CRS Annotated Constitution

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Government as Educator.—While the Court had previously made clear that students in public schools were entitled to some constitutional protection118 and that minors generally were not outside the range of constitutional protection,119 its first attempt to establish standards of First Amendment expression guarantees against curtailment by school authorities came in Tinker v. Des Moines Independent Community School District.120 There, high school principals had banned the wearing of black armbands by students in school as a symbol of protest against United States actions in Viet Nam. Reversing the refusal of lower courts to reinstate students who had been suspended for violating the ban, the Court set out the balance to be drawn. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate. . . . On the other hand, 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.”121 Restriction on expression by school authorities is only permissible to prevent disruption of educational discipline. “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. 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.”122


Tinker was reaffirmed by the Court in Healy v. James,123 in which it held that the withholding of recognition by a public college administration from a student organization violated the students’ right of association, which is a construct of First Amendment liberties. Denial of recognition, the Court held, was impermissible if it had been based on the local organization’s affiliation with the national SDS, or on disagreement with the organization’s philosophy, or on a fear of disruption with no evidentiary support. “First Amendment rights must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case. . . . And, where state–operated educational institutions are involved, this Court has long recognized ‘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.’. . . Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ . . . The college classroom with its surrounding environs is peculiarly the ‘market place of ideas’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”124 But a college may impose reasonable regulations to maintain order and preserve an atmosphere in which learning may take place, and it may impose as a condition of recognition that each organization affirm in advance its willingness to adhere to reasonable campus law.125


While a public college may not be required to open its facilities generally for use by student groups, once it has done so it must justify any discriminations and exclusions under applicable constitutional norms, such as those developed under the public forum doctrine. Thus, it was constitutionally impermissible for a college to close off its facilities, otherwise open, to students wishing to engage in religious speech.126 To be sure, a decision to permit access by religious groups had to be evaluated under First Amendment religion standards, but equal access did not violate the religion clauses. Compliance with stricter state constitutional provisions on church–state was a substantial interest, but it could not justify a content–based discrimination in violation of the First Amendment speech clause.127 By enactment of the Equal Access Act in 1984,128 Congress applied the same “limited open [public] forum” principles to public high schools, and the Court upheld the Act against First Amendment challenge.129

When faced with another conflict between a school system’s obligation to inculcate community values in students and the expression rights of those students, the Court splintered badly, remanding for full trial a case challenging the authority of a school board to remove certain books from high school and junior high school libraries.130 In dispute were the school board’s reasons for removing the books—whether, as the board alleged, because of vulgarity and other content–neutral reasons, or whether also because of political disagreement with contents. The plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” At the same time, the plurality thought that students retained substantial free expression protections and that among these was the right to receive information and ideas. Carefully limiting its discussion to the removal of books from a school library,[p.1093]thereby excluding acquisition of books as well as questions of school curricula, the plurality would hold a school board constitutionally disabled from removing library books in order to deny access to ideas with which it disagrees for political reasons.131 The four dissenters basically rejected the contention that school children have a protected right to receive information and ideas and thought that the proper role of education was to inculcate the community’s values, a function into which the federal courts could rarely intrude.132 The decision provides little guidance to school officials and to the lower courts and assures a revisiting of the controversy by the Supreme Court.

Tinker was distinguished in Hazelwood School Dist. v. Kuhlmeier,133 the Court relying on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need only be “reasonably related to legitimate pedagogical concerns.”134 “The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.”135 The student newspaper had been created by school officials as a part of the school curriculum, and served “as a supervised learning experience for journalism students.” Because no public forum had been created, school officials could maintain editorial control subject only to a reasonableness standard. Thus, a principal’s decisions to excise from the publication an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.

The category of school–sponsored speech subject to Kuhlmeier analysis appears to be far broader than the category of student expression still governed by Tinker. School–sponsored activities, the Court indicated, can include “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. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a tradi[p.1094]tional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”136 Because most primary, intermediate, and secondary school environments are tightly structured, with few opportunities for unsupervised student expression,137 Tinker apparently has limited applicability. It may be, for example, that students are protected for off–premises production of “underground” newspapers (but not necessarily for attempted distribution on school grounds) as well as for non–disruptive symbolic speech. For most student speech at public schools, however, Tinker’s tilt in favor of student expression, requiring school administrators to premise censorship on likely disruptive effects, has been replaced by Kuhlmeier’s tilt in favor of school administrators’ pedagogical discretion.138

Governmental regulation of the school and college administration can also implicate the First Amendment. But the Court dismissed as too attenuated a claim to a First Amendment–based academic freedom privilege to withhold peer review materials from EEOC subpoena in an investigation of a charge of sex discrimination in a faculty tenure decision.139


118 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (flag salute); Meyer v. Nebraska, 262 U.S. 390 (1923) (limitation of language curriculum to English); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (compulsory school attendance in public rather than choice of public or private schools).
119 In re Gault, 387 U.S. 1 (1967) . Of course, children are in a number of respects subject to restrictions which would be impermissible were adults involved. E.g., Ginsberg v. New York, 390 U.S. 629 (1968) ; Rowan v. Post Office Dept., 397 U.S. 728 (1970) (access to objectionable and perhaps obscene materials).
120 393 U.S. 503 (1969) .
121 Id. at 506, 507.
122 Id. at 509. The internal quotation is from Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). See also Papish v. Board of Curators, 410 U.S. 667 (1973) (state university could not expel a student for using “indecent speech” in campus newspaper). However, offensive “indecent” speech in the context of a high school assembly is punishable by school authorities. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding 2–day suspension, and withdrawal of privilege of speaking at graduation, for student who used sophomoric sexual metaphor in speech given to school assembly).
123 408 U.S. 169 (1972) .
124 Id. at 180. The internal quotations are from Tinker, 393 U.S. 503, 506, 507 (1969) , and from Shelton v. Tucker, 364 U.S. 479, 487 (1960) .
125 Healy v. James, 408U.S. at 193 408U.S. at 193. Because a First Amendment right was in issue, the burden was on the college to justify its rejection of a request for recognition rather than upon the requesters to justify affirmatively their right to be recognized. Id. at 184. Justice Rehnquist concurred in the result, because in his view a school administration could impose upon students reasonable regulations that would be impermissible if imposed by the government upon all citizens; consequently, cases cited by the Court which had arisen in the latter situation he did not think controlling. Id. at 201. See also Grayned v. City of Rockford, 408 U.S. 104 (1972) , in which the Court upheld an antinoise ordinance that forbade persons on grounds adjacent to a school to willfully make noise or to create any other diversion during school hours that “disturbs or tends to disturb” normal school activities.
126 Widmar v. Vincent, 454 U.S. 263 (1981) .
127 Id. at 270–76. Whether the holding extends beyond the college level to students in high school or below who are more “impressionable” and perhaps less able to appreciate that equal access does not compromise the school’s neutrality toward religion, id. at 274 n.14, is unclear. See Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981) .
128 Pub. L. No. 98–377, title VII, 98 Stat. 1302 , 20 U.S.C. §§ 4071 –74.
129 Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) . There was no opinion of the Court on the Establishment Clause holding. A plurality opinion, id. at 247–53, rejected Justice Marshall’s contention, id. at 263, that compulsory attendance and other structured aspects of the particular high school setting in Mergens differed so significantly from the relatively robust, open college setting in Widmar as to suggest state endorsement of religion.
130 Board of Education v. Pico, 457 U.S. 853 (1982) .
131 Id. 862, 864–69, 870–72. Only Justices Marshall and Stevens joined fully Justice Brennan’s opinion. Justice Blackmun joined it for the most part with differing emphases. Id. at 875. Justice White refrained from joining any of the opinions but concurred in the result solely because he thought there were unresolved issues of fact that required a trial. Id. at 883.
132 The principal dissent was by Justice Rehnquist. Id. at 904. See also id. at 885 (Chief Justice Burger), 893 (Justice Powell), 921 (Justice O’Connor).
133 484 U.S.260 (1988).
134 Id. at 273.
135 Id. at 270–71.
136 Id. at 271. Selection of materials for school libraries may fall within this broad category, depending upon what is meant by “designed to impart particular knowledge or skills.” See generally Stewart, The First Amendment, the Public Schools, and the Inculcation of Community Values, 18 Law & Educ. 23 (1989).
137 The Court in Kuhlmeier declined to decide “whether the same degree of deference is appropriate with respect to school–sponsored expressive activities at the college and university level.” 484U.S. at 274 484U.S. at 274 n.7.
138 One exception may exist for student religious groups covered by the Equal Access Act; in this context the Court seemed to step back from Kuhlmeier’s broad concept of curriculum–relatedness, seeing no constitutionally significant danger of perceived school sponsorship of religion arising from application of the Act’s requirement that high schools provide meeting space for student religious groups on the same basis that they provide such space for student clubs. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) .
139 University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) .
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