DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

SCHOOL LAW
"ISSUE OF THE MONTH"
April 2008

STUDENT FREE SPEECH:
NEW CATEGORIES CONTINUE TO EMERGE

Public school students will always be seeking new ways to express their feelings and points of view. As a result, the courts will continue to be called upon to examine the extent to which student speech is or is not protected by the First Amendment of the U.S. Constitution. In reviewing student expression cases, courts look to the purpose of the speech, the content of the speech, and the impact of the speech. Courts also have identified a number of categories or types of student expression, as well as standards by which to assess whether the speech can be prohibited or limited. The courts continue to expand and develop these categories and standards.

In our September 2007 Issue of the Month, we discussed the most recent student speech case decided by the U.S. Supreme Court, Morse, et al. v. Frederick. In Morse, a group of high school students held up a banner which read "BONG HITS 4 JESUS" while watching the Olympic Torch Relay pass by their school. The school principal recognized that the term "bong hits" referred to smoking marijuana and demanded that the students take the banner down. One student refused and was subsequently suspended from school for 10 days. The student brought suit and the U.S. Supreme Court ultimately ruled that school officials could discipline a student for speech that expresses or promotes illegal drug use.

Among the other categories of student speech previously addressed by the Supreme Court is speech that has a political message. In the 1969 case of Tinker v. Des Moines Independent Community School District, students who were disciplined for wearing black arm bands in protest of the Vietnam War brought suit. The case went to the Supreme Court, which concluded that school officials could not limit a student's right to political expression unless the speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." The "material disruption" aspect of the Tinker ruling is the starting point for examining most student free speech cases. However, where substantial disruption has not occurred, courts may consider the "invasion of the rights of others" aspect of the Tinker ruling. To date, however, the Supreme Court has yet to use that rationale to examine a student speech case.

The Supreme Court expanded student speech restrictions with its 1986 decision in Bethel School District 403 v. Fraser. In Fraser, a student was disciplined for giving a student assembly speech that included lewd sexual metaphors. The student brought suit and the case was eventually heard by the Supreme Court, which ruled that school officials may discipline students for speech that is vulgar, lewd, obscene and plainly offensive, a new category of student speech. Thereafter, in 1988 the Supreme Court had occasion to address another category of student speech, school-sponsored speech, in the case of Hazelwood School District v. Kuhlmeier. In Kuhlmeier, the Court held that school districts could regulate the content of articles published in school-sponsored newspapers.

Another emerging category of student speech, speech that contains a threat, has not yet been addressed by the Supreme Court. However, the Court has previously ruled in other free speech cases that speech which contains a true threat is not protected by the First Amendment. Numerous lower courts have applied this principle and concluded that school districts have wide latitude to take disciplinary action when student speech is reasonably perceived to amount to a realistic threat. For example, in the 2007 case of Ponce v. Socorro Independent School District, the Fifth Circuit Court of Appeals in New Orleans concluded that a student's journal entries which threatened violence against a school were not protected speech. In reaching its decision, the court compared the recent history of school violence in this country to the harm that can result from illegal drug use. As in Morse, the court concluded that the Tinker substantial disruption requirement was not applicable. Other federal courts have used the same rationale to uphold the authority of school officials to discipline students for a variety of threat speech channels, such as a school essay or artwork, or a student's internet blog or website.

Although school officials now generally review student speech situations in terms of these distinct categories, cases also arise that involve speech which seems to overlap among the categories. One such example is the case of Marineau v. Guiles, which involved a student who wore a t-shirt depicting a caricature of President Bush superimposed on the body of a chicken holding cocaine and a martini glass. The student was told he could wear the t-shirt only if the images of cocaine and the martini glass were concealed. The student filed suit, and the lower court upheld the school district's actions. The Second Circuit Court of Appeals in New York reversed the decision, reasoning that the images were part of a political message and did not promote drug or alcohol use. Thus, the Tinker substantial disruption standard applied, and no such disruption had occurred. The school district sought review of the case by the Supreme Court, but the Court declined to hear the case.

As these cases demonstrate, student free speech cases require districts to look carefully at all of the surrounding circumstances when making a determination whether the student expression can appropriately be prohibited or limited. It also is imperative for school districts to have clear dress code and other policies in place, to assure not only that students and parents are aware of the types of student expression which can be regulated, but also that administrators receive training in making judgments about regulating student speech. Should you have any questions about your district's policies or practices related to restrictions on student expression, please feel free to contact this firm.