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From
Tinker to “Bong”: The School Bell Tolls for Student Rights The
two cases, divided by almost four decades and a few military conflicts,
reflect the ebb and flow of the rights of students as advocates within
the educational process. As the tides have rolled in and out, litigants
and their lawyers have had to navigate through the rocky shoals of
1st Amendment law as applied to educational institutions throughout
the country, including Minnesota. While there has not been a tsunami
of these cases in this jurisdiction, the federal and state courts
in Minnesota have witnessed some sea changes in the doctrine affecting
student rights of freedom of expression over the years. The
return to school this fall of some 50 million students, including
nearly a million in Minnesota, and the commencement of the new term
of the Supreme Court, provide an opportune occasion to examine the
1st Amendment rights of students, from the high water mark in Tinker
to its recent ebb in Morse. The
Tinker case reached the
high court at the zenith of the Court’s leadership by Chief Justice
Earl Warren. It was a period marked by decisions that were clearly
and continuously more liberal in expanding constitutional rights than
in any other era. But
the ethos was notably different in the Morse
case, in which the Court, by a 5-4 margin, ruled that a high school
student in Alaska was properly suspended for exhibiting a banner at
a school-sponsored event proclaiming “BONG HiTS
4 JESUS,” a phrase that the school principal deemed to denote illegal
drug use. The majority opinion, written by Chief Justice John Roberts,
viewed the perceived promotion of illegal drug use as a “serious”
charge, which “[t]he First Amendment does not require schools to tolerate.”
But
four jurists dissented, all pointing to Tinker
for the principle that “protects students speech.” Justice John Paul
Stevens, in his dissent, found the message on the unfurled banner
to be innocuous “dumb advocacy.” Paying homage to Tinker
terminology, the oldest jurist on the Court observed that students
“do not shed their brains at the schoolhouse gate.”4 Newspaper Nuances Minnesota
has had its share of student 1st Amendment rights litigation cases
during the nearly four decades between Tinker
and Morse. A number of the
Minnesota cases involving a student’s rights to freedom of expression
have involved the nuances of student newspapers The
editors of The Minnesota Daily,
the student newspaper at the University of Minnesota, successfully
challenged the school’s tinkering with the method of funding of the
publication on 1st Amendment grounds in Stanley
v. McGrath, 719 F.2d 279 (8th Cir. 1983). The newspaper’s funding
mechanism, which included mandatory student fees, was altered to allow
students to opt-out of paying the fees after the newspaper published
a controversial “Finals Week” edition at the end of the school year.
The offending edition criticized university officials and included
crude language and satirical pieces that were deemed by some to be
vulgar and sacrilegious. Reversing
a ruling of U.S. District Court Judge Robert Renner in Minnesota,
the 8th Circuit held that the decision to alter the funding arrangement,
thereby reducing the revenue available to the newspaper, had been
motivated by the contents of the publication, which violated the 1st
Amendment. The Court pointed to statements by members of the university’s
Board of Regents and the university president reflecting that the
“Daily’s contents was also
on the Board’s collective mind,”5 which constituted strong evidence
the Regents were reacting to the contents of the paper and to the
disapproval that others expressed of those contents. This motivation
constituted an impermissible regulation of freedom of expression of
the students on the newspaper staff. The
decision in the Stanley
case clashed with a subsequent ruling of the United States Supreme
Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), in which the Court again
reversed a ruling of the 8th Circuit.6 This time the high court upheld
the authority of a high school principal to bar publication in the
student newspaper of a pair of articles, which he deemed offensive,
regarding pregnancy and divorce. While paying homage to the Tinker
rationale, the Court upheld the principal’s right to censor the newspaper
because the case was “different from the question [in Tinker] where the First Amendment required the school affirmatively
to promote particular student speech.”7 The Court reasoned that the
high school newspaper is “part of the school curriculum … designed
to impart particular knowledge or skills to student participants and
audiences.”8 Because of the right of school administrators to “exercise
greater control” over student curriculum, their action was appropriate
“to assure that participants learn whatever lessons the activity is
designed to teach [and] that readers or listeners are not exposed
to material that may be inappropriate for their level of maturity.”9 While
the Hazelwood case was pending
before the high court, the 8th Circuit granted school officials in
Fridley broad authority to prohibit distribution on school grounds
of an underground student newspaper that did not comply with school
policies regarding distribution of unsanctioned, unofficial written
material on school premises in Bystrom v. Fridley High School, 822 F.2d 747 (8th
Cir. 1987). Vacating a decision by Judge Renner, the appellate court
held that the school’s policy was not unconstitutional and its guidelines
prohibiting distribution of material that was indecent or vulgar were
not unconstitutionally vague or overbroad. While not endorsing the
policy as “wise or advisable,” the court left it to “school boards
and administrators to decide whether to attempt to write and apply
similar guidelines”10 which do not, on their face, violate
the 1st Amendment. But the case was remanded to require deletion of
one guideline from the policy that referred to invasion of privacy
or endangering the “health or safety of another person” because attempts
to “proscribe speech” of that nature are impermissible.11 The
Minnesota Court of Appeals, ruling in Lewis
v. St. Cloud State University, 693 N.W.2d 466 (Minn. App. 2005)
(rev. denied Minn. 06/14/05), held that
the university was immune from lawsuits for defamation in its student-run
publications. The libel lawsuit was brought by a faculty member, who
claimed he was libeled by the student newspaper, against St. Cloud
State University—a member of the Minnesota state college and university
system (MnSCU). The state and MnSCU were
held immune based on the MnSCU policy prohibiting
censorship of student newspapers by school officials. The institution
could not be sued for libel because, “unlike a private publisher,
[it has] no control over the content” of the campus publications. But
a high school principal’s proscription of a student’s wearing a sweatshirt
carrying the message “Straight Pride” was enjoined as a violation
of the student’s 1st Amendment rights by U.S. District Court Judge
Donovan Frank in Chambers v. Babbitt, 145 F. Supp.2d 1068
(D. Minn. 2001). Applying the four-part balancing test for injunctive
relief, Judge Frank granted a preliminary injunction against the prohibition.
Applying Tinker-like reasoning, he noted that there
was no “substantial disruption of or material interference with school
activities”12 associated with the student’s wearing the shirt, which
made the principal’s conduct constitutionally infirm. But Judge Frank
added some avuncular advice, urging the students, parents, administrators,
and other members of the school community “to resolve these issues
within their community, rather than the court, if the best interests
of all students and children … are to be served.”13 Violence Views The
1st Amendment rights of students have occasionally been viewed by
the courts in this jurisdiction in light of potential violence. In
Pratt v. Independent School District No. 831, Forest Lake, 670 F.2d
771 (8th Cir. 1982), the 8th Circuit affirmed a ruling of U.S. District
Court Judge Miles Lord, barring removal of the film “The Lottery”
from the high school curriculum. The cinema, a version of an allegorical
short story in which an insular community selects one person to be
stoned to death each year, was suppressed by the school board because
of opposition from parents in Forest Lake, who objected to “violence”
allegedly in the film and its purported impact on students’ religious
and family values. The
court, however, condemned censorship of the film, finding that the
board’s objection to the film had “religious overtones” and that the
film had been banned because of “ideological content.” Forbidding
the viewing of the film on these grounds constituted a violation of
1st Amendment rights of the students because no “substantial reasonable
governmental interest exists for interfering with the students’ right
to receive information.”14 Although
the movie was not a “comforting film,” what was “at stake is the right
[of students] to receive information and to be exposed to controversial
ideas—a First Amendment right.” Banning the film because of opposition
to its ideological theme would establish an unfavorable “precedent
… for removal of any such work” from a school curriculum, which would
be constitutionally impermissible.15 Also
rejecting a claim of violence, the 8th Circuit upheld the rights of
faculty members at the Duluth campus of the University of Minnesota
(UMD) to display pictures of themselves posed with military weapons
as part of a display of faculty photographs in Burnham
v. Ianni, 119 F.3d 668 (8th Cir. 1997). The school barred
the photographs on grounds of their violent tenor, a decision that
the court deemed to be violative of the
principle under the 1st Amendment that “generally prevents the government
from proscribing speech of any kind simply because of disapproval
of the ideas expressed.”16 But
the 8th Circuit, in a decision out of Arkansas, upheld expulsion of
an 8th grader because of certain writings he composed that allegedly
threatened a classmate in Doe
v. Pulanski County Special School District,
306 F.3d 616 (8th Cir. 2002) (en banc). The document described how
the writer anticipated raping and murdering a classmate. Its content
and tone would be viewed as threatening by a reasonable recipient,
which negated any 1st Amendment rights on the part of the student
who prepared the document. Noting the growing trend of student violence,
the court concluded that because the letter constituted a “true threat,”
disciplinary action was not violative of
any 1st Amendment rights of freedom of expression. Whether the expulsion
lacked “wisdom or compassion” was not a decision for the courts to
make but is “best left to the voters who elect the school board.”17 Student Summary The
issues raised in these cases, from Tinker
to Morse, are hardly academic.
They not only involve the rights and responsibilities of students,
but they also affect faculty, administrators, and additional school
personnel, along with other members of the academic community. While
the Constitution may not stop at the “schoolhouse gate,” as was stated
in the memorable mantra in Tinker,
litigants, the bar, and the bench are continually refining the contours
of permissible student advocacy consistent with other vital concerns. As
these cases illustrate, there is a great deal of fluidity in the flow
of the 1st Amendment rights of students. The volatility in the case
law make it difficult to predict how the law will evolve as it progresses
from Tinker to Morse to chance.
2
Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 505 (1969). 3 Id., at 515 (Black, J.). 4 Morse v. Frederick,
127 S.Ct. 2618, 2644 (2007) (Stevens, J.). 5 Stanley v. McGrath,
719 F.2d 279, 283 (8th Cir. 1983). 6 Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368
(8th Cir. 1986). 7 Hazelwood School District
v. Kuhlmeier, 484 U.S. 260, 270-71 (1988). 8 Id. at 271. 9 Id. 10 Bystrom v. Fridley High School, 822 F.2d 747,
755 (8th Cir. 1987). 11 Id. at 753-54. 12 Chambers v. Babbitt, 145
F. Supp.2d 1068, 1071 (D. Minn. 2001). 13 Id. at 1074. 14 Pratt v. Independent
School District No. 831, Forest Lake, 670 F.2d 771, 777 (8th Cir.
1982). 15 Id. at 779. 16 Burnham v. Ianni,
119 F.3d 668, 674 (8th Cir. 1997). 17 Doe v. Pulanski County Special School District, 306 F.3d 616, 627 (8th Cir. 2002) (en banc). Morse v. Frederick—the “bong” case—was one of a series of cases before the Supreme Court
during the 2006-07 term dealing with students and educational issues.
In Zuni Public School Dist. No. 89 v. Dept. of
Education, 127 S.Ct. 845 (2006), the
high court held that the secretary of the Department of Education
may consider the number of pupils in a school district as well as
the district’s per-student expenditures in allocating funds under
the Federal Impact Aid Program, 20 U.S.C. §7702 et seq. In Winkelman
v. Parma City Sch. Dist., 126 S.Ct.
2057 (2006), parents of a disabled child were allowed to pursue a
claim under the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. §1400, because the statute gave them an “independent” right
to sue on their own behalf. In Parents Involved in Community Schools v. Seattle
School Dist. No. 11, 127 S.Ct. 544 (2006), a pair of consolidated
cases, the Court struck down public school student enrollment plans
based on racial considerations in an attempt to combat de facto segregation,
holding that the race-based programs violate the Equal Protection
Clause of the 14th Amendment. Two
other cases dealt with 1st Amendment rights, but not those of students.
In Davenport v. Washington Ed. Assn., 27 S.Ct. 2450 (2007), the justices upheld a state law requiring
a public sector teachers union and other public sector labor organizations
to receive “affirmative authorization” from dues-paying nonmembers
to spend their fees for election-related purposes. The Court held
that the measure did not violate the 1st Amendment associational and
expressive rights of the union or its members. In Tennessee
Secondary School Athletic Assn. v. Brentwood Academy, 127 S.Ct.
1927 (2007), a measure prohibiting high school coaches from recruiting
students from middle schools was upheld because the proscriptive restriction
did not transgress the 1st Amendment right of coaches. |
