School Free Speech and Government as Educator

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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.

Although the Supreme Court had previously held that students in public schools are entitled to some constitutional protection,1 as are minors generally,2 it established the controlling standard for assessing First Amendment rights in the school environment in Tinker v. Des Moines Independent Community School District.3 In that case, the Court articulated a need to balance students’ First Amendment protections with the goals and needs of educators and the community.

In Tinker, high school principals had banned students from wearing black armbands as a symbol of protest against the United States’ actions in Vietnam.4 Reversing the lower courts’ refusal to reinstate students who had been suspended for violating the ban, the Court set out a balancing test for applying the First Amendment in schools.5 According to the Court, “ First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students,” and neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 6 Notwithstanding these protections, the Court affirmed the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, “to prescribe and control conduct in the schools.” 7 On balance, therefore, school authorities may restrict expression to prevent disruption of school activities or discipline,8 but such restrictions must be justified by “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” 9

The Court reaffirmed Tinker in Healy v. James, finding no basis to believe that, “ First Amendment protections should apply with less force on college campuses than in the community at large.” 10 In Healy, the Court held that students’ rights of association, implicit in the First Amendment, were violated when a public college denied a student group official recognition as a campus organization.11 Denying recognition, the Court held, was impermissible if it was based on factors such as the student organization’s affiliation with the national Students for a Democratic Society, on disagreement with the organization’s philosophy, or on an unfounded fear of disruption.12 The Court suggested that how courts strike the balance under the Tinker inquiry may differ depending on the students’ ages. The Court emphasized that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’” but also concluded that a college administration may require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law.” 13

In 1982, the Court faced a conflict between a school system’s obligation to inculcate community values in students and the free-speech rights of those students. In Board of Education v. Pico, the Court considered a case challenging a school board’s authority to remove certain books from high school and junior high school libraries.14 The procedural posture of the case required the Court to assume that the books were removed because the school board disagreed with the books’ content for political reasons.15 A plurality of the Court thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas.16 Although the plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political,” it reasoned that a school board was constitutionally prohibited from removing library books in order to deny access to political ideas with which the board disagreed.17 The four dissenters argued that the Constitution did not prevent the school board from expressing community values in this way regardless of its motivation.18

The Court struck a different balance between student freedom and educator authority in Hazelwood School District v. Kuhlmeier,19 in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only “reasonably related to legitimate pedagogical concerns.” 20 The Court distinguished the facts of Kuhlmeier from Tinker, explaining that “[t]he question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—-is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.” 21 The student newspaper at issue had been created by school officials as a part of the school curriculum, and served “as a supervised learning experience for journalism students.” 22 Because the newspaper was not a public forum, school officials could maintain editorial control so long as their actions were “reasonably related to legitimate pedagogical concerns.” 23 Thus, a principal’s decision to remove an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.24

In Morse v. Frederick,25 the Court held that a school could punish a pupil for displaying a banner that said, “BONG HiTS 4 JESUS” at a school-sponsored event even absent evidence the banner caused substantial disruption.26 The Court reasoned that schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,” 27 but indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.” 28 In his concurrence, Justice Samuel Alito commented that the Court’s opinion “provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue.” 29

While the Kuhlmeier and Morse cases focused on applying Tinker to on-campus speech, the Court addressed Tinker's application to off-campus speech in its 2021 Mahanoy Area School District v. B.L. decision.30 In Mahanoy, the Court held that while public schools may have a special interest in some off-campus student speech, there are several features of off-campus speech that diminish “the unique educational characteristics that might call for the special First Amendment leeway” to regulate speech that Tinker provided.31 The Court identified three distinguishing characteristics of off-campus speech that the Court reasoned made the Tinker standards less applicable.32 First, off-campus speech, in some circumstances, should fall within the zone of parental, rather than school officials', responsibility.33 Second, the Court reasoned that allowing schools to regulate off-campus speech would provide an opportunity to regulate student speech 24 hours a day, which may, in effect, chill students’ protected speech.34 Third, the Court emphasized that while a school does have authority to regulate speech that interrupts the school’s work,35 schools also have an interest in protecting students’ unpopular expressions, as America’s public schools are “the nurseries of democracy.” 36 Although the Court recognized that some off-campus speech—-such as severe bullying, threats, or participation in online school activities—may require school regulation, it was hesitant to establish any clear general rules about what constitutes off-campus speech.37 In light of these considerations, the Court held that a school could not regulate a student’s social media posts that criticized the school because the circumstances of the speech—the fact that the posts were made at an off-campus convenience store on a personal cellphone to a limited group of people and did not name the specific school or school authorities—diminished the school’s interest in regulation.38

The line of cases from Tinker to Mahanoy address the First Amendment rights of school and university students. Teachers and other employees of schools also have rights, but those rights are generally analyzed under rules that apply to the government as an employer.39

1: See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).
2: In re Gault, 387 U.S. 1 (1967). Children are subject to some restrictions that could not constitutionally be applied to adults. E.g., Ginsberg v. New York, 390 U.S. 629 (1968) (upholding state law restricting access to certain material deemed “harmful to minors,” although not obscene as to adults).
3: 393 U.S. 503 (1969).
4: Id. at 504
5: Id. at 514.
6: Id. at 506.
7: Id. at 507.
8: Id.
9: Id. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). See also Papish v. Bd. of Curators, 410 U.S. 667 (1973) (state university could not expel a student for using “indecent speech” in campus newspaper); but cf. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding two-day suspension, and withdrawal of privilege of speaking at graduation, for student who used sexual metaphor in speech given to high school assembly).
10: 408 U.S. 169 (1972).
11: Id. at 180.
12: Id. at 187–90.
13: Id. at 193. Because a First Amendment right was in issue, the college had the burden to justify rejecting a request for recognition rather than the requesters to justify affirmatively their right to be recognized. Id. at 184. See also Grayned v. City of Rockford, 408 U.S. 104 (1972) (upholding an anti-noise ordinance that forbade persons on grounds adjacent to a school to willfully make noise or to create any other diversion during school hours that “disturbs or tends to disturb” normal school activities).
14: Bd. of Educ. v. Pico, 457 U.S. 853 (1982).
15: Id. at 872.
16: Id. at 866–67.
17: Id. at 862, 864–69, 870–72. Justices Thurgood Marshall and John Paul Stevens joined Justice William Brennan’s opinion fully. Justice Harry Blackmun believed “that certain forms of state discrimination between ideas are improper” and agreed that the government “may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.” Id. at 878–79 (Blackmun, J., concurring in part and concurring in the judgment). Justice Byron White provided the fifth vote for reversal, and he would have avoided “a dissertation” on the First Amendment issue. Id. at 883 (White, J., concurring in the judgment). Instead, he voted to reverse the trial court’s grant of summary judgment based on an unresolved factual issue going to the reasons for the school board’s removal. Id.
18: Justice William Rehnquist wrote the principal dissent. Id. at 904 (Rehnquist, J., dissenting). See also id. at 885 (Burger, C.J., dissenting), 893 (Powell, J., dissenting), 921 (O’Connor, J., dissenting).
19: 484 U.S. 260 (1988).
20: Id. at 273.
21: Id. at 270–71.
22: Id. at 270.
23: Id. at 273.
24: Id. at 276.
25: 551 U.S. 393 (2007).
26: Id. at 401.
27: Id. at 397.
28: Id. at 403.
29: Id. at 422.
30: No. 20-255 (U.S. June 23, 2021).
31: Id. at 5–7.
32: Id. at 7.
33: Id.
34: Id.
35: The Court also reiterated that, pursuant to Tinker, schools have a “special interest in regulating speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’” Id.
36: Id.
37: Id. at 5–6.
38: Id. at 7–8.
39: See, e.g., Keyishian v. Bd. of Regents, 385 U.S., 589 (1967). See also Amdt1.7.9.1 Loyalty Oaths, Amdt1.7.9.2 Political Activities and Government Employees, Amdt1.7.9.3 Honoraria and Government Employees, and Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech.