Know the Law

In 1965, a group of middle school students in Des Moines decided to wear black armbands to school to protest the Vietnam War. District principals learned of the plan and prohibited the wearing of armbands, arguing they wanted to prevent possible disturbances. Several students defied the ban, wore armbands, and were suspended.

The case, Tinker v. Des Moines Independent School District, ended up before the U.S. Supreme Court. In what is one of the most-often quoted affirmations of free speech in schools, the 7-2 majority wrote in its 1969 decision: “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 is one of four key U.S. Supreme Court cases outlining the legal parameters of issues of school censorship. The other three are:

• Board of Education, Island Trees (New York) Union Free School District 26 v. Pico, which involved banning books from the school library.
• Hazelwood School District v. Kuhlmeier, which involved school officials’ censorship of a student newspaper.
• Bethel School District v. Fraser, which involved a high school student’s suspension for sexually suggestive remarks in a student-government nominating speech.

The Pico Case

In September 1975, three members of the school board of the Island Trees school district on New York’s Long Island attended a conference of the conservative group, Parents of New York United. There they received a list of “objectionable” books, ranging from “Soul On Ice” by Eldridge Cleaver to “The Fixer” by Bernard Malamud and “The Best Short Stories by Negro Writers,” edited by Langston Hughes. The board members discovered that nine of the listed books were in their high school library and another was in the junior high library. They directed that the books be removed, justifying their action on the grounds that the books were “anti-American, anti-Christian, anti-[Semitic], and just plain filthy.” They further argued that “[it] is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.”

Seven years later, in June 1982, the U.S. Supreme Court ruled in a narrow 5-4 decision that school officials “may not remove books from school library shelves simply because they dislike the ideas contained in those books. …”

Justice William J. Brennan, in the lead opinion, argued that “Just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”

But even Brennan conceded that school boards “have significant discretion to determine the content of their school libraries.” That phrase, and the opinions of the court minority (which included current U.S. Supreme Court Chief Justice William Rehnquist) are important cautions. Whether one agrees or not, the Supreme Court has recognized that censorship issues in the schools abide by different rules than censorship cases in public libraries, bookstores, and other non-school settings.

The heart of the complexities involve the conflicting views of the role of public schools in society. As the book “Censorship and Selection” notes: “If a school’s role is seen primarily as one of indoctrination and inculcation of community values, school boards will have almost unlimited discretion in the selection and removal of materials that are part of the school’s curriculum. If, however, the view is that the school is a marketplace of ideas where students may have access to a variety of viewpoints, the limits imposed upon the school board are expanded considerably. Both these views are held to varying degrees by judges at all levels, including the United States Supreme Court.”

Pico narrowly tilted toward the side of the marketplace of ideas. The 1988 Hazelwood and Fraser cases tilted toward school officials’ right to select, limit, and indoctrinate.

The Hazelwood Decision

Hazelwood began in 1983 when students at Hazelwood East High School in St. Louis County, MO published two controversial articles in the school newspaper. One described an unnamed student’s experiences with pregnancy and the other discussed the impact of divorce on students at the school. The principal ordered the stories removed. One of his arguments was that the pregnancy article’s references to sexual activity and birth control were “inappropriate” for younger students at the school.

In what is considered a setback to the right of students to self-expression, the U.S. Supreme Court ruled in 1988 that school officials may censor stories in official school publications as long as “their actions are reasonably related to legitimate pedagogical concerns.” The ruling, however, rested on a principal’s authority over school curriculum, such as official publications, school plays or other school-sponsored activity. Underground newspapers produced without a teacher’s help, or other free speech issues such as a student’s right to wear political buttons, remain subject only to the standard outlined in Tinker.

While Hazelwood tempers previous Supreme Court decisions, it does not overrule them. School officials must show a “legitimate pedagogical purpose” when they make decisions on banning or selecting materials. As the ACLU notes in its book, “The Rights of Students,” “Nothing that the Supreme Court said in the [Hazelwood] decision gives a principal the right to censor an article because of disagreement with its point of view.”

The Fraser case

Like Hazelwood, Fraser further limits students’ rights to free speech. The case involved a 14-year-old’s campaign speech on behalf of a friend during a voluntary school assembly. The speech was filled with sexual metaphor and innuendo, but no actual sexual terms. For example, Fraser talked about how his friend was “a man who is firm.” (In the days of Beavis and Butthead, the comments might not seem so shocking. At the time, Chief Justice Warren Burger was unwilling to even quote the student’s language, describing it simply as “lewd and obscene.”

In what is seen as a step backwards from Tinker, the Supreme Court upheld the suspension. It ruled that a school “need not tolerate student speech that is inconsistent with its ‘basic educational mission’ ” and that the school may regulate speech “even though the government could not censor similar speech outside the school.”