
The Supreme Court, in an opinion by Justice Fortas, ruled in favor
of the students.2 4 The Court stated, in Tinker's most famous line, "it
can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse
gate." 2 5 While certainly a memorable line, many often erroneously refer
to Justice Fortas's proclamation as if it were the underlying holding in
the case. 2 6 However, in reality, Justice Fortas's great proclamation is
nothing more than a grand rhetorical flourish that is nevertheless dictum. This is the central misunderstanding of the Tinker opinion, made
by those who rely on the Court's broad proclamations as the opinion's
holding. In actuality, the Court's holding in the case is based on much
18
Id.
19 Id
Id
Id
22 The statute states in relevant part:
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (2006).
23 Tinker, 393 U.S. at 504.
20
21
24 Id. at 514.
25 Id. at 506.
26 Martha McCarthy, Student Expression Rights: Is a New Standard on the Horizon?, 216
EDuc. L. REP. 15, 16 (2007) ("Tinker established that students do not shed their constitutional
rights when they enter a public school, and they may not be confined to the expression of those
sentiments that are officially approved."); Justin T. Peterson, Comment, SchoolAuthority v. Students' FirstAmendment Rights: Is Subjectivity Strangling the Free Mind at its Source?, 2005 MICH.
ST. L. REv. 931, 933 (2005) (stating that the Supreme Court "held [in Tinker] that students do
not shed their constitutional rights when they enter school grounds . . . ."). This is not to say
that those who view Tinker broadly deny that proscribing student speech that substantially disrupts school affairs or invades the rights of others is constitutional.
2011]1
STOP WITH THE EXCEPTIONS
179
narrower grounds. A close examination of the majority opinion supports this interpretation.
The Court's majority opinion in Tinker seems almost schizophrenic, as it shifts from a narrow holding based on the facts of the case,
to making broad proclamations about First Amendment rights. After a
brief recitation of the facts, the Court began, in Part I of its opinion, by
finding the armbands to be "closely akin to 'pure speech.'" 2 7 Since the
armbands were a recognized symbol of opposition to the war, the wearing of the armbands was the functional equivalent of the students' verbal expression of their political viewpoints.28 Pure speech is generally
given extensive protection under the First Amendment.2 9 Justice Fortas
then stated his most famous line, while being mindful that students'
First Amendment rights are at least applied in light of the special characteristics of the school environment.30 The Court then examined its
precedents in which students have prevailed in suits against their
schools.3 Finally, the Court stressed that even in cases in which the
students prevailed on their constitutional claims, the Court had always
"emphasized 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." 32
In Part II of its opinion, after noting once again that the school
was interfering with primary First Amendment rights that were akin to
27
Tinker, 393 U.S. at 505.
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 588 n.5 (1980) (Brennan, J.,
concurring) ("Some behavior is so intimately connected with expression that for practical purposes it partakes of the same transcendental constitutional value as pure speech.").
29 See Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (stating that speech critical
of governmental action is pure speech that lies at the very heart of the First Amendment); see also
Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir. 2010) (stating that pure
speech is entitled to First Amendment protection unless it falls within one of the categories of
speech fully outside of First Amendment protection).
30 Tinker, 393 U.S. at 506.
31 Id at 506-07; see Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that the Due Process
Clause of the Fourteenth Amendment prevents states from forbidding the teaching of a foreign
language to young students); see also Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934)
(holding that merely requiring a student to participate in school training in military "science"
could not conflict with his constitutionally protected freedom of conscience); W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624 (1943) (holding that public school students have a First
Amendment right not to say the Pledge of Allegiance). The Court in Tinker was quick to
caution that in Hamilton, the Court did not establish that the State may "impose and enforce
any conditions that it chooses upon attendance at public institutions of learning, however violative they may be of fundamental constitutional guarantees." Tinker, 393 U.S. at 507 n.2.
32 Tinker, 393 U.S. at 507.
28
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free speech, 3 3 the Court examined whether wearing the armbands had
interfered with school affairs. It found that no disruption had
occurred.
Only a few of the 18,000 students in the school system wore the black
armbands. Only five students were suspended for wearing them. There
is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks
to the children wearing armbands, but there were no threats or acts of
violence on school premises. 35
The analysis regarding whether the students' speech interfered with
school affairs became known as the "substantial disruption test." 36
The Court then proceeded to examine the school's reasons for banning the armbands. 3 7 The Court indicated that school officials can censor speech based upon an anticipation of a substantial disruption, if that
anticipation is warranted.3 8 However, an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freeThe school officials claimed the armbands posed
dom of expression. "
a threat of disruption because of the following: (1) a former student,
who had friends still attending the high school, was killed in Vietnam;
and (2) students now expressed a desire to wear armbands of other colors. 40 In spite of these proffered justifications, the Court concluded "the
action of the school authorities appears to have been based upon an
urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this
Nation's part in the conflagration in Vietnam."" After all, school offiId. at 508.
Id
35 Id.
33
34
See Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 746 (5th Cir. 2009), cert. denied,
130 S. Ct. 3503 (2010) (referring to Tinker as setting forth the "substantial disruption" test); see
also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d Cir. 2001) (referring to Tinker as
setting forth the "substantial disruption" test).
37 Tinker, 393 U.S. at 509.
36
Id
39 Id. at 508.
38
40
41
Id. at 509 n.3.
Id. at 510.
[T]he testimony of school authorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands; and regulation was directed against 'the principle of the demonstration' itself. School authorities simply
2011]
STOP WITH THE EXCEPTIONS
181
cials allowed students to wear other attire that expressed various points
of view on political issues, including campaign buttons and even the
Iron Cross, a symbol sometimes associated with Nazism.4 2 Therefore,
the Court concluded the school officials were discriminating on the basis of viewpoint; "the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline, is not constitutionally permissible."4 3
At this point, the Court's language became much broader as it deviated from a discussion of the specific facts of Tinker towards more
generalized proclamations. The Court stated that
[s] tate-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 . . . . In our system, students may not be regarded as
closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific
showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. 44
While equating the actions of school officials in Tinker with totalitarianism certainly seems like a stretch, the logical reading of this passage is that students are on equal footing with adults in regards to
constitutional rights in all respects, even when the students are in
school. However, as Justice Stewart noted in his concurring opinion in
Tinker,". just one term earlier the Court stated, "the power of the state
felt that 'the schools are no place for demonstrations,' and if the students 'didn't like
the way our elected officials were handling things, it should be handled with the ballot
box and not in the halls of our public schools.'
Id at 509 n.3. The armband regulation was also enacted after a student had expressed a desire
to his journalism teacher to write an article for the school newspaper on the war in Vietnam. Id.
at 510.
42
43
44
45
Id
Id at 511.
Id
Id at 515 (Stewart,
J.,
concurring).
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[Vol. 10:175
to control the conduct of children reaches beyond the scope of its authority over adults." 6
The Court next noted a compelling need to protect the constitutional rights of students in schools:
The vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools. The classroom is peculiarly the "marketplace of ideas." The Nation's future
depends upon leaders trained through wide exposure to that robust
exchange of ideas which discovers truth 'out of a multitude of tongues,
[rather] than through any kind of authoritative selection.'
Admittedly, this passage can be read quite broadly. However, reading it so broadly as to undermine the Court's narrow reasons for finding
in favor of the students seems to be asking this passage to stand for too
much. Instead, the passage merely reinforces the Court's earlier justifications for its holding. To fulfill their role in educating the nation's
next generation of citizens, it is imperative for school officials to allow
students to express themselves on political issues and to not censor viewpoints with which the school disagrees. Furthermore, in an attempt to
limit the reach of its language, the Court quickly reiterated, "conduct by
the student, in class or out of it, which for any reason . . . materially
disrupts classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech."4
The Court lastly discussed the need for the right of free speech to
be interpreted in a way so as not to permit the right to only "exist[] in
principle[,] but not in fact,"" while repeating that the right still "permit[s] reasonable regulation of speech-connected activities in carefully
restricted circumstances." 0 This discussion is also entirely consistent
with the Court's narrow holding. Sanctioning the actions of the school
officials in Tinker would permit the censorship of a political view because of disagreement with that view. Allowing the armbands to be
46 Ginsberg v. New York, 390 U.S. 629 (1968) (upholding a New York statute prohibiting
the sale of obscene material to minors).
47 Tinker, 393 U.S. at 512 (alteration in original) (citation omitted) (quoting Keyishian v.
Bd. of Regents, 385 U.S. 589 (1967)).
48 Id. at 513.
49 Id.
50 Id
2011]
STOP WITH THE EXCEPTIONS
183
banned would have effectively meant the free speech right of students in
schools exists in principle, but not in fact.
To conclude its opinion, the Court returned to the specific facts of
Tinker." The Court reiterated that banning the armbands was the
equivalent of banning verbal expression of opposition to the war in Vietnam and emphasized the inability of the school to show any sort of
disruption as a result of the armbands:
[The students] wore [the armbands] to exhibit their disapproval of the
Vietnam hostilities and their advocacy of a truce, to make their views
known, and, by their example, to influence others to adopt them.
They neither interrupted school activities nor sought to intrude in the
school affairs or the lives of others . . . . In the circumstances, our
Constitution does not permit officials of the State to deny their form
of expression. 52
Thus, in spite of what is at times broad language in the majority
opinion, the students prevailed in Tinker because: (1) they were expressing a political opinion, arguably the most fundamental part of the free
speech right, and (2) the school was discriminating against them on the
basis of their viewpoint because it allowed other attire of political significance to be worn.
Nevertheless, had the school district been able to show that the
armbands posed a substantial disruption to school activities or interfered
with the rights of other students, the school district would have prevailed regardless of whether the speech was political or was discriminated against on the basis of its viewpoint. This is hardly the radical
holding portrayed by Justice Black's dissent53 or the carte blanche for
student speech rights as many of Tinker's biggest champions argue the
51 Id. at 514.
52
Id
Id. at 525 (Black, J., dissenting).
This case, therefore, wholly without constitutional reasons in my judgment, subjects
all the public schools in the country to the whims and caprices of their loudestmouthed, but maybe not their brightest, students. I, for one, am not fully persuaded
that school pupils are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school systems in our 50 States. 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.
53
Id.
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10:175
[Vol.
case was meant to be." After all, Justice Harlan, though in dissent on
the set of facts present in Tinker, believed there was no difference between his opinion and the majority's that "school officials should be
accorded the widest authority in maintaining discipline and good order
in their institutions." 5
II.
LOWER COURT DECISIONs AFTER TINKER
Without a doubt, Tinker set forth a new standard that lower courts
would be required to apply when deciding any student speech claim. A
student now had a right to free speech in school, at least in certain
circumstances, unless the school could demonstrate his speech posed a
risk of substantial disruption or invaded the rights of others. Under this
new standard, did students now regularly prevail in their free speech
claims against school officials? Were the principles of Tinker subsequently extended further and further by the lower courts to cover new
areas? The subsequent case law indicates results to the contrary.
Examining forty-nine decisions by U.S. Courts of Appeals from
the date of the Tinker decision to the date of the Fraserdecision reveals
that the plaintiff students prevailed in twenty-seven cases and the defendant school districts prevailed in twenty-two. 6 While this may indicate
that the Courts of Appeals interpreted Tinker quite broadly, a closer
examination indicates that most of the cases in which the students prevailed were not dramatic extensions of Tinker. 7
54 See McCarthy, supra note 26, at 15 (referring to Tinker as a magna carta for students' free
speech rights); see also Cairns,supra note 8, at 154 ("In setting forth such an expansive holding,
the Court advocated the utmost protection of a student's free speech rights, even within the
school setting.").
55 Tinker, 393 U.S. at 526 (Harlan, J., dissenting).
56 This conclusion was reached by examining U.S. Courts of Appeals decisions between the
dates of the Supreme Court's decisions in Tinker and Fraser. This Note only examined U.S.
Courts of Appeals decisions that discussed Tinker in considerable depth and those cases that
Westlaw gave a three or four rating for depth of treatment for their discussion and application of
Tinker to the relevant facts. This filter produced eighty-three decisions, but this Note's final
numbers only take into account claims brought by students against their elementary school, high
school, or university for violations of their free speech rights. All other cases that did not meet
this test were excluded, thus reducing the final tally of cases to forty-nine. Any case in which the
student's claim survived summary judgment or any case in which the student prevailed only on
part of the constitutional claim was treated as a ruling in favor of the student.
57 Other commentators who have examined lower court rulings have found them to be more
hostile to the claims of student plaintiffs than this Note's examination reveals. "Frankly, in
reading the large body of case law since Tinker, it overwhelmingly seems much more in accord
with Justice Black's dissent than Justice Fortas's majority opinion." Chemerinsky, supra note 10,
2011]
STOP WITH THE EXCEPTIONS
185
For example, students prevailed in cases where they produced underground student newspapers off school grounds, but the schools attempted to punish the students when the newspapers were found on
school grounds.5 8 The students were entitled to First Amendment protection because the reach of school officials does not extend to students'
activities outside of school grounds.5 9 Furthermore, commentary on
school affairs or other issues of political significance, as contained in the
student newspapers, 6 0 should be considered politically significant under
Tinker, even if the issue is not as weighty as the Vietnam War.' If the
students successfully persuade enough members of the community to
adopt their point of view on a given issue, the students may succeed in
changing school policy; the right to advocate a change in government
policy is at the core of the freedom of speech guarantee.6 2
at 544. "A comprehensive review of lower-court decisions from 1969 to 1986 belies Tinker's
reputation as a strongly speech-protective standard. In the majority of student speech cases
decided under Tinker, the courts ruled for the schools." Sean R. Nuttall, Rethinking the Narrative on JudicialDeference, 83 N.Y.U. L. REv. 1282, 1300 (2008).
58 See Scoville v. Bd. of Educ., 425 F.2d 10 (7th Cir. 1970) (underground paper critical of
school administration distributed on school grounds though produced elsewhere); see also Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 960 (5th Cit. 1972) (underground paper critical of school
administration both produced and distributed off school premises); Thomas v. Bd. of Educ.,
607 F.2d 1043 (2d Cir. 1979) (allegedly obscene underground paper made and distributed off
school premises found on school grounds).
59 "We do not doubt that the state can appropriately legislate a state-wide 'variable' standard
of obscenity with respect to children . . . . Nevertheless, we believe that this power is denied to
public school officials when they seek to punish off-campus expression simply because they
reasonably foresee that in-school distribution may result." Thomas, 607 F.2d at 1052, n.18.
60 See Scoville, 425 F.2d at 15-16 (noting that the underground student newspaper published a response editorial to a pamphlet sent out by school administrators); see also Shanley, 462
F.2d at 972 (noting that the underground student newspaper advocated a review of the country's laws regarding the use of marijuana).
61 The Court in Tinker at no point limited the political speech rationale for its holding to
issues of national importance like the Vietnam War. Implicitly, it extended the rationale to
other points of view students may want to express. The Court stated that when the student is
on school grounds, "[h]e may express his opinion, even on controversial subjects like Vietnam, if
he does so without materially and substantially interfering with the requirements of appropriate
discipline in the operation of the school." Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.
503, 513 (1969).
62 See Virginia v. Black, 538 U.S. 343, 365 (2003) (plurality opinion) ("[L]awful political
speech [is] at the core of what the First Amendment is designed to protect."); see also R.A.V. v.
City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring in judgment) (stating that
"core political speech occupies the highest, most protected position" in the constitutional protection of speech); Randall v. Sorrell, 548 U.S. 230, 266 (2006) (Thomas, J., concurring in judgment) (referring to political speech as being at the core of what the First Amendment protects).
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Nevertheless, school officials would be able to prevent distribution
on school grounds or punish a student for possession of the underground paper on school grounds if the school could demonstrate it was
indecent, obscene, or presented a risk of substantial disruption with
school affairs. 5 However, the school could not simply punish students
because the school officials disagreed with the newspaper's criticism of
school officials or policies. 6 6 Since none of these cases involved the distribution of obscene or indecent material on school grounds, the students behind the newspapers were entitled to First Amendment
67
protection.
Students also prevailed in cases challenging school policies that
prohibited distribution of materials by students on school grounds,
63 The lower courts, prior to the Supreme Court's decision in Fraser,were admittedly split
on whether a school had to show a substantial disruption to censor material it deemed indecent.
Some lower court judges believed that the school did still need to show substantial disruption to
regulate material it deemed indecent, asserting that they "would hesitate . . . to conclude that the
obvious need for a flexible application of the First Amendment in the school setting allows
educational officials free-wheeling and unbridled discretion to prohibit expression they regard as
indecent, even within the narrow confines of the schoolhouse." Thomas, 607 F.2d at 1053.
Other lower court judges have believed that schools have broader ability to regulate language
they considered indecent, maintaining that "nothing in Tinker suggests that school regulation of
indecent language must satisfy the criterion of a predictable disruption." Id at 1055 (Newman,
J., concurring). The Supreme Court ultimately held in Fraser that a school did not need to
show a substantial disruption in order to regulate material it deemed indecent. This Note,
agreeing with Judge Newman that the Supreme Court's Tinker decision did not require a school
district to show a substantial disruption before regulating material it considered indecent, considered all of the cases involving underground newspapers under this standard. It found them to
be consistent with both Tinker and the Supreme Court's subsequent decisions in the area of
student free speech.
64 Obscene material does not receive any First Amendment protection. Kois v. Wisconsin,
408 U.S. 229 (1972). Thus, school officials can undoubtedly ban obscene material without the
need to show any substantial disruption.
65 Tinker set forth the substantial disruption standard:
conduct by the student, in class or out of it, which for any reason-whether it stems
from time, place, or type of behavior-materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech.
Tinker, 393 U.S. at 513.
66 Tinker, 393 U.S. at 509.
In order for the State in the person of school officials to justify prohibition of a
particular expression of opinion, it must be able to show that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.
Id.
67 See supra notes 58-66.
2011]
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187
without prior approval by school officials, when the schools did not have
adequate systems established to give or deny approval.6 " However, these
decisions did not challenge the ability of school officials to review
materials before permitting distribution as a general matter.' 9 School
officials are entitled to exercise some control over the distribution of
materials by students on school grounds.7 0 Time, place, and manner
restrictions are one such example; school officials can establish particular
places or times for students to distribute any desired materials to the
student body.7 1 School officials should be able, as a matter of policy, to
require students to submit the materials they want to distribute to
school officials for approval without running afoul of the First Amendment. This can ensure the material is not indecent, obscene, or likely to
cause a substantial disruption with school affairs.7n However, without
spelling out procedures for school officials to follow when conducting
these permissible reviews, this prior approval requirement could easily
result in impermissible viewpoint discrimination. Therefore, a school
must establish procedures that school officials can follow when reviewing student materials. Without such policies, a school's actions may
violate the First Amendment.7 1
68 See Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971) (invalidating a school policy forbidding distribution of materials without approval of principal when there was no criteria that
school officials were supposed to follow when rendering the decision); see also Nitzberg v. Parks,
525 F.2d 378 (4th Cir. 1975) (invalidating a school policy forbidding distribution without
school approval when there was no criteria for school officials to follow in making the decision
and for failure to provide prompt and adequate review of official decisions); Eisner v. Stamford
Bd. of Educ., 440 F.2d 803 (2d Cir. 1971) (invalidating school policy requiring approval by
school officials before distribution, since a time period was not set within which the review
would take place, and no procedure was established to submit materials for review).
69 But see Fujishima v. Bd. of Educ., 460 F.2d 1355 (7th Cir. 1972) (stating any policy
requiring school approval before distribution may occur is unconstitutional as a prior restraint).
70 Scoville v. Bd. of Educ., 425 F.2d 10, 13 (7th Cir. 1970) ("States and school officials have
'comprehensive authority' to prescribe and control conduct in the schools through reasonable
rules consistent with fundamental constitutional safeguards.").
71 Even the court in Fujishima stated that time, place, and manner restrictions imposed by
school officials would be permissible, stating: "[sluch injunction will not prevent defendants
from promulgating reasonable, specific regulations setting forth the time, manner and place in
which distribution of written materials may occur." Id. at 1359.
72 See supra notes 63-65.
73 See Quarterman, 453 F.2d at 59-60 (stating school's prior approval requirement was only
invalid under the First Amendment because it did not contain any criteria for school officials to
follow when undergoing the review, and no appeals process existed for students who disagreed
with the school official's decision); see aso Eisner, 440 F.2d at 810-11 (stating school's prior
approval requirement was only invalid under the First Amendment because it did not state a
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College students also prevailed in suits seeking to force their
schools to recognize particular student groups that the colleges sought to
keep off campus, including gay student groups, 7 1 Students for a Democratic Society,75 and a regional chapter of the American Civil Liberties
Union. 6 Since each of these cases involved clear viewpoint discrimination, the colleges' refusal to recognize the student groups violated the
First Amendment.7 7
The groups of cases set forth above are each examples of types of
student speech that were intended to be protected by the Supreme
Court's decision in Tinker.7 1 In each series of cases, the students were
being blatantly discriminated against on the basis of viewpoint (in the
underground newspaper cases7 9 and the college student group cases),"
or the school established a system which would permit blatant viewpoint discrimination (in cases involving school approval for distribution
of student materials).8 1
time period in which school officials must complete their review and did not specify how and to
whom the students must submit the materials for review).
7
See Gay Student Servs. v. Tex. A&M Univ., 737 F.2d 1317 (5th Cit. 1984); see alo Gay
Students Org. of Univ. of N.H. v. Bonner, 509 F.2d 652 (1st Cit. 1974); Gay Lib v. Univ. of
Mo., 558 F.2d 848 (8th Cit. 1977).
75 Healy v. James, 445 F.2d 1122 (2d Cit. 1971), rev'd 408 U.S. 169 (1972).
76 Univ. of S. Miss. Chapter of Miss. Civil Liberties Union v. Univ. of S. Miss., 452 F. 2d
564 (5th Cit. 1971).
77 See supra notes 74-76.
78 While the courts did not rely upon First Amendment grounds, some students were able to
prevail in suits seeking to prevent enforcement of a policy preventing male students from wearing their hair longer than a certain length. Tinker's substantial disruption test was used to evaluate the schools' justifications for the policy in order to determine whether the policy could be
maintained. See Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) (holding hair length policy
unconstitutional as either in violation of the Ninth Amendment or the penumbras of the First
Amendment); see also Crews v. Cloncs, 432 F.2d 1259 (7th Cit. 1970) (finding the length of
one's hair a fundamental right upon which school officials cannot infringe); Massie v. Henry,
455 F.2d 779 (4th Cit. 1972) (finding that the hair length policy was not justified by the need
for discipline or safety considerations and thus constitutionally invalid). Other courts have
found Tinker completely inapplicable, stating that a policy limiting an individual's hair length
does not implicate his right to free speech. See Jackson v. Dorrier, 424 F.2d 213 (6th Cit. 1970)
(finding no constitutional violation in dress code policy preventing male students from wearing
long hair); King v. Saddleback Junior Coll. Dist., 445 F.2d 932 (9th Cit. 1971).
79 See supra notes 58-66.
80 See supra notes 74-76.
81 See supra notes 68-73.
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In contrast, the decision of the Ninth Circuit in Fraser v. Bethel
School DistrictS2 was a dramatic extension of the principles of Tinker to
new areas not contemplated by the Supreme Court at the time of
Tinker. In Fraser, a student, Matthew Fraser, gave a speech at an assembly for student council elections that was crude and sexually suggestive.13 Prior to giving the speech, Fraser was informed by two of his
teachers that the speech was inappropriate, and that if he gave it anyway,
there would be consequences." During the speech, some students began hooting and yelling while others began simulating the sexual acts
intimated in the speech.8 1 Some sat quietly in their seats, looking confused or embarrassed.86 One teacher stated that she was forced to forego
her lesson plan altogether the following day to discuss Fraser's speech
with her class.8 As a result, Fraser was suspended for three days because
his conduct was deemed "obscene," in violation of school policy. Fraser
sued for an injunction under 42 U.S.C. § 1983.
The Ninth Circuit ruled in Fraser's favor.89 The court first dismissed the school's argument that Fraser's actions constituted a substantial disruption of school affairs.9o The school next contended that even
if the speech was not disruptive, it could punish Fraser for giving the
speech simply because it was indecent.91 The school also argued that
the Supreme Court's ruling in Federal Communications Commission v.
Fraser v. Bethel Sch. Dist., 755 F.2d 1356 (9th Cir. 1985), rev'd Bethel Sch. Dist. v.
Fraser, 478 U.S. 675 (1986).
83 Fraser v. Bethel Sch. Dist., 755 F.2d at 1357. The speech was as follows.
I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character
is firm-but most of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue
and nail it to the wall. He doesn't attack things in spurts-he drives hard, pushing
and pushing until finally-he succeeds. Jeff is a man who will go to the very endeven the climax, for each and every one of you. So vote for Jeff for A.S.B. vicepresident-he'll never come between you and the best our high school can be.
82
Id.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 678 (1986).
Fraser v. Bethel Sch. Dist., 755 F.2d at 1359.
86 Id. at 1359-60.
87 Id. at 1360.
88 42 U.S.C. § 1983 (2006).
89 Fraser v. Bethel Sch. Dist., 755 F.2d at 1365.
90 Id. at 1360. ("In our view, a noisy response to the speech and sexually suggestive movements by three students in a crowd of 600 fail to rise to the level of a material interference with
the educational process that justifies impinging upon Fraser's First Amendment right to express
himself freely.").
91 Id. at 1361.
84
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Pacifica Foundation,92 allowing the government to punish indecent language on the broadcast airwaves, should be extended to the schools."
The Ninth Circuit dismissed this argument, stating that while
broadcasting intrudes upon the home's sphere of privacy (giving the
government greater regulatory authority over it), high school students
voluntarily attending an assembly do not enjoy the same protection
against language deemed inappropriate." This rationale, of course,
completely ignores the fact that students are required to attend school.
In addition, the students who listened to Fraser's speech were forced to
either attend the assembly or a study hall,95 essentially giving them less
freedom than a person at home would have in choosing whether or not
to tune into a particular program. The Ninth Circuit also stated that
high school students are not impressionable, and that the school should
have no authority to regulate indecent speech because allowing it to do
so would give the school too much authority.9 6
In an even further leap, the Ninth Circuit dismissed the school's
final argument that Fraser could be punished for his speech because it
was given at a school-sponsored assembly.9 7 The court limited the
school's area of control to what was said in the classroom environment
as part of the curriculum;9 the fact that the school gave up part of its
instruction time for the assembly seemed to be deemed irrelevant by the
court.
The implications of this decision are that school officials are powerless to regulate student speech outside of the specific classroom environment, unless the student's speech caused a substantial disruption or
92 FCC v. Pacifica Found., 438 U.S. 726 (1978) (holding that the FCC was within its
authority to take action against a radio station for airing George Carlin's "Filthy Words" monologue in the middle of the afternoon).
93 Fraser v. Bethel Sch. Dist., 755 F.2d at 1362.
9 Id
95
Id. at 1364.
96 Id. at 1362-63.
We fear that if school officials had the unbridled discretion to apply a standard as
subjective and elusive as "indecency" in controlling the speech of high school students, it would increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.
Language that may be considered "indecent" in one segment of our heterogeneous
society may be common, household usage in another.
Id. at 1363.
97 Id. at 1363-66.
98 Id. at 1363-64.
2011]
STOP WITH THE EXCEPTIONS
191
was legally obscene. 99 Since legal obscenity is unlikely to be implicated
in student speech cases, virtually no speech outside the classroom that
does not cause a substantial disruption is punishable by a school, regardless of its content. This hardly affords deference to school officials to
make day-to-day decisions about school operations, deference which
Tinker stated it was maintaining."oo The implications of the Ninth Cir-
cuit's Fraserdecision, in dramatically extending Tinker, likely resulted in
the Supreme Court finally granting certiorari in another student speech
case after declining a number of previous opportunities to reenter the
field in prior years.'
III.
BETHEL SCHOOL DisTRICT v. FRASER
02
In Bethel School District v. Fraser,1
the Supreme Court reversed
0
3
the decision of the Ninth Circuit.
Chief Justice Burger, writing for
the majority, quickly noted, "the marked distinction between the political 'message' of the armbands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by
the Court of Appeals." 04 In addition, the Court stated, "unlike the
The standard for whether an expression is legally obscene is
(a) whether "the average person, applying contemporary community standards"
would find that the work, taken as a whole, appeals to the prurient interest . . .; (b)
whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value.
Miller v. California, 413 U.S. 15, 24 (1973).
100 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 507 (1969) ("The Court has
repeatedly emphasized 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.").
101 See Thomas v. Bd. of Educ., 607 F.2d 1043 (2d Cit. 1979) (punishment of students for
producing allegedly obscene underground paper made and distributed off school premises, but
found on school grounds, held to violate the First Amendment), cert. denied, 444 U.S. 1081
(1980); see also King v. Saddleback Junior Coll. Dist., 445 F.2d 932 (9th Cit. 1971) (school's
policy regulating hair length of male students held not to violate any of the students' constitutional rights), cert. denied, 404 U.S. 979 (1971); Trachtman v. Anker, 563 F.2d 512 (2d Cir.
1977) (holding school's prohibition on distribution of sex questionnaire by students to other
students did not violate the First Amendment), cert. denied, 435 U.S. 925 (1978); Jacobs v. Bd.
of School Comm'rs, 490 F.2d 601 (7th Cir. 1973) (holding school rules on distribution of
literature by students unconstitutional and asserting occasional presence of inappropriate language in underground student newspaper did not permit censorship), vacated as moot, 420 U.S.
128 (1975).
102 Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).
99
103 Id. at 687.
104 Id. at 680.
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[Vol.
sanctions imposed on the students wearing armbands in Tinker, the
penalties imposed in this case were unrelated to any political viewpoint."10 The school officials simply wanted to punish Fraser for giving a lewd and vulgar speech, which is permissible under the First
Amendment.o 6 The Chief Justice noted that the expression of the political viewpoint in Tinker was not disruptive and did not substantially
interfere with school affairs. 0 7 However, Fraser's speech caused the assembly to get out of control and ruined a teacher's lesson plan the following day, as she was forced to discuss the speech. 0 8 The Court also
discussed at length the recognized interest of the State in protecting minors from harmful subject matter' 9 and the school's ability to set rules
for debate akin to those in Congress, which prohibits members from
using abusive language in debate."o
The Court, while undoubtedly reaching the correct result in Fraser,
said considerably more than was necessary to reach that result. Fraser
should only have been able to obtain the protection given in Tinker if
his speech was either expressing an opinion on a matter of public concern, or if the school discriminated against him on the basis of his viewpoint. Only if one of these elements was met would the school need to
prove a substantial disruption had occurred. Since neither element was
present in this case, the existence of substantial disruption caused by
Fraser's speech was irrelevant,"' though the facts make it reasonably
clear that a substantial disruption did occur. Though the Court's opinion in Tinker frequently discussed the absence of substantial disruption,
the discussion was necessary because the students were silently expressing an opinion on a political issue, and the school was discriminating
against the students on the basis of viewpoint." 2 At no point in the
105
106
107
Id. at 685.
Id
Id at 680.
108 Id. at 678.
109 Id at 683-85.
110 Id. at 681-82.
111 See Thomas v. Bd. of Educ., 607 F.2d 1043, 1055 (2d Cir. 1979) (Newman, J., concurring) ("Nothing in Tinker suggests that school regulation of indecent language must satisfy the
criterion of a predictable disruption.").
112 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)
("The school officials
banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.").
In order for the State in the person of school officials to justify prohibition of a
particular expression of opinion, it must be able to show that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that
2011]
STOP WITH THE EXCEPTIONS
193
Court's opinion in Tinker is it stated that the substantial disruption test
is to be applied to all kinds of student speech regardless of the
circumstances.
Instead of disposing of the case in this manner, the Court discussed
at length the State's role in protecting minors from lewd, indecent, or
obscene speech." 3 This extended discussion was used to answer the
question of whether the use of vulgarity would change the calculus if a
student was otherwise commenting on a matter of political significance.
This is because political speech, barring a showing by school officials of
substantial disruption, would receive First Amendment protection under
Tinker."' The Court's discussion of vulgarity is designed to dispel this
notion. Political commentaries by students are entitled to more protection in schools than other more general forms of speech, but even the
protection given to speech of a political nature is not absolute."' As
Chief Justice Burger states, "[n]othing in the Constitution prohibits the
states from insisting that certain modes of expression are inappropriate
and subject to sanctions. The inculcation of these values is truly the
'work of the schools.'" 16 The Court is merely making the point that
even if Fraser's speech was commenting on a matter of political significance, Fraser could still not claim the protection of the First Amendment because his speech was vulgar; the existence of vulgarity causes a
substantial disruption with school affairs.
Nevertheless, the vulgarity discussion by the Fraser majority has
brought about the perception that the decision in Fraseris the first in a
series of exceptions to the Tinker standard of substantial student free
speech rights.' 1 7 Admittedly, Justice Marshall, who was in the majority
always accompany an unpopular viewpoint. Certainly where there is no finding and
no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the
school," the prohibition cannot be sustained.
Id. at 509. "Clearly, the prohibition of expression of one particular opinion, at least without
evidence that it is necessary to avoid material and substantial interference with schoolwork or
discipline, is not constitutionally permissible." Id. at 511.
''3
Bethel Sch. Dist. v. Fraser, 478 U.S. at 681-86.
"14 Tinker, 393 U.S. at 514 (holding that school officials had been unable to show any substantial disruption and therefore the students must prevail on their First Amendment claim).
115 Id. (indicating that if the armbands had caused a substantial disruption, wearing the armbands would not be protected by the First Amendment).
116 Bethel Sch. Dist. v. Fraser, 478 U.S. at 683.
117 See Piotr Banasiak, Morse v. Frederick- Why Content-BasedExceptions, Deference, and Confiusion are Swallowing Tinker, 39 SETON HALL L. REv. 1059, 1060 (2009) (referring to Fraseras
the first exception to Tinker's substantial disruption test); Shari Golub, Tinker to Fraser to Ha-
194
CARDOZO PUB. LAW POLICY &' ETHICS J
[Vol. 10:175
in Tinker,"' dissented in Fraser on the grounds that the school district
failed to demonstrate a substantial disruption.' 1 9 However, even assuming the substantial disruption test was intended to have blanket application after Tinker, and that no substantial disruption occurred in Fraser,
extending First Amendment protection to Fraser's actions poses fundamental problems. Under the substantial disruption test, in order for
school officials to censor speech, they need a substantial disruption to
occur; a substantial disruption presumably includes fights in the hallway, or students yelling and screaming at one another, or the school
being affected in some other demonstrably negative fashion. The substantial disruption test is a logical balancing of interests that occurs
when a student wishes to express an opinion on a matter of public concern, as in Tinker, or the school is merely discriminating against a student based on disagreement with the student's views. The First
Amendment right to freedom of speech is at its most fundamental when
the State tries to censor a student from expressing his opinion on a
political issuel2 or censors a student because of mere disagreement with
his views.121
Fraser's actions, though, are in an entirely different class altogether.
The purpose of the assembly was to allow candidates for student council
to give speeches promoting their candidacy. 12 2 The school was allowing
a platform for students to express their views and expected to control
what was to be said; after all, Fraser showed his speech to several teachers, who informed him that the speech was inappropriate and should
not be read. 12 3 The sexual metaphors layered within his speech were
zelwood-Supreme Courts Double Play Defeats High School Students' Rally for FirstAmendment
Rights: Hazelwood Sch. Dist. v. Kuhlmeier, 38 DEPAUL L. REV. 487, 490 (1989) (referring to
Fraser as part of a gradual erosion of students' First Amendment rights after Tinker).
118 Justice White and Justice Brennan, both in the majority in Tinker, sided with the school
district in Fraser. Bethel Sch. Dist. v. Fraser, 478 U.S. at 676.
119 Id. at 690. Justice Marshall does not make clear in his opinion what he would actually
consider to be a substantial disruption. The bar must be rather high, though, since he does not
find a substantial disruption to have occurred under the facts in Fraser.
120 See supra note 62.
121 See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) ("Viewpoint discrimination is thus an egregious form of content discrimination. The government must
abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.").
122 Bethel Sch. Dist. v. Fraser, 478 U.S. at 675.
123 Id. at 678.
2011]
STOP WITH THE EXCEPTIONS
195
inappropriate for the forum and audience.12 4 Any speech given at a
school assembly could plausibly be interpreted to have the endorsement
of the school,125 and if a student in attendance had complained to his
parents upon arriving home, the school most certainly would have faced
complaints. Fraser, by reading a speech he was instructed not to give,
was openly flouting school authority and reading what could have been
viewed as a school-sanctioned speech. As a result, the substantial disruption test seems inappropriate to this set of facts.
Carrying Justice Marshall's argument to its most logical end, Fraser
could have said anything during his student council speech as long as
the students remained reasonably quiet and discussion of the speech did
not continue thereafter in any meaningful way. The First Amendment's
protection could therefore extend to students cursing at teachers while
passing in the hallway; after all, if everyone continues about their merry
way, certainly no substantial disruption has occurred. While Fraser's
speech, if delivered outside school grounds, would not rise to the level of
obscenity that is outside the First Amendment's protection,1 2 6 the
school must nevertheless be given considerable latitude to impose standards of conduct and discipline and to determine the bounds of appropriate school conduct. Otherwise, if the protections of Tinker extend to
Fraser's actions, then maybe Justice Black was correct in asserting that
Tinker "surrender [ed] control of the American public school system to
public school students."1 2 7
The Court in Fraserseemed to give considerable weight to the idea that the audience was
impressionable, though it is hard to see how this speech to fourteen-year-old children was anything more profane than what they would see in a PG-13 movie, which is considered appropriate for children of that age. Id. at 684 (stating the speech could be seriously damaging to the
124
fourteen-year-old children in attendance).
125 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988) (stating that students'
expressive activities may be characterized as part of the curriculum so long as they are supervised
by faculty members and designed to impart knowledge to student participants and audiences).
The school assembly at issue in Fraser meets this test as it was supervised by the faculty and
intended to give students an introduction into the democratic process. Bethel Sch. Dist. v.
Fraser, 478 U.S. at 681 (referring to schools' role in teaching the democratic process).
126 "If [Fraser] had given the same speech outside of the school environment, he could not
have been penalized simply because government officials considered his language to be inappropriate; the Court's opinion does not suggest otherwise." Id. at 688 (Brennan, J., concurring in
judgment).
127 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 526 (1969).
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IV.
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HAZELWOOD SCHOOL DisTRICT v. KUHLMEIER
The Supreme Court took only two years after Fraserto reenter the
area of student free speech rights in Hazelwood School District v.
Kuhlmeier,12 8 which involved the publication of a student newspaper at
Hazelwood East High School.12 9 The Spectrum was published as part of
the school's Journalism II course, which was described by the school as a
"laboratory situation in which the students publish the school newspaper applying skills they have learned in Journalism I.">130 A group of
students sued the school district under 42 U.S.C. § 1983131 after Hazelwood East High School's principal trimmed the year's final newspaper
from six pages to four because of concerns about two articles.1 32 The
principal believed that no time existed to make the required changes and
publish the paper before the conclusion of the school year.1 3 3
The first article concerned three pregnant teenage girls at the
school.' 34 Though the article used aliases to keep the girls' names private, and the article's author promised the girls anonymity, the principal
felt they were still easily identifiable from 'the article's text.135 As a result, he worried about the effect the identification would have on the
girls, their boyfriends, and the girls' parents.136
The second article dealt with the impact of divorce on several students. 3 7 The central issue with this article was the statement of one
female student, identified by name in the article, which was highly critical of her father's actions leading up to her parents' divorce.1 38 The
128 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
129 Id. at 262.
130 Id. at 268.
13' 42 U.S.C. § 1983 (2006).
132 Hazelwood, 484 U.S. at 262-64.
133 Id. at 263-64. The two pages of the paper in question also contained four other articles
that ended up not being published as part of the principal's decision, though the principal stated
he had no issue with those articles and that they were only removed because they happened to
appear on the same pages as the articles he deemed inappropriate. Id at 264.
134 Id at 263.
135 Id
136 Id. at 274 n.8. The girls openly discussed their sexual history in the article, which they
might have chosen not to do had they known their anonymity was not being adequately protected. Id. at 274. There is also support for the principal's contention that the number of
pregnant girls in the school was small, and one teacher stated that she could positively identify
one of the girls from the article's text, and possibly even all three. Id.
137 Id. at 263.
138 The student claimed her father wanted to spend more time with his friends than with his
family and was always out of town on business. Id
2011]
STOP WITH THE EXCEPTIONS
197
article gave neither parent a chance to respond to the student's remark.' 3 9 The principal was therefore concerned about potential liability
for the school, unaware at the time that the student's name had been
removed from the final edition of the article by the faculty advisor.o
Justice White, a member of the Court's majority in Tinker, wrote
for the Court's majority in Hazelwood."' In ruling in favor of the
school district, he discussed at considerable length the amount of control that school officials exercised over the Spectrum.14 2 First, school
officials always characterized the Spectrum as part of a regular classroom
activity.14 3 In addition, the faculty member who oversaw the Spectrum
had overwhelming control over the Spectrum's day-to-day operations.144
The Court ultimately accepted the trial court's findings that the faculty
member exercised final control over almost every aspect of the newspaper, which was then still reviewed by the principal prior to publication. 4' Therefore, the Court dismissed the students' contention that
they had virtually free rein over what to write, finding it was not
credible.' 4 ,
Critics of Hazelwood claim that the Court's majority declined to
follow established precedent by not applying the Tinker standard to the
facts of this case.' 7 However, because of the school's considerable control over the Spectrum's publication, application of the Tinker standard
to this case is simply improper. As the Court noted, the substantial
disruption test articulated in Tinker was "nowhere expressly exId
Id
141 Id. at 262.
'39
140
142 Id. at 268-70. The Court dispelled the notion, asserted by the Court of Appeals for the
Eighth Circuit, that the newspaper was a public forum for the purposes of the First Amendment. Id. at 267-70. They cited to the syllabus of the opinion, which has no precedential value.
In addition, the Court noted that any control the students did exercise was consistent with the
purposes of the Journalism II curriculum. Id. at 270.
143 Id. at 268.
144 Id. The faculty member in charge of overseeing the Spectrum performed the following
duties: (1) selected the editors of the newspaper; (2) scheduled publication dates; (3) decided the
number of pages for each issue; (4) assigned story ideas to class members; (5) advised students
on the development of their stories; (6) reviewed the use of quotations; (7) edited stories; (8)
selected and edited the letters to the editor; and (9) dealt with the printing company. Id. The
school district also paid for a substantial portion of the newspaper's printing costs. Id.
145 Id. at 268-69.
146
Id. at 269.
147
Golub, supra note 117, at 504.
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tended . . . to the news and feature articles contained in a school-spon-
sored newspaper."
The idea that Tinker was meant to apply to the facts of Hazelwood
further demonstrates a misunderstanding of the reach of Tinker's holding. The facts of Tinker are inapposite to the facts of Hazelwood.
Tinker addressed "educators' ability to silence a student's personal expression that happens to occur on the school premises, 1 49 whereas Hazelwood addressed "educators' authority over school-sponsored
publications, theatrical productions, and other expressive activities that
students, parents, and members of the public might reasonably perceive
to bear the imprimatur of the school." 15 0 There is no reason to think
Tinker was ever meant to extend to publications or other activities actually run by school officials.
Extending the protection afforded by Tinker to student speech
bearing the endorsement of a school would seem to violate the Supreme
Court's own rule of not deciding more than is actually necessary.15 1
The Tinker opinion never discusses whether its test would be different if
the student speech could be perceived as school endorsed, making the
presumption that Tinker was meant to reach school-sponsored speech
inappropriate. The school's interest in regulating the speech is far
greater when the student's speech appears to have the school's support.15 2 There is, therefore, no reason to conclude that Hazelwood is
abandoning or limiting Tinker in any fashion; the Court, once again,
has simply established that the lower courts have applied Tinker to cover
circumstances it was never meant to touch.
148 Hazelwood, 484 U.S. at 270.
149 Id. at 271.
150 Id.
151 See Citizens United v. FEC, 130 S. Ct. 876, 919 (2010) ("'[I]f it is not necessary to
decide more, it is necessary not to decide more."'). See also Morse v. Frederick, 551 U.S. 393,
431 (Breyer, J., concurring) ("And the 'cardinal principle of judicial restraint' is that 'if it is not
necessary to decide more, it is necessary not to decide more.'") (citing PDK Labs., Inc. v. Drug
Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and
concurring in judgment).
152 Hazelwood, 484 U.S. at 271.
Educators are entitled to exercise greater control over [student expression under school
control] to assure that participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material that may be inappropriate
for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.
Id.
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Critics of Hazelwood contend that students should have broad First
Amendment rights when working on a publication like a school newspaper because it is "inherently a vehicle for student expression."'1 3 A
student newspaper, admittedly, functions much like a real newspaper,
reporting on the news of the day and upcoming events at the school,
and at times, publishing articles properly characterized as opinion
pieces. The school newspaper at issue in the Hazelwood case even
printed the following statement: "Spectrum, as a student-press publication, accepts all rights implied by the First Amendment.""' Justice
Brennan, in his dissent, characterized this statement as one that indicates "an appreciation and exercising the full panoply of rights associated with a free student press."15 5 Justice Brennan, of course, was
careful to include the word "student" between free and press, because
that makes all the difference in his argument.
After all, if the Spectrum were to be treated as a real daily newspaper, any article written by a staffer could be excised for any reason, not
simply because the articles posed significant liability problems for the
school. The editor would even be free to cut the remaining articles, as
the principal did in Hazelwood, without explanation. For a school
newspaper, the principal and the newspaper's faculty advisor function as
editors, giving them control over what will be published as part of the
school newspaper.1 56 Therefore, critics of Hazelwood who argue for
broad First Amendment student rights in relation to the school newspaper essentially propose that students have more control and authority
over a school publication than any staff member on any real world
newspaper would ever have. This is precisely why Hazelwood's critics
talk about the students' right to a free press only up until the point
where the analogy undermines their entire argument.
The response proffered by critics is that the right of freedom of the
press is meant to apply against the State and, as an extension of the
State, to the public school; whereas private newspaper publishers are
private entities.' 5 7 While certainly correct, this response misses the
point. The government has much broader powers to regulate speech in
153 Golub, supra note 117, at 508. Golub therefore argues that a school newspaper should be
given more comprehensive protection under the First Amendment. Id.
154 Hazelwood, 484 U.S. at 269.
155 Id. at 277 (Brennan, J., dissenting).
156 The control exercised by the Spectrum's faculty advisor was clearly laid out and understood. See supra note 144 and accompanying text.
157 Golub, supra note 117, at 506.
200
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certain areas, such as the speech of government employees.158 If the
school district in Hazelwood hired adults in the community, instead of
students, to produce a newspaper covering the news of the schools in the
district, the supervisor-the principal-would be able to maintain substantial control over the publication's content.
While public school students working on the school newspaper are
of course neither private nor government employees, the relationship
between the school and its students is nevertheless a unique one. The
government has more latitude in regulating speech that takes place on
school grounds, even if such regulation would be unconstitutional if
applied off of school grounds.15 9 Because a public school is functionally
an arm of the State, it is forced to wear many hats, including a parental
one.' 6 0 The view of public schools as acting purely as in loco parentis
was dominant for much of this country's history""t and is still advocated
by some today.1 62 Though schools do not have as complete authority as
158 See Waters v. Churchill, 511 U.S. 661, 671 (1994) ("We have never explicitly answered
this question, though we have always assumed that its premise is correct-that the government
as employer indeed has far broader powers than does the government as sovereign."); see also
Snepp v. United States, 444 U.S. 507 (1980) (per curiam) (finding it constitutional for the
government to require a CIA agent to submit any material he wants to publish to the agency for
approval prior to publication); United States v. Nat'l Treasury Emps. Union, 513 U.S. 454
(1995) (holding that Congress may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large).
159 "If [Fraser] had given the same speech outside of the school environment, he could not
have been penalized simply because government officials considered his language to be inappropriate; the Court's opinion does not suggest otherwise." Bethel School Dist. v. Fraser, 478 U.S.
675, 688 (1986) (Brennan, J., concurring in judgment).
160 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995).
Traditionally at common law, and still today, unemancipated minors lack some of the
most fundamental rights of self-determination-including even the right of liberty in
its narrow sense, i.e., the right to come and go at will. They are subject, even as to
their physical freedom, to the control of their parents or guardians. When parents
place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them.
Id. (citation omitted).
161 See supra p. 1. "As early as 1837, state courts applied the in loco parentis principle to
public schools." Morse v. Frederick, 551 U.S. 393, 413 (2007) (Thomas, J., concurring). "A
review of the case law shows that in loco parentis allowed schools to regulate student speech as
well. Courts routinely preserved the rights of teachers to punish speech that the school or
teacher thought was contrary to the interests of the school and its educational goals." Id. at 414.
162 "In the name of the First Amendment, Tinker has undermined the traditional authority of
teachers to maintain order in public schools." Id. at 421. "The Court's analysis in the school
power cases has exacerbated the loss of respect, deference, and trust in the public school as an
institution and has wrongly insinuated that these qualities are incompatible with liberty. Indeed, order in the schools increasingly has become 'what will stand up in court."'
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201
they once did, one of a school's primary functions is still to act in loco
parentis.16 3 The school educates, disciplines, and ensures the children's
safety while the children are in its care, just as any parent would. Even
though a public school today has discernible limits on the rules it can
make and enforce, students, while in school, do not have the same constitutional rights as they do when they are not on school grounds.164
School officials are given broader authority over students than other
State actors are over adults because such authority is required to fulfill
their roles as teachers and administrators.' 61
As a result, the argument proffered by Hazelwood's critics seems to
be backwards. By arguing that the students should have prevailed in
Hazelwood, Hazelwood's critics contend that public school students
should have more rights when working on a school newspaper than either private or government employees would have in an identical situation.1 6 6 This is in spite of the well-established facts that students have
fewer rights while on school grounds,' 67 and that the rights of minors
are not coextensive with those of adults.16' Essentially, the argument is
that public school students, by the mere fact that they are public school
students working on a school newspaper, have found some special set of
free speech rights that would not be present in most other contexts.
Thus, holding for the students in Hazelwood would not be merely applying Tinker, but greatly expanding it to new, unanticipated areas.
Anne Proffitt Dupre, Should Students Have ConstitutionalRights? Keeping Order in the Public
Schools, 65 GEO. WASH. L. REV. 49, 50-51 (1996).
163 "We have acknowledged that for many purposes 'school authorities act in loco parentis'
with the power and indeed the duty to 'inculcate the habits and manners of civility.'" Acton, 515
U.S. at 655-56 (1995) (quoting Bethel Sch. Dist. v. Fraser, 478 U.S. at 681, 684).
164 "[W]hile children assuredly do not 'shed their constitutional rights ... at the schoolhouse
gate,' the nature of those rights is what is appropriate for children in school." Id (quoting
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969)).
"Even in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if
undertaken by an adult." New Jersey v. T.L.O., 469 U.S. 325, 339 (1985).
166 See Golub, supra note 117 at 506-07 (arguing that even though a private publisher could
have unquestionably censored the articles at issue in Hazelwood, this should have no bearing on
165
the decision in Hazelwood).
167 "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students." Tinker, 393 U.S. at 506.
16s "[Elven where there is an invasion of protected freedoms, 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults."' Ginsberg v.
New York, 390 U.S. 629, 638, (1968).
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This would completely remove the deference to school officials that
Tinker insisted was still intact.'6 9
V.
MORSE V. FREDERICK
After Hazelwood, the Supreme Court did not decide another student free speech case for almost twenty years, when the issue was revis7 0 In Morse, the school ushered the students
ited in Morse v. Frederick.o
outside to watch the Olympic Torch pass through town as part of the
torch relay leading up to the Olympic Games in Salt Lake City, Utah. 7 1
The school characterized this activity as a class trip.172 As the Olympic
Torch, and the camera crews that came with it, passed by, Frederick and
his friends unfurled a banner that read "Bong Hits 4 Jesus."173 Principal
Morse ordered the banner to be taken down since it violated a school
rule that prohibited advocating the use of illegal substances by minors. 174 Everyone, aside from Frederick, complied. 7 1
Frederick was ultimately suspended from school because of the
school's claims that the banner advocated the use of illegal drugs, not
simply because the school disagreed with the banner's message.' 7 Fredand prevailed on his First
erick sued under 42 U.S.C. § 1983'
Amendment claim in the Ninth Circuit. 78
In deciding Morse, the Supreme Court was markedly split. It produced five separate opinions, though Chief Justice Roberts was able to
muster five votes to reverse the Ninth Circuit and find Frederick's suspension permissible under the First Amendment.' 7 9 The Court first dis169 "The Court has repeatedly emphasized 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." Tinker, 393 U.S. at 507.
170 Morse v. Frederick, 551 U.S. 393 (2007).
171 Id. at 397.
172 I
17
Id
'74
Id
'75
Id. at 398.
176 Id
'77
42 U.S.C. § 1983 (2006).
178 Morse, 551 U.S. at 399-400. This Note will not address the qualified immunity portion
of the Court's opinions, since the Court was unanimous in finding that the Court of Appeals for
the Ninth Circuit erred by not giving the principal qualified immunity, which precluded Frederick's claim for damages. Id. at 409.
179 Id at 395.
2011]
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203
missed Frederick's argument that this was not a case about school speech
at all since he was not on school premises.18 0
The Court next turned to the much more difficult question of
what exactly "Bong Hits 4 Jesus" should be read to mean.' 8 ' Frederick
argued the sign was "just nonsense meant to attract the television cameras."' 8 2 Finding this unpersuasive, the Court stated, "dismissing the
banner as meaningless ignores its undeniable reference to illegal
drugs."'8 3 As the Court pointed out, it is likely that Frederick's banner
was really designed to attract attention from the television cameras,
Nevertheless, Frederrather than actually promote illegal drug use."
ick's purpose for displaying the banner does not change a casual observer's most likely interpretation of the banner, which is that it
supported the use of illegal drugs.18' Reading "Bong Hits 4 Jesus" in
the most logical way compels the conclusion that the banner advocated
illegal drug use. 186
180 The students were supervised at all times by members of the faculty. Id. at 400-01. This
made the torch relay akin to a field trip insofar as the school maintained control over the students, even though the students were not on school grounds.
181 Id. at 401-02.
182 Id. at 401.
183 Id. at 402.
184
185
Id.
Jd
186 The dissent in Morse spent considerable time at various points of its opinion unpersuasively arguing that the banner's message was ambiguous and could not really be interpreted to
mean anything: "it is one thing to restrict speech that advocates drug use. It is another thing
entirely to prohibit an obscure message with a drug theme that a third party subjectively-and
not very reasonably-thinks is tantamount to express advocacy." Id. at 439 (Stevens, J., dissenting). "This is a nonsense message, not advocacy." Id. at 444. "Frederick's credible and uncontradicted explanation for the message-he just wanted to get on television-is also relevant because
a speaker who does not intend to persuade his audience can hardly be said to be advocating
anything." Id "[I]t takes real imagination to read a 'cryptic' message ... with a slanting drug
reference as an incitement to drug use." Id
The dissent argues that the sign is ambiguous at best because it seems to suggest at various
points in its opinion that if the banner could be read to promote illegal drug use, then the
school's actions would have been permissible. For example, the dissent states the following: "the
school's interest in protecting its students from exposure to speech 'reasonably regarded as promoting illegal drug use,' . . . cannot justify disciplining Frederick for his attempt to make an
ambiguous statement to a television audience simply because it contained an oblique reference
to drugs." Id. at 434. "I am willing to assume that the Court is correct that the pressing need to
deter drug use supports [Juneau-Douglas High School's] rule prohibiting willful conduct that
expressly 'advocates the use of substances that are illegal to minors."' Id. "[Tihe First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly
advocates conduct that is illegal and harmful to students." Id. at 435. Thus, if the dissent
found Frederick's banner to expressly advocate the use of illegal drugs, it logically follows that
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After concluding that the banner advocated illegal drug use, Chief
Justice Roberts's opinion reviewed the Court's precedents."' The
Court noted that neither Fraser nor Kuhlmeier control the outcome in
Morse.' The Court claimed that finding the banner to be "offensive,"
and thus controlled by Fraser, could sweep in any political or religious
speech that others may find "offensive." 189 Kuhlmeier also did not control because Frederick's banner could not reasonably be interpreted as
bearing the school's endorsement. 9 o
A reasonable argument could be advanced that the banner was offensive within the meaning of Fraser, as it advocated illegal drug use in
the name of a holy religious figure, something many undoubtedly would
find offensive. The school assembly speech in Fraser, however, contained an extended sexual metaphor that was unnecessary for the
speech's purpose, namely endorsing a candidate for the student council,
while Frederick's message was advocating illegal drug use. Since advocating illegal drug use in the name of Jesus is the most logical interpretation of Frederick's banner, it is unlikely that there is a non-offensive way
for the point to be made. After all, the phrases "Roll a Joint for Jesus"
or "Smoke a Doobie for Christ" would not likely be construed as any
less offensive. Thus, any message that could not be said in a purely
inoffensive way would be impermissibly censored. The Court concluded that due to the dangers that illegal drug use poses, "the First
Amendment does not require schools to tolerate at school events student
expression that contributes to those dangers."'
The Court's majority, with the exception of Justice Thomas, reaffirmed the holding in Tinker.'9 Chief Justice Roberts noted that
Tinker dealt with political speech, which is at the core of what the First
the dissent may have joined the majority opinion. As a result, it must spend time attacking the
conclusion that Frederick's banner amounted to express advocacy in order to reach its result that
the banner was protected by the First Amendment.
187 Id. at 404-06 (majority opinion).
188
189
Id. at 405, 409.
Id at 409.
190 Id
at 405.
191 Id. at 410. The Court also noted that drugs pose a special danger to adolescents due to
their bodies' rapid growth and maturation rate, before pointing to the alarming rates of high
school students experimenting with illegal drugs. Id at 407.
192 Id. at 404. See also id. at 410 (Thomas, J., concurring) (stating that Tinker is "without
basis in the Constitution"). Id. at 422 (Alito, J., concurring) (stating the Court's majority
opinion correctly reaffirms Tinker).
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STOP WITH THE EXCEPTIONS
205
Amendment protects. 193 The Chief Justice also noted that the school
merely wanted to suppress a viewpoint that would be unpopular.' 9 4
Justice Stevens' dissent emphasized that wholesale viewpoint discrimination had occurred here.' 95 As the Court acknowledged, Morse is
a very close case in striking the appropriate balance between the rights of
school officials to manage their schools and the First Amendment rights
of public school students.' 9
However, a substantial difference exists between the viewpoint discrimination in Tinker and the viewpoint discrimination in Morse. In
Morse, the school banned all speech that advocated illegal conduct. 9 7
In Tinker, the school district did not ban all speech that commented on
issues of political significance, but only sought to ban the armbands.' 9 '
By not allowing the students to wear their armbands, the school
district in Tinker was discriminating against the students on the basis of
their viewpoints. The school district was preventing the students from
193
Id. at 403 (majority opinion).
194
Id. at 403-04.
195 Id. at 438-39 (Stevens,
J.,
dissenting).
The Court rejects outright these twin foundations of Tinker [(the prohibition of viewpoint discrimination and that advocating illegal conduct can only be punished when
the harm of the illegal conduct is likely to occur as a result)] because, in its view, the
unusual importance of protecting children from the scourge of drugs supports a ban
on all speech in the school environment that promotes drug use. Whether or not
such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely
harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.
Id.
Id. at 409 (majority opinion). ("[E]ven the dissent recognizes that the issues here are close
enough that the principal should not be held liable in damages, but should instead enjoy qualified immunity for her actions."); see id. at 425 (Alito, J., concurring) ("I therefore conclude that
the public schools may ban speech advocating illegal drug use. But I regard such regulation as
standing at the far reaches of what the First Amendment permits.").
197 Id. at 398 (majority opinion) ("The Board specifically prohibits any assembly or public
expression that . . . advocates the use of substances that are illegal to minors.").
198 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 510-11 (1969). This is not to say
that a school could ban all political commentary within the school building, as the right to
advocate a political point of view is recognized as highly protected under the First Amendment,
certainly more so than advocating illegal conduct. This point is merely to illustrate that since
the school allowed students to comment on political issues, the school could not then discriminate against a particular point of view without demonstrating that the point of view it sought to
prohibit would cause a substantial disruption of school activities. Since the school district in
Morse had a well-established policy that prohibited the advocacy of illegal conduct, the forced
removal of the banner by the principal was not equivalent to the viewpoint discrimination practiced in Tinker.
196
206
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expressing their opinions on topics that are normally permissible. The
school district in Tinker outlawed the armbands simply because it was
against the message behind them, not because it was against students
expressing themselves on matters of political significance in general.' 99
In contrast, the school district in Morse did not permit any speech that
advocated illegal conduct. 2 00 The facts in Morse would only be on point
with the facts in Tinker if the school district allowed for the advocacy of
marijuana use, but not cocaine use, and prohibited a sign that read
"Snort Lines 4 Jesus."
VI.
STUDENT SPEECH AFTER MORSE V. FREDERICK
The Supreme Court decided against the student in each of its decisions after Tinker, limiting the reach of Tinker to more narrow circumstances than was originally intended. It also established that a school
district can sometimes censor speech without meeting Tinker's substantial disruption test.201 Nevertheless, since the Court has reaffirmed
Tinker's fundamental holding, while limiting its application in subsequent cases, there must exist situations in which a student can win a free
speech claim against a school district. Because the Court has only taken
cases to reverse lower courts' rulings in favor of students,20 2 it has failed
to provide adequate guidance as to when a student should actually prevail on a free speech claim. The following cases exemplify situations in
which a student should win a free speech claim under Tinker.
199
Id
It is also relevant that the school authorities did not purport to prohibit the wearing of
all symbols of political or controversial significance. The record shows that students
in some of the schools wore buttons relating to national political campaigns, and some
even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the
wearing of armbands did not extend to these. Instead, a particular symbol-black
armbands worn to exhibit opposition to this Nation's involvement in Vietnam-was
singled out for prohibition.
Id.
200 Morse, 551 U.S. at 398 ("The Board specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors.").
201 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (ruling in favor of the school
district even though the school district never demonstrated the articles posed a risk of substantial
disruption); Morse, 551 U.S. 393 (ruling in favor of the school district even though the school
district never demonstrated the banner caused or posed a risk of substantial disruption).
202 See Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) (reversing a Ninth Circuit ruling in
favor of the student); see also Hazelwood, 484 U.S. 260 (1988) (reversing an Eighth Circuit
ruling in favor of the students); Morse, 551 U.S. 393 (reversing a Ninth Circuit ruling in favor
of the student).
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STOP WITH THE EXCEPTIONS
207
The first case is DePinto v. Bayonne BoardofEducation.20 3 In protesting the school district's imposition of a school uniform policy, a pair
of fifth grade students wore buttons that bore the phrase "No School
Uniforms" over a slashed red circle. 20 4 The background of the button
contained a picture of several rows of children wearing the same clothing, which appeared to portray the Hitler Youth, though there were no
swastikas or other Nazi marks of identification present in the photograph. 20 5 The parents sought a preliminary injunction after being told
by the school board that the children would face suspension if they wore
the buttons to school again.2 0 6 The parents argued that the Tinker standard should apply, while the school district argued that the buttons
2 07
should be considered vulgar within the meaning of Fraser.
Rather than deciding whether Tinker or Fraser should apply, this
case should be analyzed under the framework outlined in the cases
above. The First Amendment should protect the students that decide to
wear the buttons. The buttons' criticism of school uniforms was a comment on a matter of political significance, as articulated in Tinker.2 08
Though the imposition of a school uniform policy is not a matter of
national importance on the level of the Vietnam War, a student has the
right to peacefully protest a school policy given that the public school is
a State entity.209 After all, if the students were successful in persuading
DePinto v. Bayonne Bd. of Educ., 514 F. Supp. 2d 633 (D. N.J. 2007).
Id. at 636.
205 Id. This Note states that the buttons "appeared" to be of the Hitler Youth to follow the
Court's characterization. The Court used the word "appear," due to the lack of any clear identifying marks as stated above. Id. at 635. The Court takes the position that the photograph was
of the Hitler Youth, since the children's parents did not contest the claim that the photograph
on the button was of the Hitler Youth. Id. This Note, therefore, bases its analysis on the fact
that the photograph on the button's background was of the Hitler Youth.
203
204
206
207
Id
Id. at 640. The Court, after an exhaustive review of relevant Supreme Court and U.S.
Courts of Appeals decisions, held the Tinker analysis should apply and granted the injunction
because of the belief that the plaintiffs would likely succeed on the merits under a Tinker analysis. Id. at 650. However, this case demonstrates the fundamental problem with student speech
cases. As a result of the courts deeming Fraser, Hazelwood, and Morse exceptions to the general
Tinker analysis, the parties spend a considerable amount of time arguing over whether the students' conduct falls within one of the exceptions instead of just applying Tinker to the facts of
every case. By only having one uniform standard, the parties would be forced to apply the facts
of their case to Tinker, rather than arguing over fitting the student's conduct within the most
advantageous standard for their side.
208 See supra Part I.
209 The Court in Tinker expresses approval of a federal district court decision, Hammond v.
South CarolinaState College, 272 F. Supp. 947 (D. S.C. 1967), where the district court judge
208
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enough students, teachers, and other members of the community that
the school uniform policy was wrong, the school board could ultimately
decide to change the district policy. The ability to persuade others in
hopes of bringing about change in governmental policy lies at the very
heart of what the First Amendment protects.21 0 Since the buttons were
expressing a point of view on a matter of political significance,2 1 1 the
school must demonstrate the threat of substantial disruption to school
affairs, as required under Tinker, in order to be able to ban the buttons.21 2 The school was not able to demonstrate any substantial disruption that the buttons had caused or would cause in the future.
Therefore, the students should be entitled to prevail on their First
Amendment claim.
The next case is TA. v. McSwain Union Elementary School.2 1 3 A
student wore a shirt to school that featured the word "abortion" in capital letters, and below it, three squares of approximately three inches in
height.21 4 The first two squares depicted a fetus in progressing stages of
development. The third square was black with the phrase "growing,
growing, gone" underneath.2 1 5 When a faculty member saw the shirt
held unconstitutional the suspension of students at a college for peacefully protesting school
policies. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 513 n.6. (1969).
210 See supra note 62.
211 Because this case can be decided on the grounds that the buttons were expressing an
opinion on a matter of political significance, it is unnecessary to decide whether the school, in
banning the buttons, was discriminating against the students on the basis of their viewpoint. If
a decision on this point was necessary, the students would lose. The school district contended
that its problem with the buttons was not the expression of the opposition to the district's
uniform policy, but the photograph depicting Hitler Youth in the background. DePinto, 514 F.
Supp. 2d at 645. Thus, the school district's problem was not the viewpoint the button took,
but the way in which the button expressed its point of view. There would be no threat of
discipline if the students had merely worn a button saying "No School Uniforms." This is akin
to the facts of Fraser. Matthew Fraser had every right to support his candidate for student
council, but not to make a speech in support, especially after being told by members of the
faculty not to, which contained sexual double entendres inappropriate for the school
environment.
212 This is not meant to say that the buttons would be protected under Tinker if it could be
concluded that they were vulgar, as opposed to simply provocative, just because they were attempting to comment on a matter of political significance. Fraserforecloses this argument. See
supra Part III.
213 T.A. v. McSwain Union Elementary Sch., 2010 WL 2803658 (E.D. Cal. July 16, 2010).
214
Id. at *I.
Id. The shirts were worn as part of the American Life League's Sixth Annual Pro-Life TShirt Day, and the student obtained one from her church. Id. at *1-2.
215
2011]
STOP WITH THE EXCEPTIONS
209
and deemed it inappropriate, the student was taken to the office and
chose to wear a different shirt for the remainder of the day.2 1 6
The school contended that the pictures on the shirt constituted
"inappropriate subject matter" because the pictures were simply "too
graphic" for some of the younger students attending the school.2 1 7 The
student contended that the school was simply suppressing her pro-life
message and that even if the school's actions were not viewpoint based,
no showing of substantial disruption made the speech proscribable.2 1 8
Regardless of whether the school wanted to suppress the student's
pro-life message or simply believed the photos were inappropriately
graphic, 2 19 it would have no bearing on the finding that abortion is a
matter of political significance. Abortion, which continues to be a hotbutton political issue, is clearly a matter of political significance. As
such, students have a First Amendment right to comment on this political issue in schools, as long as their expression does not cause substantial
disruption with school affairs. 2 2 0 Based on their experience, school officials believed the shirt would create a substantial disruption, and thus
regulated it before any disruption could occur.2 2 While school officials
need not wait for a substantial disruption to occur, 2 22 they must be able
216
217
Id. at *2.
Id
218 Id. at *5-6. This opinion was issued in response to the school district's motion for summary judgment. Id. The judge found that the issues of whether the school was merely seeking
to suppress the student's pro-life message and whether there was a risk of substantial disruption
because of the shirt were factually in dispute, and therefore denied the motion for summary
judgment. Id.
219 This, of course, would be highly relevant to whether the school was discriminating on the
basis of viewpoint. If the school found the photos to be too graphic, thus violating a school rule,
then the prohibition would not be considered viewpoint discrimination. The school would not
be trying to suppress the message, but merely regulating the way in which it was disseminated.
However, the plaintiff does not need to rely on viewpoint discrimination to state a claim since
abortion is clearly a matter of political concern.
220 This Note does not assert that no shirt could ever be so graphic as to permit censorship
without a showing of substantial disruption. Rather, it argues that the pictures on the students'
shirt in this particular case were not so inappropriately graphic as to be considered vulgar. A
vulgar shirt could be censored by school officials regardless of the fact that it may be commenting on a matter of political significance. See supra Part III.
221 McSwain, 2010 WL 2803658, at *6.
222 In addition to finding that no substantial disruption occurred, which would support the
ban on the armbands, the Tinker Court examined the school district's arguments as to why a
belief that such a disruption would in fact occur was reasonable, holding "[o]ur independent
examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school
or impinge upon the rights of other students." Tinker v. Des Moines Indep. Sch. Dist., 393
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to show that their fear regarding a substantial disruption is reasonable.2 2 3 In this case, the only other student to see and comment on the
shirt said that it was "cute."224 This hardly amounts to a showing of
substantial disruption necessary for the preemptory action taken in this
case. 2 2 5 Thus, the student should prevail on her First Amendment
claim.
In contrast, there are cases in which a student does not attempt to
comment on a matter of concern, but there is a violation of the student's First Amendment rights. This occurs when the school impermissibly discriminates against the student because of its disagreement with
the student's viewpoint. One such case is Boroffv. Van Wert City Board
ofEducation.2 2 6 In Boroff a student wore a shirt released in conjunction
with a Marilyn Manson album, Antichrist Superstar.22 7 The shirt depicted a three-faced Jesus accompanied by the phrase: "See no truth.
Hear no truth. Speak no truth."2 28 On the back of the shirt was the
U.S. 503, 509 (1969). Thus, the Court indicates the school district in Tinker did not need to
wait for a disruption to occur to ban the armbands if it could make a showing that a disruption
was a probable outcome of a failure to ban them. Id.
223 For example, courts have upheld schools' decisions to ban a form of expression based on a
fear of substantial disruption in cases involving the Confederate flag. See Barr v. Lafon, 538
F.3d 554 (6th Cit. 2008); see also Defoe ex rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010);
A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cit. 2009); B.W.A. v. Farmington R-7 Sch.
Dist., 554 F.3d 734 (8th Cir. 2009). These cases all involve a school district's decision to ban
the display of the Confederate flag after a series of racial incidents at the school. In Barr, the
ban on wearing clothing bearing the Confederate flag was enacted after incidents which "included racist graffiti that made general threats against the lives of African-Americans, graffiti
containing 'hit lists' of specific students' names, physical altercations between African-American
and white students, and a police lockdown at the school." Barr, 538 F.3d at 557. The Director
of Schools "relied upon numerous conversations with students and parents of students which
revealed that students were taunted by the Confederate flag and were fearful for their safety as a
result of the racial tensions" as the basis of the ban. Id. at 560. This is not to say that a school
must always make a showing this strong in order to be able to preemptively ban a form of
otherwise protected expression, but simply provides one showing that a school district has made
which would permit it to preemptively censor speech under Tinker.
224 McSwain, 2010 WL 2803658, at *6.
225 Since the opinion here was only issued in response to a motion for summary judgment,
this Note bases its conclusions on the facts stated as part of the court's denial of summary
judgment. This Note recognizes that as this case proceeds, the school district may come forth
with more evidence that would validate its conclusion that a substantial disruption was likely to
result from the student continuing to wear the shirt. If this occurs, the student's claim would
likely fail.
226 Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465 (6th Cir. 2000).
227 Id. at 467.
228
Id
2011]
STOP WITH THE EXCEPTIONS
211
word "believe" with the letters "LIE" highlighted. 2 2 9 The principal
deemed the shirt "offensive" and in violation of school policy. 230 After
being prohibited from wearing other Marilyn Manson shirts that merely
displayed the artist's picture, the student filed suit. 2 3 1
Because expressing support for Marilyn Manson's music cannot be
considered commentary on a matter of public concern, the student can
prevail on his First Amendment claim only if the student can show that
the school was censoring his speech because the school disagreed with
the student's viewpoint. The school allowed students to wear shirts
referencing other artists and bands, and one student even had Marilyn
Manson patches on his backpack.2 32 The school did not attempt to
make any showing of substantial disruption, arguing that support for
Marilyn Manson was inconsistent with the school's basic educational
mission.2 3 3 In addition to accepting this argument,2 3 4 the Court of Appeals for the Sixth Circuit considered the speech at issue to be vulgar
229
Id
230
231
Id.
Id
232
Id. at 469.
Id. at 469-70. Because this case was decided in 2000, the Court of Appeals for the Sixth
Circuit was able to give credence to the school district's contention that the content of Marilyn
Manson's music was inconsistent with its educational mission and could therefore be banned.
The idea that a school can censor speech merely because the speech is inconsistent with the
school's educational mission was rejected by the Supreme Court in Morse. Therefore, the school
district could not rely on such an argument today. Justice Alito's concurring opinion in Morse
stated the following:
The opinion of the Court does not endorse the broad argument advanced by
petitioners and the United States that the First Amendment permits public school
officials to censor any student speech that interferes with a school's "educational mission." This argument can easily be manipulated in dangerous ways, and I would
reject it before such abuse occurs. The "educational mission" of the public schools is
defined by the elected and appointed public officials with authority over the schools
and by the school administrators and faculty.
During the Tinker era, a public school could have defined its educational mission
to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission.
Morse v. Frederick, 551 U.S. 393, 423 (2007) (Alito, J., concurring).
234 This Note does not dispute that Marilyn Manson's lyrics are offensive to many due to
their violent content and frequent use of profanity. It also does not dispute that if the student's
shirts contained any violent or profane lyrics, the school would be free to prevent the student
from wearing those shirts without running afoul of the First Amendment. In such circumstances, the school would not be discriminating on the basis of viewpoint, but merely regulating
the way the message was disseminated. A student is free to express his support for Marilyn
Manson, but not by using offensive lyrics.
233
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within the meaning of Fraserand asserted that the school could ban the
shirt without any showing of substantial disruption.2 35
However, because Fraser is not a broad general exception to the
Tinker standard, the central issue must be whether the school was engaged in viewpoint discrimination. Vulgarity is certainly relevant to this
determination. A school district has a legitimate interest in censoring
speech that is vulgar, and can do so without discriminating on the basis
of viewpoint. The Supreme Court has indicated as much in Board of
Education Island Trees Union Free School District v. Pico, 23 6 which dealt
with a board of education that removed books from the school library.
The Court stated that,
[i]f [the school board] intended by their removal decision to deny [students] access to ideas with which [the board] disagreed, and if this
intent was the decisive factor in [the board's] decision, then [the
board] ha[s] exercised [its] discretion in violation of the Constitution .
.
..
On the other hand, [the students] implicitly concede that
an unconstitutional motivation would not be demonstrated if it were
shown that [the board] had decided to remove the books at issue because those books were pervasively vulgar. And again, [the students]
concede that if it were demonstrated that the removal decision was
based solely upon the "educational suitability" of the books in question, then their removal would be "perfectly permissible."2 37
Thus, school officials can regulate or censor expression because the
student has attempted to make his point in a manner that is vulgar or
inappropriate in a school setting, without such censorship being considered viewpoint discrimination. Under these circumstances, the school
district would not need to make a showing of substantial disruption to
regulate or censor the speech. However, since the school district was
discriminating against the student because of its disagreement with the
student's support of Marilyn Manson,2 38 and not because the shirts were
235 Boroff 220 F.3d at 469.
Bd. of Educ. v. Pico, 457 U.S. 853 (1982).
236
237
Id. at 871.
The following was Principal Clifton's rationale for banning all Marilyn Manson shirts:
Although I do not know if [Boroffj intends to communicate anything when wearing
the Marilyn Manson t-shirts, I believe that the Marilyn Manson t-shirts can reasonably be considered a communication agreeing with or approving of the views espoused
by Marilyn Manson in its lyrics and those views which have been associated to
Marilyn Manson through articles in the press. I find some of the Marilyn Manson
lyrics and some of the views associated with Marilyn Manson as reported in articles in
238
2011]
STOP WITH THE EXCEPTIONS
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vulgar, the school district must be able to show that the student's
Marilyn Manson shirts either caused or posed a threat of substantial
disruption. The school district clearly failed to meet its burden, since
no incidents occurred at school as a result of the student wearing any of
the shirts.2 3 9
In Lowry v. Watson Chapel School District,24 0 the issue was once
again protest of a school uniform policy. A number of students wore
black armbands to school to protest the policy, which mandated school
uniforms, but permitted other accessories such as jewelry or wristbands
to be worn if those accessories did not cover any part of the school
uniform. 241 The armbands complied with the policy, but the students
were nonetheless disciplined for wearing them.2 4 2 When asked at a preliminary injunction hearing for the reasoning behind this seemingly inconsistent decision, the principal responded that the armbands were "a
direct protest against the school dress policy." 24 3 After being denied
summary judgment, the school district stipulated at trial that:
(1) the discipline imposed on plaintiffs for wearing black armbands to
school on October 6, 2006, was imposed because the black armbands
signified disagreement with the student apparel policy; and (2) the
wearing of the black armbands caused no material disruption or substantial interference with school.2 4 4
These facts clearly demonstrate that the school officials were engaging in blatant viewpoint discrimination. The students were only discithe news and entertainment press offensive to our basic educational mission at Van
Wert High School. Therefore, I believe that all of the Marilyn Manson t-shirts .. . are
offensive to and inconsistent with our educational mission at Van Wert High School.
Boroff 220 F.3d at 469. This demonstrates that the principal disapproved of Marilyn Manson's
music in general, and that this was his rationale in banning the shirts. Therefore, the school was
discriminating against the student because of mere disagreement with his viewpoint, and this
violates the First Amendment under Tinker.
239 Even assuming arguendo that the three-headed Jesus posed a threat of substantial disruption as a provocation to those with deeply-held Christian beliefs, this threat would not extend to
shirts only containing the picture of Marilyn Manson. The school district can in no way show
that the mere mention of Marilyn Manson's name or his picture causes a threat of substantial
disruption that would allow the school to ban any reference to Marilyn Manson.
240 Lowry v. Watson Chapel Sch. Dist., 508 F. Supp. 2d 713 (E.D. Ark. 2007), affd, 540
F.3d 752 (8th Cir. 2008).
241 Lowry, 508 F. Supp. 2d at 715-16.
242
Id.
243
Id. at 722.
Lowry v. Watson Chapel Sch. Dist., 540 F.3d at 757.
244
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plined because the school disagreed with the message of their armbands.
Therefore, the students should succeed on their First Amendment
claim.2 45
CONCLUSION
Judging all claims regarding student free speech made on school
premises by a narrow application of the standard set forth in Tinker
would have one important advantage: clarity, both for courts and school
officials. Currently, when deciding a free speech claim brought by a
student against school officials, lower courts feel compelled to recite the
Supreme Court's decisions in Tinker, Fraser,Hazelwood, and Morse and
proceed to decide which of the four cases should govern the student's
conduct at issue. DePinto v. Bayonne School District is one such
example.2 4 6
In DePinto, the court quickly disposed of Hazelwood and Morse
because there was no suggestion that the buttons, which contained a
background photograph that appeared to depict Hitler Youth, were either sponsored by the school or contained any reference to illegal drug
use. 24 7 The question still remained, however, whether the buttons
should be governed by Tinker, under which the school would need to
None of this discounts what this Note argued above in the DePinto case, namely that
protesting school uniforms is a commentary on a matter of public concern, requiring the school
to prove substantial disruption before being allowed to censor the student's expression. The
students in Lowry are simply able to prevail on both counts because the school officials were
blatantly discriminating because of viewpoint, which would apply regardless of whether the
student's armband was commenting on a matter of public concern.
246 DePinto v. Bayonne Bd. of Educ., 514 F. Supp. 2d 633 (D. N.J. 2007). The court
discussed at considerable length the relevant Supreme Court precedent before finally attempting
to summarize in the following way:
[We distill the following from Tinker, Fraser,and Kuhlmeier. (1) schools have wide
discretion to prohibit speech that is less than obscene-to wit, vulgar, lewd, indecent or
plainly offensive speech; (2) if the speech at issue is "school-sponsored," educators
may censor student speech so long as the censorship is "reasonably related to legitimate pedagogical concerns"; and (3) for all other speech, meaning speech that is
neither vulgar, lewd, indecent, or plainly offensive under Frasernor school-sponsored
under Kublmeier, the rule of Tinker applies. Schools may not regulate student speech
unless it would materially and substantially disrupt classwork and discipline in the
school.
Id. at 639 (citing Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 325 (2d Cir. 2006)). This, of
course, does not even mention Morse, which the court in DePinto goes on to summarize as
add[ing] a third exception to Tinker, allowing a school to censor speech that is 'reasonably
viewed as promoting illegal drug use."' Id.
247 Id. at 640.
245
2011]
STOP WITH THE EXCEPTIONS
215
show substantial disruption, or by Fraser, under which no showing of
substantial disruption would be necessary if the speech were deemed
vulgar or offensive. The DePinto court then spent seven pages determining which standard to apply. 24 8
A narrow application of Tinker to all student free speech claims
would render deciding whether the student's conduct fell under Tinker,
Fraser, Hazelwood, or Morse entirely unnecessary. Lawyers for both the
student and the school district would not need to spend significant portions of their briefs arguing over which case should govern since there
would only be one standard.? 9
The standard would be to first ask whether a student could
demonstrate either: (1) the student's speech was commenting on a matter of political significance; or (2) the school was censoring the student's
speech merely because it disagreed with the student's viewpoint. If the
student could make one of these showings, the burden would shift to
school officials to demonstrate that in order for the student's speech to
be properly censored, it either had caused or would likely cause a substantial disruption with school affairs. If, on the other hand, the student
could not make one of these showings, the school district would be
entitled to summary judgment, without needing to show any substantial
disruption.
Admittedly, if lower courts were to use a narrow application of
Tinker to govern all claims brought by students, there would still be
questions to litigate. The parties may disagree over whether a student
was really commenting on a matter of political concern, whether the
school official was really discriminating on the basis of viewpoint, or
whether the school official was merely seeking to regulate the way in
which the speech was disseminated. However, at the very least, both
parties would agree on which standard courts should apply in any given
case.
The clarity that this new standard would bring would not only
benefit courts, but school officials as well. For school officials, most of
whom are surely not First Amendment scholars, having only one standard govern all student free speech claims would help them understand
Id. at 640-46.
Lawyers argue over which case should govern because often times that determines the
outcome of the case. For example, in DePinto, the school district made no showing as to how
the buttons caused a substantial disruption. Unless the school district was successful in getting
the buttons to be governed under Fraser, the school district would be unable to prevail.
248
249
216
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[Vol.
what they are and are not permitted to do under the law. School officials do have qualified immunity under the law to protect them from
suit, 2 5 0 but perhaps having a readily understandable standard would
help prevent some claims from ever being filed. It is reasonable to assume that school officials would be much less likely to violate a student's clearly established constitutional rights if the law better explained
exactly what First Amendment rights a student possesses. Under a narrow application of Tinker, a school official would know that a student's
speech could be censored regardless of whether it caused a substantial
disruption, as long as the student's speech was not commenting on a
matter of political concern, or it was not censored simply because the
school official disagreed with the student's viewpoint.
This increased clarity in the law may result in less litigation of
student free speech claims for two reasons. First, knowing the one standard that would definitively govern, a lawyer could more easily determine whether a prospective student plaintiffs claim had any merit.
Second, a school official may have less difficulty in determining when
his conduct would violate a student's constitutional rights and thus, refrain from committing the violation. Less litigation involving student
free speech claims against school officials would benefit all concerned.
An already overburdened court system would have fewer cases, and
school officials would not need to take time out of their days to attend
depositions or testify in court. Even students may benefit, since a
clearer standard may result in fewer infringements of students' clearly
established constitutional rights. Courts implementing a narrow application of Tinker to all student free speech claims would strike the appropriate balance between protecting students' constitutional rights from
overreaching by school officials and allowing school officials to maintain
the necessary control over the school environment. Providing school
officials with the necessary control over the school environment serves to
protect students' safety and give students the chance to receive a quality
education, goals we can all get behind.
Wood v. Strickland, 420 U.S. 308 (1975).
[A] school board member is not immune from liability for damages under § 1983 if
he knew or reasonably should have known that the action he took within his sphere of
official responsibility would violate the constitutional rights of the student affected, or
if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.
Id. at 322.
250