A Taxonomy of Free Expression in Public Schools

Emma Kim*1

I. Introduction

When delivering the opinion in Tinker v. Des Moines Independent Community School District (1969), Justice Abe Fortas said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”2 Since the First Amendment was ratified in 1791, its meaning has evolved through case precedents. The First Amendment promises people the freedom of religion, speech, press, assembly, and petition—essentially freedom of expression.3 There have been numerous cases that focus on students’ rights in public schools and the extent to which the First Amendment protects them.

This Note will focus on Tinker and Hazelwood School District v. Kuhlmeier (1988). Tinker solidified student rights in 1969 when the U.S. Supreme Court issued a ruling protecting students’ rights.4 Almost twenty years later in Hazelwood, the Supreme Court ruled against the students and created a system in which Tinker‘s precedent applied to only certain cases.5 This Note will argue for a new workable standard in regard to freedom of expression in public schools: one that is more clearly defined and less restrictive to ensure consistency in the Court.

II. Inconsistent Precedent

A. Tinker v. Des Moines Independent Community School District

The Court established precedent of students’ right to freedom of expression in Tinker in 1969. In December of 1965, a group of adults and students met to display their objections to the United States’ involvement in Vietnam by wearing black armbands during the holiday season.6 When the principals of the school district learned of the plan, they enacted a policy suspending anyone who wore an armband and refused to remove it.7 Students Christopher Eckhardt, Mary Beth Tinker, and John Tinker wore black armbands to school, and they were suspended until they would remove them.8 The students’ fathers filed a complaint in the United States District Court for the Southern District of Iowa against the school, but it was dismissed.9 When the case reached the Supreme Court, the Court ruled, in a 7-2 decision, in favor of the students. The Court determined that “undifferentiated fear or apprehension of disturbance” did not justify limiting students’ freedom of expression.10 While the armbands could theoretically cause a disturbance, there was no actual evidence that they would. The Court also determined that such conduct “would not materially and substantially [interfere] with the requirements of appropriate discipline in the operation of the school.”11

B. Hazelwood v. Kuhlmeier

Hazelwood was decided in 1988. In 1983, high school students who were part of a journalism class that produced the school’s newspaper, Spectrum, continued their normal routine of submitting page proofs to the school’s principal.12 The principal objected to two articles that the students sought to publish about teen pregnancy and divorce.13 He objected to the first because he believed that the pregnant students could be identified by the text, and he thought some of the references to sexual activity and birth control were inappropriate for younger students.14 In the divorce article, a named student, whose name the journalism teacher deleted in the final version, complained of her father’s conduct, and the principal believed that the parents should be given a chance to respond to the remarks or consent to publication.15 The principal did not believe the paper could be distributed by the end of the year if the necessary changes were made, so the pages that the articles appeared on were cut, including articles he did not object to.16 In a 5-3 ruling, the Court sided with the school district, noting that the Board of Education covered most of the newspaper’s cost.17 Therefore, it was considered a school-sponsored newspaper. In addition, the Court drew from Bethel School District v. Fraser (1986), stating that students’ rights in public schools “are not automatically coextensive with the rights of adults in other settings,”18 and finding that educators are able to exercise control over student speech in school-sponsored expressive activities if their actions are related to “legitimate pedagogical concerns.”19

C. Contrasting Precedents

The precedent set under Tinker established that students’ right to the freedom of expression cannot be suppressed when it is not interfering with the operation of the school; however, Hazelwood established that students’ right to the freedom of expression can be restricted in a school-sponsored activity if there are “legitimate pedagogical concerns.”20 There is a distinction between interference with school operation and pedagogical concerns. The prior promotes stability within a school environment while the latter confines students’ expression to the school’s ideology. These two precedents create an inconsistent standard, which damages students’ freedom of expression. Justice William Brennan Jr. stated in the dissenting opinion of Hazelwood that the decision “erects a taxonomy of school censorship, concluding that Tinker applies to one category, and not another.”21 He goes on to list the three main reasons that the Court sided with the school—an educator’s prerogative to control curriculum, pedological concerns, and the school’s need to disassociate itself from student expression.22 With those, he argues that the first can be addressed with the Tinker precedent, the second is not legitimate, and the third is “readily achievable through less oppressive means.”23 While Tinker was cited often in Hazelwood, its fundamental core was ignored in the final decision. Tinker showed an instance of “pure speech”24 that did not disturb school operations. If the same precedent had been applied to Hazelwood, the student-run newspaper would have been seen as pure speech, and the two articles would not have disturbed school operations.

III. New Workable Standard

A. How Hazelwood Concerns Can Be Addressed

There are three areas of Hazelwood to be addressed—whether school-sponsored activities should coincide with limited free speech, whether the articles posed legitimate pedagogical concerns, and whether there is a way for schools to disassociate from student expression. The newspaper was school-sponsored, but the fact that a forum is school-sponsored should not give schools an automatic authority to censor the forum’s speech. While the school district covered the majority of the costs,25 the newspaper was meant to be student-run and therefore show the students’ viewpoints. The school’s newspaper was the main public forum for students to show their opinions and practice their freedom of press if they were inclined to join the journalism class. The Court determined that the newspaper was not a legitimate public forum because it was not open “for indiscriminate use by the general public.”26 However, student journalists at the Spectrum had a Statement of Policy that stated, “Spectrum, as a student-press publication, accepts all rights implied by the First Amendment.”27 The newspaper was not just part of a regular class but also a “forum established to give students an opportunity to express their views while gaining an appreciation of their rights and responsibilities under the First Amendment to the United States Constitution.”28 The Eighth Circuit, which ruled with the students, argued that the newspaper was a public forum because it was “intended to be and operated as a conduit for student viewpoint.”29

Even with the newspaper being school-sponsored, there is the question of whether the two articles caused legitimate pedagogical concerns. While the school deemed the articles to be of pedagogical concern, teen pregnancy and divorce are very relevant and pertinent to high school students. In Tinker, the conflict in Vietnam, and opposition to it, was a contentious topic, but it was fully applicable at the time. The privacy concerns for the students in the teen pregnancy article seem irrelevant since they consented to their stories being told, and while some of the material might have been deemed inappropriate for younger readers, the topic was not something that was a legitimate pedagogical concern since the material was relevant for all high school students. In the divorce article, the issue of privacy was resolved by taking out the student’s name. The principal believed there was no time to make the necessary changes;30 however, the divorce article’s problem was easily resolved before its publication by the teacher.

Overall, the articles posed no threat to the school’s pedagogy, and the school could have disassociated themselves from the newspaper altogether. Even though it was considered school-sponsored due to board payment, the school could have repudiated the views and opinions addressed in the newspaper. The newspaper itself could also have stated in an editorial that “this does not express the views of the school district.” As Justice Brennan noted, “The First Amendment permits no such blanket censorship authority.”31 He also argued that Hazelwood could have been resolved by not abandoning Tinker,32 and instead, that Tinker just needed to be applied. Under Tinker, the school could censor things that would materially disrupt the curricular purpose.33 Testimony showed that the principal censored the articles because of concerns that the students “had not sufficiently mastered those portions of the . . . curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals . . . and ‘the legal, moral, and ethical restrictions imposed upon journalists. . . .’”34 Therefore, the articles were censored because of the students’ lack of journalistic knowledge, but they were never given a chance to redress the concerns about their work.35 Overall, Justice Brennan argued that there were many “less oppressive alternatives” to rectifying any of the issues that the principal found, and he believed that the Court not acknowledging them was approving of “brutal censorship.”36

B. New Workable Standard

A new workable standard should incorporate Tinker while reframing Hazelwood. School-sponsored activities, such as student-run newspapers, should be given a chance to disassociate themselves from the school before any speech restrictions take place. Even further, material that merely opposes the official views of the school, without being inappropriate, offensive, or dangerous, should be protected under the First Amendment. When students are given a platform to express their views, they should not be censored at the whim of public school administrators. The standard of “legitimate pedagogical concerns” is not clearly defined and gives school administrators the power to censor what they deem not fit for their educational mission. In the dissenting opinion of Hazelwood, Justice Brennan stated:

But [censorship to shield the audience or disassociate the sponsor] in no way furthers the curricular purposes of a student newspaper unless one believes that the purpose of the school newspaper is to teach students that the press ought never report bad news, express unpopular views, or print a thought that might upset its sponsors. Unsurprisingly, Hazelwood East claims no such pedagogical purpose.37

Students’ right to the freedom of expression should not be restricted in such a wide-reaching manner, and a new standard should allow for free expression from students, only drawing on Tinker and Bethel. As long as students’ expression is not interfering with school operations and it is not “lewd and indecent speech,”38 students should have the right to express their viewpoints within the school, even in school-sponsored activities.

IV. Conclusion

Tinker has had lasting effects concerning the extent to which the First Amendment applies to students in public schools. Hazelwood also did, including farther-reaching implications in a collegiate setting, even though the Court denied commenting on Hazelwood’s application at the college and university level.39 With such an important precedent, there should be nothing left open to interpretation. The taxonomy of Tinker and Hazelwood has created a series of cases that apply one but ignore the other. This inconsistency creates an unfair and unclear system, and it does not fully let the First Amendment protect students’ rights. Instead, it restricts students in certain cases when Hazelwood’s precedent is deemed more applicable than Tinker‘s. By setting a new precedent of applying the First Amendment in a fair and consistent manner, students will be given back part of their freedom of expression that was taken away from them in 1988.

  1. *B.A. Candidate for Economics, Fordham College at Rose Hill, Class of 2025. Thank you to the Fordham Undergraduate Law Review Editorial Board for their support and help in completing my first Note.
  2. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
  3. U.S. Const. amend. I.
  4. Tinker, 393 U.S.
  5. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 281 (1988).
  6. Tinker, 393 U.S. at 504.
  7. Id.
  8. Id.
  9. Id.
  10. Id. at 508.
  11. Id. at 505 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
  12. Hazelwood, 484 U.S. at 263.
  13. Id.
  14. Id.
  15. Id.
  16. Id. at 264.
  17. Id. at 262.
  18. Id. at 266 (quoting Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)).
  19. Id. at 273.
  20. Id.
  21. Id. at 281 (Brennan, J., dissenting).
  22. Id. at 282 (Brennan, J., dissenting).
  23. Id. at 283 (Brennan, J., dissenting).
  24. Tinker, 393 U.S. at 505.
  25. Hazelwood, 484 U.S. at 262.
  26. Id. at 267 (quoting Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 47 (1983)).
  27. Id. at 269.
  28. Id. at 277 (Brennan, J., dissenting).
  29. Hazelwood Sch. Dist. v. Kuhlmeier, 795 F.2d 1368, 1372 (8th Cir. 1986).
  30. Hazelwood, 484 U.S. at 263.
  31. Id. at 280 (Brennan, J., dissenting).
  32. Id. at 283 (Brennan, J., dissenting).
  33. Id. at 284 (Brennan, J., dissenting).
  34. Id. at 276.
  35. Id. at 285 (Brennan, J., dissenting).
  36. Id. at 289 (Brennan, J., dissenting).
  37. Id. at 284 (Brennan, J., dissenting).
  38. Bethel, 478 U.S. at. 685.
  39. Hazelwood, 484 U.S. at 273 n.7.