Student Discipline and Rights Moines, 393 U.S. 503 (1969). In that case, a group of students challenged a school rule that prohibited them from wearing black armbands in protest of the Vietnam war. In finding that the rule violated the students’ First Amendment rights, the U.S. Supreme Court explained that students do not “shed their constitutional rights to freedom of speech or expression at the school house gate.”Although the armbands were not “speech” per se, the Court concluded that they were symbolic “speech”entitled to First Amendment protection because: 1) they were intended to convey a particularized message; and 2) the message could be understood by those who viewed it. The Court then set out a new test for free speech in the school context, holding that school officials may restrict individual student speech only if the speech is likely to cause a material and substantial disruption or interference with school activities. In Tinker, the school authorities were unable to show that the wearing of black armbands would have disrupted the school environment and therefore the rule violated the students’ First Amendment rights. Determining whether speech may be restricted under the Tinker standard requires a very fact specific inquiry. For example, in 1972, school officials in Hamilton County were allowed to prohibit the wearing of confederate flags because the school system had been recently integrated and the school was able to demonstrate that significant racial tensions still existed. Melton v. Young, 465 F.2d 1332 (6th Cir. 1972). In 2000, the Sixth Circuit revisited the confederate flag issue in Castorina v. Madison County Board of Education, 246 F.3d 536 (6th Cir. 2000). In that case, two students were sent home for wearing Hank Williams, Jr. t-shirts that bore a picture of the confederate flag. The Sixth Circuit applied the Tinker standard and remanded the case back to the trial court to determine whether the t-shirts in fact caused any disruption in the school. This case illustrates that unless a school can show evidence of racial tensions or the likelihood of disruption, then restricting the confederate flag today may violate student First Amendment rights.
Lewd or Indecent Speech The Court’s next opportunity to address the free speech rights of students in the school context came with the 1986 case Bethel v. Fraser, 478 U.S. 675. In that case, a student delivered a nominating speech for a fellow student that contained sexual references and implications – comparing the nominee to a part of the male anatomy. The response of the student body was mixed, including embarrassment, hooting, yelling and graphic simulations of the sexual activities to which Fraser alluded. Fraser was suspended for three days for violating the school’s policy against using “obscene, profane language or gestures” and he challenged his suspension in court. The U.S. Supreme Court found that the school’s actions did not violate Fraser’s First Amendment free speech rights. Specifically, the Court held that school officials have every right to limit vulgar, obscene or lewd speech that is inconsistent with the school’s educational mission. As the Court stated: “While public school students have the right to advocate unpopular and controversial views in school, that right must be balanced against the school’s interest in teaching socially appropriate behavior.”
School Law
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