Free Speech in Schools Essay

The right to publish material on one’s My Space internet page is a constitutional right contained in the Bill of Rights. The right to free speech is contained within the first Amendment to the US Constitution one of the main Amendments contained in the Bill of Rights. The first Amendment provides as follows: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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. Freedom of speech is married to freedom of expression and recognizes the right to publicly express one’s thoughts, ideas and opinions without fear of censorship and/or punishment. The right to free speech however is not all encompassing and does have its restrictions such as obscenity and defamation within the public broadcast arena. An early test for restrictions on free speech was formulated in the case of Schenck v. United States. Although the circumstances of the right to freedom of speech arose during World War 1, the formulated test is applicable in an appropriate case. In the Schenck case, the appellant mailed flyers out to draftees urging that they ‘do not submit to intimidation’. The missive was taken to mean a direct attempt by Schenck to discourage and obstruct recruitment. Sir Oliver Wendall Holmes, in delivering the unanimous decision of the US Supreme Court held that ‘the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is against this background that freedom of speech in relation to restrictions on a student’s display of drug or gang related material on his or her My Space website. Generally, a restriction of a student’s right to publish material such as the school’s policy against publishing drug or gang related material on his or her My Space website is a violation of their First Amendment free speech rights. However, as will be discussed, private schools have no legal obligation to comply with the First Amendment and are at liberty to implement policies such as the ‘no drug, no gang related’ online publications by the student body. Challenging Free Speech Restrictions/Plan Ordinarily, a challenge to an infringement of constitutional rights can be pursued through the Federal Court system which has jurisdiction over all matters relating to the constitution. For reasons that will be discussed later, this might not be the appropriate avenue to pursue in respect of private schools since they do not come under the Federal Government and are not bound as the Government is in respect of preserving the integrity of the US Constitution. Students wishing to challenge the school’s ‘no drugs, no gang’ publications may pursue a number of alternative courses of action. They can secure the assistance of the media and various Civil Rights groups such as the American Civil Liberties Union. The general idea is to promote the contention that a school as a place for learning and maturity has a duty to teach students to respect the provisions of the US Constitution and any policy within a school system that contravenes a student’s constitutional rights contradicts the school’s duty. However, this can be countered by the school arguing that it has a right to promote a certain image of its moral code and that a student’s publication of what amounts to base principles is inconsistent with the school’s image Certainly students can make a case challenging the school’s hard stance against online publications containing drug and gang-related material. However, whether or not they will be successful is another matter entirely. It is therefore important to examine what constitutes infringement of freedom of speech with a view to identifying which school policies and practices constitute a violation of the First Amendment before pursuing media attention. At the end of the day, a private school has a right to set policies and principles for its students and can enforce them. The question of fairness within the private school system is not a matter for the courts as will be borne out in the following passages. Freedom of Speech in High Schools Whether or not the proposed restrictions on My Space websites constitutes a violation of the student’s right to free speech has already been indirectly determined by the Federal Courts. The US Federal Court system has decided on issues of freedom of speech within the public school system. There have been three cases of significance to the first amendment and its application to public schools. They are Tinker v Des Moines Independent Community School District, Bethel School District No. 403 v. Fraser, and Hazelwood School District v. Kuhlmeier. In Tinker v Des Moines Independent Community School District 393 U. S. 503, 89 S. Ct. 733 (1969) determined the issue of freedom of expression which is closely tied in with the principle of free speech. In this case, students in an expression of disenchantment with the Vietnamese war wore certain armbands to school. When they were asked to remove the armbands and refused to do so they were suspended. They were not permitted to return to school unless and until they removed their armbands. The students refused to subscribe to the demands and as a result were suspended for an indefinite period. In an action brought by some of the students involved, the court of first instance ruled in favor of the school’s authorities. On appeal to the Eight Circuit Court of Appeal the lower court’s ruling was affirmed. The students appealed to the US Supreme Court which held that ‘it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ’ Moreover, the US Supreme Court added that ‘In our system, state-operated chools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are . persons under our Constitution. They possess fundamental rights which the State must respect, just as they themselves must respect their obligations to the State’. Be that as it may, the US Supreme Court set boundaries which have subsequently been upheld. The US Supreme Court set forth guidelines pertaining to a student’s right to freedom of speech in the following terms:- ‘If he does so without . aterially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others. . . . [C]onduct by the student, in class or out of it, which for any reason–whether it stems from time, place, or type of behavior– materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. ’ The US Supreme Court therefore held that the conduct of the students involved was proper in all the circumstances. The court would only recognize and indorse restrictions on freedom of speech when the conduct was ‘potentially disruptive†¦ by those participating in it. ’ In Bethel v. Fraser however, the US Supreme Court held that rules and regulations prohibiting the use of obscene language would not prohibit a student’s First Amendment right to free speech. The US Supreme Court ruled that ‘the schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy . . . A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the fundamental values of public school education. ’ In Hazelwood v. Kuhlmeier 484 U. S. 260, 108 S. Ct. 62 (1988) the US Supreme Court ruled that a school was at liberty to edit the content of a student’s speech appearing in a school sponsored publication, to wit; a newspaper. In distinguishing this case from the Tinker decision, the US Supreme Court explained that the Tinker case was decided on the propriety of muting a student in his freedom of expression so to speak. Whereas, in the Hazelwood case, the Court was dealing with a school-sponsored newspaper which presupposes that it is published with the school’s approval. The court explained its position as follows:- ‘[T]he standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold 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 reasonably related to legitimate pedagogical concerns. In making a decision in Poling v. Murphy 872 F. 2d 757 (6th Cir. 1989) the 6th Circuit Court of Appeal reconciled the rationale behind the three US Supreme Court decisions cited above. In this case, Poling, a student at Unicoi County High School in Tennessee delivered a campaign speech in support of his attempt to be elected president of the school’s student council. The speech was given at the school’s assembly at which student attendance was mandatory unless an excused absence was previously obtained. Prior to delivering the speech, Poling was required to submit the speech to faculty members for approval. The faculty members reviewing the speech said that they would approve the speech provided Poling removed a sentence which referred to the school’s ‘iron grip. ’ Poling did not do as advised and in fact he revised the sentence in question in such a way that he added to it making comments in reference to an assistant principal that was described by the principal as ‘inappropriate, disruptive of school discipline, and in bad taste. As a result the school removed Poling from the electorate slate of candidates and he took the matter to court. The court at first instance ruled in favor of the school district and Poling appealed to the 6th Circuit Court of Appeal. The appellate court in referring to ruling in Tinker’s case said that ‘tt is true, to be sure, that students do not . shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,. and . [s]chool officials do not possess absolute authority over their students.. . . It also remains true, however, that the Federal Constitution does not compel . teachers, parents, and elected school officials to surrender control of the American public school system to public school students.. . . . Limitations on speech that would be unconstitutional outside the schoolhouse are not necessarily unconstitutional within it. ’ The 6th Circuit Appeals Court went on to state that had Poling been permitted to make his speech in the manner that he would have liked to it would have given rise to ‘legitimate pedagogical concerns. ecause . [t]he art of stating one’s views without indulging in personalities and without unnecessarily hurting the feelings of others surely has a legitimate place in any high school curriculum. . . ’ The general position here is that although the First Amendment is directly applicable in the public school system, the Federal Court System does permit public schools to restrict free speech among the student body when free speech threatens to undermine disciplinary and educational principles. Therefore private to whom the First Amendment do not apply will have even more leeway in restricting a student’s online publications. A Student’s First Amendment Right to Free Speech and Online Publications Generally speaking a student’s off campus conduct is not a matter for school officials provided it does not fail the Tinker ‘material disruption’ test. The publication must also be able to stand up to the Hazelwood test which will permit censorship if the material appears on a school sponsored website. However, in a private boarding school, students are rarely ‘off campus’ and drawing the line can be difficult. As long as the student is in the care of the school he is subject to the school’s regulations. In American Public School Law by Alexander and Alexander reference is made to the case of Beussink v. Woodland R-IV School district. In this case, Beussink, a student published a personal webpage on his own computer where he referred to the school’s authorities in vulgar terms. The webpage was somehow brought to the attention of the school’s authorities and Beussink was subsequently suspended. He challenged his suspension via the US District Court. It was held that the suspension was unconstitutional and contravened the student’s right to free speech. The presiding judge went on to say that the high school’s authorities failed to demonstrate that the suspension ‘was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. ’ It has been held that off-campus communications via the internet that constituted a true threat can be disciplined by the school district. However, in order for the ‘true threat’ to come under the school’s jurisdiction it must have a nexus with the school itself. When an off campus communication does not contain a threat but nevertheless has a nexus with the school, whether or not the school can restrict that communication will have to examined in the context of the Tinker decision namely the communication will have to be ‘materially and substantially interferes with the requirements of appropriate discipline in the operation of the school. ’