20th Century in the United

¶ … 20th century in the United States, the struggle to balance the First Amendment rights of students with the educational institutions' need to maintain a safe and orderly environment has been a constant source of difficulty. Circuit courts, Appellate courts, and even the United States Supreme Court have heard cases in which students, fearing the revocation of their rights, have challenged the educational institutions. In contrast, the institutions have sought, through the judicial system, an affirmation of their rights as educators to maintain control and balance, particularly in light of growing violence within the school systems.

While the courts have certainly clarified many of the laws regarding student's rights, the struggle to balance the issues remains constant.

Before analyzing the issues, it is imperative first to understand the Amendment in question. The First Amendment to the United States Constitution reads, as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (U.S. Const., Amendment 1).

Simply put, the First Amendment seeks to protect the right of all persons to practice any religion, speak freely of their beliefs, assemble in groups, understanding that those groups must be peaceful in nature, and to petition the government when needed. Additionally, the First Amendment seeks to maintain freedom of the press, to ensure that the press is free to publish and write about whatever topics in whatever form they feel necessary.

In dealing with so many protected freedoms, set forth in such a broad manner, there are bound to be difficulties with interpretation and enforcement. As early as 1943, in West Virginia Sate Board of Education v. Barnette (1943), the issue of First Amendment rights violations was brought to a national level. In the Barnette case, a group of Jehovah's Witnesses sued in the United States District Court on behalf of their children, and other children in West Virginia. A previous court decision had inspired the Board of Education of West Virginia to order that saluting the flag become a "regular part of the program of activities in...public schools" and that all students were required to participate. Refusal to salute would result in expulsion of the student.

However, due to their religious beliefs that the flag was a "graven image," and that saluting the flag would be in violation of God's commands, the Jehovah's Witness members sought to avoid the forced expulsion upon their refusal to salute. The Supreme Court found in favor of the students, noting that the First Amendment protected the student's rights to dissent. In their decision, the Court also spoke strongly of the protection of that right, even when the matter at hand was "things that touch the heart of the existing order," (West Virginia Sate Board of Education v. Barnette, 1943).

Since cases such as West Virginia v. Barnette, issues such as the freedom of school newspapers, clothing choices of students, the right to assemble, the right to free speech within the public school, and freedom of religion has been an issue of constant controversy. Even the issue of the Pledge of Allegiance and the salute to the flag are still under fire on the lower courts, as non-religious parents and students seek to abolish the words "under God" from the Pledge (Russo, 2003). While students seek stabilization of their First Amendment rights, institutions seek to maintain control over an increasingly violent school population.

In current Supreme Court and lower court rulings, three landmark cases are often used as precedence, and used to determine if, in fact, student's First Amendment rights have been violated. In fact, in a 2001 decision by the U.S. Court of Appeals for the 5th circuit, in Canady v. Bossier Parish School Board (2001), Judge Robert M. Parker discusses these three cases, and explains that the Supreme Court uses each case to assist in categorizing First Amendment issues before the Court (Dowling-Sendor, 2001). Each case, and its influence on those categories, is discussed below.

The first case, and quite possibly the most influential case on later Court rulings, is that of Tinker v. Des Moines School District (1969). At the time, the United States was at the height of their involvement with the Vietnam Conflict. A group of Des Moines public school students planned to wear black armbands to school in protest of the U.S. involvement, as well as to show mourning for those killed in the conflict. When school officials heard of the plan, they implemented a speedy no armband rule, even though the school generally permitted other symbols. The students, intent in their protest, wore the bands nevertheless, and were suspended (Tinker v. Des Moines School District, 1969).

The students sued, believing their First Amendment Rights had been violated. The issue at hand, according to the Court, was whether the school district had the right to censor the student's speech, even though it was non-violent and without showing the expression would cause a disruption, or collide with the rights of others. In a vote of 7-2, the Court ruled that the school did not have the right to censor the expression, based on the apprehension of a conflict. In a landmark statement, Justice Abe Fortas stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (Tinker v. Des Moines School District, 1969).

The Tinker decision was not without dissent. At the time, Justice Hugo Black voiced his concern over the decision, stating in his opposition that he did not want to have any part in a decision that gave control of the public school system to the students themselves (Tinker v. Des Moines School District, 1969). His belief was that the decision would influence cases in years to come, and would promote a level of permissiveness that would become intolerable.

Black was partially correct. Until 1986, the Tinker decision was used solely to determine censorship issues in both the Supreme Court and in lower courts. The Tinker case introduced the concept that schools could not censor any First Amendment right unless they had proof that the expression of those rights would cause disruption of school activities, or would interfere with the rights of other students (Tinker v. Des Moines School District, 1969).

In 1986, this precedent was slightly altered. In Bethel School District No. 403 v. Fraser (1986), a student sued over a school decision to suspend him, claiming the school had violated his right to free speech, because the speech did not disrupt school activities, as Tinker prescribed. The student had given a nominating speech on behalf of another student during a student assembly. The speech contained sexual innuendo and elaborate profanity, as well as lewd and vulgar language. The issue was whether the school could censor such vulgar speech at a student assembly, even if that speech did not create a substantial disruption. In a vote of 7-2, the Court ruled that school officials had the right to prohibit "plainly offensive" speech during school activities (Bethel School District No. 403 v. Fraser, 1986).

In their decision, the court reasoned that the Tinker decision could not apply to the current case, because the issues were drastically different. While the Tinker verdict was given based on the concept that school officials were not allowed to ban speech based on viewpoint, the Fraser speech was not banned on viewpoint, but rather, for vulgar and offensive language at a school sponsored event. The suspension was given to punish the student for his offensive terms, not to counter his political views. In his assenting decision, Chief Justice Warren Burger noted, "The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching student's the boundaries of socially appropriate behavior." He continued to point out that the offensive language may not have disrupted the assembly, but did violate those in attendance, thus negating the argument that the individual's First Amendment Right had been violated (Bethel School District No. 403 v. Fraser, 1986).

The Fraser decision showed the complexity of balancing a student's rights with the rights of those in the same school, and with keeping an orderly and safe environment for all. Additionally, the Courts' ruling left the door open for a tighter restriction on what constituted "free speech" within a public school system. While the right to hold dissenting viewpoints and to speak freely about those viewpoints remained secure, the right of students to say whatever they chose without regard to others was under more control.

The rules again changed in 1988 with Hazelwood School District v. Kuhlmeier. In this case, students producing a school sponsored newspaper elected to include articles about teen pregnancy and the impact of divorce on children. The principle, believing that the topic of pregnancy was inappropriate for younger readers, and fearing that the pregnant students of the school may be identified, as well as believing that the parents of those students discussing divorce should have been contacted, deleted the stories from the newspaper. The student journalists sued, citing the Tinker standard (Hazelwood School District v. Kuhlmeier, 1988).

The issue in this case, while similar to those of Tinker and Fraser, differed in that the question was not about "obviously inappropriate" language, or about viewpoint discrimination. Instead, the issue was whether a school official had the right to censor school-sponsored publications if they believe the material is inappropriate for some students, or that the material will disrupt the school atmosphere. Rather than being a question of power over dissent, the issue was over pedagogical concerns (Hazelwood School District v. Kuhlmeier, 1988).

In a 5-3 vote, the Court ruled that the school did have a right to censor school-sponsored publications when their reasoning was based on legitimate concerns about the educational atmosphere. In their decision, the Court noted the difference between private student speech and student speech that is sponsored by the school. Since the school-sponsored activities are representative of the school at large, and not just the student, the Court believed that the school officials had more of a right to edit the content (Hazelwood School District v. Kuhlmeier, 1988).

As of the Kuhlmeier decision, the courts in the United States had three categories of student speech rules to assist in determining First Amendment rights violations. The Tinker decision gave precedence in cases where the issue is about political viewpoints, and that precedence determined that such dissenting views cannot be censored, unless the school can show that allowing such beliefs to be expressed will cause disruption. The Bethel decision showed that lewd, obscene, or other offensive language is not protected under the First Amendment. Finally, the Kuhlmeier decision showed that while student expression of dissenting ideas is not to be regulated under normal circumstances, those expressed during school- sponsored activities can be monitored and censored by the school, in the event of legitimate educational concerns.

Hundreds of Circuit court and lower court cases have been decided based on the precedence set forth by these three landmark decisions.

Some of these cases were based solely on precedence, such as Pyle v. School Committee of South Hadley (1996). In Pyle, two public school students wore t-shirts with the phrase "Co-ed naked..." And were told by school officials that they could not wear the shirts. The students sued under the precedence set forth in Tinker and Bethel. They argued that the shirts could not be considered vulgar, and did not cause a disruption to the educational environment. In a unanimous decision, the Massachusetts lower courts ruled that the laws protected the students' rights to engage in non-school sponsored expression, so long as it was not vulgar or disruptive, as stated by the Tinker, Bethel, and Kuhlmeier decisions (Pyle v. School Committee of South Hadley, 1996).

Another such case was that of West v. Derby Unified School District No. 260. In this case, a middle school student drew a picture of a confederate flag in his math class. The student was suspended for violating its racial harassment policy, which stated, "students shall not at school, on school property or at school activates wear or have in their possession any written material that is racially divisive or creates ill-will or hatred." The student sued for violation of his First Amendment rights (West v. Derby Unified School District No. 260, 2000).

Citing Tinker, a 10th Circuit panel held that school officials had a reason to censor the student's actions, and punish him for violations. In the panel's decision, they pointed out that the student's behavior, if discovered, could have caused a substantial disruption, thus allowing for censorship under Tinker. Additionally, the drawing of the Confederate flag certainly collided with the rights of other students, again allowing for censorship under the Tinker decision (West v. Derby Unified School District No. 260, 2000).

In other cases, however, the issue of balancing the rights of students and the safety and control of the educational environment is not so readily categorized. While the Tinker, Bethel, and Kuhlmeier decisions certainly assist schools and courts in setting guidelines for First Amendment issues, there are special circumstances that require more thought and analysis. This is particularly true in school systems whose rate of in-class violence is already at a high level.

In the New Jersey 3rd Circuit Court of Appeals, in Sypniewski v. Warren Hills Regional Board of Education (2003), the Court pointed out that, in some cases, the history of the school district in question could weigh in on the decision to censor a student's free speech. In the Sypniewski case, the student, Thomas Sypniewski, wore a shirt to school with Jeff Foxworthy humor on it, which contained the word "Redneck." He was suspended for violating the school's anti-racism policy. The relevant portion of the policy read "...students shall not at school, on school property, or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred" (Sypniewski v. Warren Hills Regional Board of Education, 2003).

As the 3rd U.S. Circuit Court pointed out, the Warren Hills school district was a problem district in terms of racism. Between 1999 and 2001, the school district dealt with severe examples of racial hostility, including a Halloween costume of a white youth dressed as a black slave with a noose tied around his neck, constant wearing of clothing bearing the Confederate flag, the formation of a racist group called "The Hicks," the observance by white students of "White Power Wednesdays," and the handing out of Ku Klux Clan and Black Power paraphernalia. In addition, increasing physical violence between white and black students had occurred, including harassment outside of school grounds, and physical fistfights within the school zone (Sypniewski v. Warren Hills Regional Board of Education, 2003).

According to the school officials, the term "Redneck" could, in all likelihood, be related to the "Hicks" gang within their district. In addition, they believed the shirt, in light of their already existing race issues, could cause a great disruption, possibly escalating to violence. In order to protect other students and to establish control over the gang and race situation, they banned the shirt. The student believed his First Amendment right to free speech had been violated (Sypniewski v. Warren Hills Regional Board of Education, 2003).

The Court had two issues to determine. First, they had to decide whether the shirt is question would cause disruption, or violate the rights of others, as expressed by the Tinker decision. The Court had determined that since the shirt was not lewd, nor part of a school-sponsored activity, the Bethel and Hazelwood standards did not apply. In the ruling, Judge Scirica noted that previous cases have upheld bans against displays of Confederate flags when the school has a history of racial issues. However, according to the court, the shirt in question did not constitute a racist message, nor had it caused disruption on the occasions the shirt had been worn. Thus, the Court ruled 2-1 that the banning of the shirt violated the student's right to free speech (Sypniewski v. Warren Hills Regional Board of Education, 2003).

However, in their decision on the anti-harassment policy in general, the Court ruled that, if the school district took out the words "ill-will," the policy was, in fact, Constitutional. Judge Scirica explained that the school board had properly adopted the policy to contend with racial problems in their district that had already caused problems. Judge Scirica stated that the policy was permissible "...in the context of Warren Hills school district and its recent unpleasant history. This reliance on the background turmoil at a particular place at a particular time means that the policy would likely be unconstitutional in another school district or even in Warren Hills at a different time." (Sypniewski v. Warren Hills Regional Board of Education, 2003).

This decision and resulting opinion of the Judges shows the vast difficulty in balancing First Amendment rights with the rights of others, and with maintaining a controlled environment in any school district. The statement of Judge Scirica shows that, even within the context of other, higher court decisions, there are more issues at hand than the Fist Amendment right of students. Racial tensions in the school districts, possible links of certain symbols with area gangs, and the safety of other students all must weigh in when setting up policies for maintaining student's First Amendment rights.

Perhaps the case that most clearly displays the difficulty in balancing free speech with control over a school area is Fleming v. Jefferson County School Dist. R-1, heard in both the U.S. District Court and the 10th Circuit Court of Appeals in Colorado. In response to the Columbine shootings of 1999, where 13 people were killed and 26 others were injured, Columbine High School chose to have students and families paint ceramic tiles that would be placed within the school. It was an effort to promote healing of the local community (Dowling-Sendor, 2003).

In an effort to keep the tiles from being a constant reminder of the shootings, the school officials decided that the tiles could not display references to the attack, the names of students, Columbine ribbons, religious symbols, or offensive content. Once these policies were laid out, the school invited the community to come paint the tiles. The rules were explained, and the school officials examined the tiles before placing them in the halls. Of the 2,100 tiles painted, the school removed 90, citing non-adherence to the rules, including religious statements, names of students, gang related symbols, and crude, violent drawings. Following some complaints, the rules were relaxed to allow student's names to be placed on the tiles. Still, the Rohrbough and Fleming families sued the District, claiming their right to free speech had been violated (Dowling-Sendor, 2003).