What are the limits to free speech in schools?

Citing a rule that barred all images displaying drugs and alcohol, an official of a middle school in Vermont told Zachary Guiles in 2004 to remove a t-shirt that called President George W Bush a “chicken hawk,” showed three lines of cocaine, a razor blade and a portrait of the president holding a martini glass.

When Guiles refused, he was sent home; his disobedience was recorded on his permanent record. Guiles sued and won in a district court. In affirming that decision on appeal, the judges of the Second Circuit Court acknowledged:

We sail into the unsettled waters of free speech rights in public schools, waters rife with rocky shoals and uncertain currents.

As Catherine Ross, a professor at the George Washington University Law School, demonstrates in her immensely informative new book, Lessons in Censorship, the judges in Guiles' case were right.

Our nation’s courts, including the Supreme Court, have not provided clear legal standards that can be applied to controversies regarding the free speech rights of schoolchildren. On issues including political speech, hate speech, religious speech and off-campus speech, the courts have left teachers and administrators without adequate guidance to determine whether their decisions meet or violate constitutional standards.

When is student speech censored?

Taking the reader on “a journey through the morass,” Lessons in Censorship examines the foundational Supreme Court cases addressing school speech doctrine and the many and varied decisions of the lower courts. It also looks at actions by school authorities, who too often are not knowledgeable about free speech and are motivated by a desire to maintain order, avoid controversy and minimize criticism from members of the communities they serve.

Drawing on Supreme Court decisions by the Burger, Rehnquist and Roberts courts that retreated from the view that the First Amendment significantly limited the ability of school authorities to censor the speech of students from the 1940s to the 1960s, Ross lays out the basic doctrine as it exists today.

A student’s speech, she indicates, may not be censored (as it had been in Des Moines, Iowa) unless it is reasonably clear that it will ignite significant disruption or collide with the legal rights of others.

The Supreme Court has not provided clear guidelines about free speech rights of schoolchildren.Supermac1961, CC BY

School-sponsored speech, which is very difficult to define but includes student expression in activities such as publications or student council elections that have an educational goal and are supervised by faculty, may be censored for “legitimate pedagogical reasons,” as in the Hazelwood School District v Kuhlmeier case, where articles dealing with pregnant students were deleted from the student newspaper.

And lewd, pro-drug, threatening, defamatory and violence-inciting speech (involving, for example, a nominating speech in a student election which referred to a candidate who is “firm – he’s firm in his pants, he’s firm in his shirt, his character is firm”; or a group of students that unfurled a banner that proclaimed “Bong Hits for Jesus”) may be censored – and the speaker subjected to discipline – unless the speech is demonstrably “political.”

When order takes precedence

Of course, these principles do not cover all cases. And they leave judges in lower courts struggling to strike the right balance between maintaining order and protecting free speech rights in the school context.

According to Ross, all too often, despite the Supreme Court’s rejection of the argument that vulgar speech is always disruptive, order trumps First Amendment protections, as was the case in Bethel School District v Fraser.

And again in 2004, in a case (Posthumus v Board of Education) in which a student called an administrator a “dick,” a judge declared that “insubordinate speech always interrupts the educational process."

In 2007, judges in the Second Circuit affirmed a Connecticut school’s punishment of Avery Doninger for a post from her home computer calling high school administrators “douchebags.” In 2008, the courts let stand disciplinary action taken against ninth grader Alexander Nuxoll, an evangelical Christian, for wearing a t-shirt that read, “Be Happy, Not Gay.”

Ross also demonstrates that many school administrators have censored student speech, even in instances when they could not point to any tangible risk of disruption. One school claimed that it could “punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official, and is deemed offensive by the prevailing authority.”

Two schools in Plano, Texas maintained that elementary school students do not have any First Amendment rights. And in 2011-2012, several schools around the country banned cancer awareness bracelets because they used the word “boobies.”

Important for schools to teach free speech

Given these attitudes and actions, it is not surprising that one public interest organization, The Student Press Law Center, receives about 2,500 requests for assistance each year from students and teachers who believe that they have been subjected to school censorship. Many more incidents, no doubt, go unreported.

As Ross illustrates, striking the right balance between order and free speech will not be easy. But action is urgently needed. A number of steps can and should be taken.

Ross recommends that lower courts provide more concrete advice about student codes. And that appellate courts clarify the law, as it relates, for example, to the line between “expression” and “conduct” and the meaning of “school sponsorship” of speech.

Equally important, school officials can and should, wherever possible, refrain from suppressing speech or taking disciplinary action against students, and, instead, use controversies “as teachable moments.” They might start by helping students understand the difference between personal and official messages and by explaining that permitting speech is not the same as endorsing it.

As Judge Frank Easterbrook has said, if schools cannot teach the foundations of free speech in the United States, one has a right to wonder whether they “can teach anything at all.”

Glenn Altschuler does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.