The Decline of Student Rights

A. Tinker v. Des Moines Independent Community School District

In 1969, the U.S. Supreme Court extended substantial First Amendment protection to public school students in Tinker v. Des Moines Independent Community School District.¹¹ The case began in December 1965 when a group of adults and students in Des Moines decided to protest United States involvement in Vietnam.¹² Several students, including John Tinker, Mary Beth Tinker and Christopher Eckhardt, wore black armbands to school.¹³

School officials learned of the armband plan and quickly passed a no-armband rule.¹⁴ The students went ahead and wore the armbands.¹⁵ School officials subsequently suspended them.¹⁶ The three students sued in federal court, contending that the school officials infringed their First Amendment right to engage in symbolic speech.¹⁷

A federal district court dismissed the complaint.¹⁸ The Court of Appeals for the Eighth Circuit considered the case en banc and was equally divided.¹⁹ On appeal, the Supreme Court reversed on a seven-two vote.²⁰ Justice Abe Fortas wrote the oft-cited language that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."²¹

The majority noted that the school officials could point to no evidence that the wearing of the armbands would disrupt the school environment.²² Justice Fortas wrote "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."²³

The Court established what has become known as the Tinker Rule: "[T]he record does not demonstrate any facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred."²⁴

Legal commentators have considered Tinker as the high-water mark of student First Amendment rights.²⁵ Unfortunately, the Supreme Court has limited students' constitutional rights.²⁶

B. Chipping Away at Tinker

The decline of student rights began with a Fourth Amendment decision, New Jersey v. T.L.O.²⁷ The High Court relaxed the high level of individualized suspicion normally required to search a person.²⁸ "It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject."²⁹ The High Court determined that the probable cause standard required for searches of adults could be reduced to a general reasonableness standard.³⁰

The next year, the Supreme Court applied a relaxed standard for student constitutional rights in Bethel School District No. 403 v. Fraser.³¹ In Fraser, the High Court ruled that public school officials did not violate the First Amendment rights of a student who gave a speech before the school assembly that was laced with sexual references.³²

Matthew Fraser argued that his speech should receive as much protection as the black armbands in Tinker.³³ A majority of the Court disagreed, finding that Fraser's vulgar speech paled in comparison to the political speech at issue in Tinker.³⁴ "[I]t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," the Court wrote.³⁵ The Court cited T.L.O. for the proposition that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."³⁶ Other courts apply Fraser to any type of vulgar student speech, whether school-sponsored or student-initiated.³⁷

The chipping away of Tinker came full circle in the High Court's 1988 decision in Hazelwood School District v. Kuhlmeier.³⁸ In Kuhlmeier, an assistant school principal pulled two student articles from the school newspaper, "The Spectrum."³⁹ One article dealt with teen pregnancy and the other addressed teens' reactions to divorce.

The High Court distinguished between the school-sponsored speech in Kuhlmeier from the student-initiated speech in Tinker.⁴⁰ The High Court determined that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are related to legitimate pedagogical concerns."⁴¹

Legal commentators decried the Kuhlmeier decision as taking away the protections of Tinker.⁴² If student expression is considered student-initiated, the Tinker standard of substantial disruption applies. If the student expression is school-sponsored, then Kuhlmeier applies.⁴³ However, both the Tinker and Kuhlmeier standards apply to student expressive conduct that occurs on school campus. Therefore, if a student created inappropriate material on the school's web server as part of a class project, the Kuhlmeier standard would apply. If a student distributed a hard copy of his online material at school, then the Tinker standard would apply, just as courts have applied the Tinker standard to underground student newspapers.⁴⁴

The issue remains as to what standard should apply to student Internet website speech that is not created using school computers nor is distributed at school by the creator of the content. At least three federal courts applied the Tinker standard even to off-campus student speech created on the Internet.⁴⁵ Some commentators believe that school officials have no authority to shut down a student website. "It's quite a leap from Kuhlmeier to shutting down a Website. There is no legal justification for censoring a student's expression in the privacy of his home."⁴⁶

C. Off-Campus Student Conduct

Some courts have argued that school officials simply do not possess any authority to regulate off-campus student expressive conduct.⁴⁷ In Smith v. Klein,⁴⁸ a federal district court in Maine determined that school officials did not have jurisdiction to punish a student who gave an inappropriate gesture to a teacher off campus.⁴⁹

"The conduct in question occurred in a restaurant parking lot, far removed from any school premises or facilities at a time when teacher Clark was not associated in any way with his duties as a teacher," District Judge Gene Carter wrote.⁵⁰ Judge Carter emphasized that "the student was not engaged in any school activity or associated in any school activity or associated in any way with school premises or his role as a student."⁵¹ The judge concluded that any connection between the student's disrespectful act to the orderly operation of the school was "too attenuated."⁵²

In Thomas v. Board of Education, Granville Central School District,⁵³ the Court of Appeals for the Second Circuit ruled that school officials did not have the authority to punish students who published an underground paper called "Hard Times."⁵⁴ The publication contained numerous articles on sexual subjects, such as masturbation and prostitution. It also parodied school officials.⁵⁵

However, the publication was created largely by students off campus and was sold off campus.⁵⁶ The appeals court characterized the use of school facilities to create the paper, such as a typewriter, as "scant and insignificant."⁵⁷

The court of appeals noted that school officials must be given latitude to carry out their educational responsibilities. However, the court wrote, "our willingness to defer to the schoolmaster's expertise in administering school discipline, rests, in large measure, upon the supposition that the arm of authority does not reach beyond the schoolhouse gate."⁵⁸ "Here because school officials have ventured out of the school yard and into the general community where the freedom accorded expression is at its zenith their actions must be evaluated by the principles that bind government officials in the public arena."⁵⁹

The Second Circuit noted that if schools could punish students for off-campus expression, then the school could punish a student for watching an X-rated film at home or for purchasing a dirty magazine at a local store.⁶⁰ The court concluded "[w]hile these activities are certainly the proper subjects of parental discipline, the First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon."⁶¹

The court did seem to leave open the possibility that school officials could discipline students who "incite substantial disruption within the school from some remote location."⁶²