Government as Educator.

Although the Court had previ-ously made clear that students in public schools are entitled to some constitutional protection,828 as are minors generally,829 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.830 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 Vietnam. 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 schoolhouse 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.”831 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.”832

The Court reaffimed Tinker in Healy v. James,833 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 implicit in the First Amendment. 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. Furthermore, the Court wrote, “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.”834 A college administration may, however, impose a requirement “that a group seeking offical recognition affirm in advance its willingness to adhere to reasonable campus law.”835

Although 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 discrimination 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.836

While it is unclear whether this holding would extend 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 a school’s neutrality toward religion,837 Congress has done so by statute.838 On the other hand, a public university that imposed an “accept-all-comers” policy on student groups as a condition of receiving the financial and other benefits of official school recognition did not impair a student religious group’s right to expressive association, because the school’s policy was reasonable and viewpoint neutral.839

When faced with another conflict between a school system’s obligation to inculcate community values in students and the free-speech 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.840 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-speech 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, and excluding the question of the acquisition of books as well as questions of school curricula, the plurality held a school board constitutionally disabled from removing library books in order to deny access to ideas with which it disagrees for political reasons.841 The four dissenters rejected the contention that school children have a 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.842 The decision provides little guidance to school officials and to the lower courts and may necessitate a revisiting of the controversy by the Supreme Court.

The Court distinguished Tinker in Hazelwood School District v. Kuhlmeier,843 in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only “reasonably related to legitimate pedagogical concerns.”844 “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.”845 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.”846 Because no public forum had been created, school officials could maintain editorial control subject only to a reasonableness standard. Thus, a principal’s decision 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 traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”847 Because most primary, intermediate, and secondary school environments are tightly structured, with few opportunities for unsupervised student expression,848 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.849

In Morse v. Frederick,850 the Court held that a school could punish a pupil for displaying a banner that said, “BONG HiTS 4 JESUS,” because these words could reasonably be interpreted as “promoting illegal drug use.”851 The Court indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.”852 Justice Alito, joined by Justice Kennedy, wrote a concurring opinion stating that they had joined the majority opinion “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’ ”853 As Morse v. Frederick was a 5-to-4 decision, Justices Alito and Kennedy’s votes were necessary for a majority and therefore should be read as limiting the majority opinion with respect to future cases.

Governmental regulation of 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.854


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). [Back to text]
In re Gault, 387 U.S. 1 (1967). Of course, children are in some respects subject to restrictions that could not constitutionally be applied to adults. E.g., Ginsberg v. New York, 390 U.S. 629 (1968) (access to material deemed “harmful to minors,” although not obscene as to adults). [Back to text]
393 U.S. 503 (1969). [Back to text]
393 U.S. at 506, 507. [Back to text]
393 U.S. at 509 (quoting 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). [Back to text]
408 U.S. 169 (1972). [Back to text]
408 U.S. at 180–81 (internal quotation marks omitted). [Back to text]
Healy v. James, 408 U.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, he did not think that cases the Court cited that had arisen in the latter situation were controlling. Id. at 201. See also Grayned v. City of Rockford, 408 U.S. 104 (1972), in which the Court upheld an anti-noise 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. [Back to text]
Widmar v. Vincent, 454 U.S. 263 (1981). To permit access by religious groups does not violate the Establishment Clause, and, even if the Missouri Constitution “has gone further than the Federal Constitution in proscribing indirect state support for religion, . . . the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well.” Id. at 275–276. [Back to text]
454 U.S. at 274 n.14; see Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981). [Back to text]
By enactment of the Equal Access Act in 1984, Pub. L. 98–377, title VIII, 98 Stat. 1302, 20 U.S.C. §§ 407174, Congress applied the same “limited open [public] forum” principles to public high schools, and the Court upheld the Act against First Amendment challenge. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). [Back to text]
Christian Legal Society v. Martinez, 561 U.S. ___, No. 08–1371, slip op. (2010). The Court did not address the more difficult question raised by the school’s written policy, which forbade discrimination, among other things, based on religion or sexual orientation, because the parties stipulated that in practice student groups were required to accept all students who complied with neutral membership requirements (e.g., payment of dues). Id. at 11–12. Thus, the Court did not address whether the application of the narrower written anti-discrimination policies constituted viewpoint discrimination against a student group that required its members to adhere to its religious tenets, including the belief that sexual activity should only occur in the context of marriage between a man and a woman. Id. at 21–23 (Alito, J., dissenting). [Back to text]
Board of Education v. Pico, 457 U.S. 853 (1982). [Back to text]
457 U.S. at 862, 864–69, 870–72. Only Justices Marshall and Stevens joined fully Justice Brennan’s opinion. [Back to text]
The principal dissent was by Justice Rehnquist. 457 U.S. at 904. See also id. at 885 (Chief Justice Burger), 893 (Justice Powell), 921 (Justice O’Connor). [Back to text]
484 U.S. 260 (1988). [Back to text]
484 U.S. at 273. [Back to text]
484 U.S. at 270–71. [Back to text]
484 U.S. at 270. [Back to text]
484 U.S. 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 J. LAW & EDUC. 23 (1989). [Back to text]
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.” 484 U.S. at 274, n.7. [Back to text]
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). [Back to text]
127 S. Ct. 2618 (2007). [Back to text]
127 S. Ct. at 2624. [Back to text]
127 S. Ct. at 2625. [Back to text]
127 S. Ct. at 2636. [Back to text]
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). [Back to text]