SUMMARY KEYWORDS
students, school, speech, walkout, free speech, education, expression, social media, first amendment, freedom, free speech rights, case, court, decision, rights, tinker, cheerleading team, message, question, children
00:10
Welcome to another episode of K-12 Education Untangled. My name is Dr. Kim Fields, former corporate manager turned educational researcher and advocate, and I'm the host of this podcast. I got into this space after dealing with some frustrating interactions with school educators and administrators, as well as the micro-discriminations that I faced as an African American mom raising my two kids who were in the public school system. I really wanted to understand how teachers were trained, and what the research provided about the challenges of the public education system. If you're looking to find out more about current topics in education that could affect you or your children, and you're in the right place. In today's episode, I'll be discussing whether students actually do have free speech rights while they are in school.
01:12
Learning about the democratic process is a critical component of the civics process in this country. Students need to understand how to use their voices for change. Being able to voice unpopular perspectives in public is a part of that process. Not all environments are open to free speech for students and this has caused a number of legal entanglements. But, how is all of this applied in the era of social media? I delve into the background of K-12 public schools, students’ rights of free speech and the seminal Supreme Court cases that provided precedence for ongoing legal decisions. I then discuss social media implications, the democratic process in action and how it affects the school policies, and seven characteristics of schools that are pertinent for free speech.
In an article in Ed Week in February, 2019 by Mark Walsh, he described that a little over 53 years ago, in February, 1969, the US Supreme Court issued a decision on student speech that has remained relevant for generations of public school students ever since. The case was Tinker versus Des Moines Community Independent School District, in which Marybeth Tinker and her brother John were suspended with three other Des Moines Iowa high schoolers in 1965, for wearing black armbands to protest the Vietnam War, as well as to mourn those who had died in the war. In that case, the court ruled seven to two to uphold the rights of several students in Des Moines our to wear those black armbands in school as a sign of protest against the Vietnam War. The court said that the armbands were symbolic speech that was protected by the First Amendment, as long as the school was generally not disrupted. School administrators learned of the plan and the district's five high school principals came up with an ad hoc policy, prohibiting the wearing of the armbands in school. The Tinkers and Christopher Eckhart, another student who wore an armband that day, were suspended along with several other students. The Eckert and Tinker families sued the district with the aid of the Iowa Civil Liberties Union, although they lost in federal district court, and a federal appeals court. The case reached the US Supreme Court in 1968. In that seven to two vote to uphold rights of students to wear armbands, a notable quote from Justice Abe Fortas was “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, Justice Hugo L. Black, who normally advocates for free speech, drew a line when it came to minors in school. He wrote that “If the time has come when pupils of state supported schools, kindergartens, grammar schools, or high schools can defy and flout orders on school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.”
Such is the setting for the background on the legal aspects to K-12 students exercising their rights of free speech. The Supreme Court has since limited the scope of the Tinker case, with three notable decisions. In Bethel School District number 403 versus Fraser, 1986, the Court upheld the discipline of high schoolers who delivered a speech full of sexual innuendo at a student assembly. In 1988, in Hazelwood School District versus Kuhlmeier, the court ruled in favor of the Missouri principal who read a high school newspaper in advance of publication and ordered the deletion of articles on divorce and teenage pregnancy. The third notable decision, Morse versus Frederick, the Supreme Court justices in 2007 ruled that a student could be punished for displaying a banner interpreted as a pro drug message. The banner message was ‘Bong Hits 4 Jesus’, and it was displayed at a school supervised event. In this case, Justice Clarence Thomas overruled Tinker when he stated “In the name of the First Amendment, Tinker has undermined traditional authority of teachers to maintain order in public schools.”
All of that to say this: Students generally have limited free speech rights when on school property, especially if their freedom of expression infringes on the rights of others, school safety, or interferes with the ability of school to deliver its educational services, and processes. Outside of the school setting, social media posts made by students can be controversial as far as their free speech rights are concerned. The Internet actually blurs the lines that would otherwise clearly delineate where student speech would be protected. In some cases, seemingly inappropriate activities made under certain circumstances can be forms of protected student expression. This is because you'll likely find free speech at the intersection of school authority and student social media use. In other words, a form of student speech online would be considered protected under the First Amendment if that same expression were protected in a traditional offline format.
The challenge is how educators will address off-campus online students’ speech that would otherwise be prohibited on campus. Students’ social media use in school has somewhat been mitigated by school administrators by having a clear school policy on this issue. There are instances where online and off- campus student speech could lead to disciplining a student for their social media use, and this has been backed by several court decisions. Those instances would include if there was a violation of the Code of Conduct established by the school policy; if the social media content is directed at school community in a way that could be construed as threatening; if the social media use could potentially cause a substantive and material disruption to the educational process;
08:35
if it promotes illegal activity, such as illegal drug use, or alcohol use, theft, and other illegal activities; and if the social media content is obscene, lewd, vulgar, indecent, racist, or in any other way inappropriate in a school setting. Ultimately, student expression in the digital era is still clearly a First Amendment issue.
09:04
Another article in EducationWeek by Mark Walsh, in March of 2013, described how a fifth grader passed out invitations to church youth party to her classmates while in school in a Pennsylvania school district. A Federal Court of Appeal upheld an injunction that set aside the Pennsylvania school district’s rules that barred this fifth grader from passing out those church youth party invitations. A three-judge panel of the US Court of Appeals for the Third Circuit in Philadelphia weighed in on this issue of whether elementary school students have free speech rights that are protected by the First Amendment. This panel unanimously agreed that they did. The student’s teacher said that she would need permission of the principal at Barrett Elementary Center in order to distribute the flyers. It seems that the decision was passed up to the district superintendent, who later barred the distribution of flyers, citing that the school board policies mandated that only materials directly related to school district activities, or that contribute significantly to instructional programs could be dispersed in school. The child's father sued the Pocono Mountain district on free expression grounds, especially since he knew that other students in the school frequently passed out invitations to birthday parties and other similar activities. In the end, the Third Circuit Court of Appeals Panel indicated that the passing out of those flyers caused no disruption to the educational process. In fact, that panel of judges on the Court of Appeals indicated that the student would suffer substantial First Amendment harm if her freedom of expression continued to be suppressed; however, nothing would bar the district from regulating her freedom of speech if it became disruptive.
In a January, 2021, article, Mr. Walsh highlighted a case that the US Supreme Court agreed to hear regarding student speech. This particular case was about granting of Pennsylvania School District’s appeal of a lower court ruling that had overturned the discipline of a high schooler who posted a vulgar message on Snapchat in a dispute involving her cheerleading team. Again, the High Court had to make a decision about the application of the First Amendment rights to student speech that occurred off- campus, especially on the Internet. The sophomore student was placed on the junior varsity cheerleading team instead of the varsity cheerleading team because of her comments on Snapchat. A teammate of the student actually took a screenshot of her message and brought it to the attention of cheerleading coaches, who said that it violated team rules as well as school rules because of the foul language and disrespect of the teammates and coaches. The student who made the snaps was removed from the JV team for the season. That student, identified only as B L., and her parents sued the Mahoney Area School District in 2017, alleging that their child being removed from the team violated the First Amendment free speech clause. The student won in federal district court, which awarded her $1 in nominal damages plus attorney’s fees. That ruling was affirmed by a panel of the US Court of Appeals for the Third Circuit in Philadelphia, with a judge specifically indicating that the primary responsibility of teaching civility rests with parents and other members of the community. Even though the students snap was crude, rude, and juvenile, just as you might expect, of an adolescent. While one law professor indicated that Supreme Court should take up the case in order to provide greater clarity to the lower courts and schools about regulation of student off-campus speech. The high court's decision about whether public K-12 schools can discipline students for any off-campus speech is all the more important in this Internet age. Students are constantly accessing social media, and this creates even more avenues for off-campus communications that can rapidly permeate the school setting. A decision on this case could be determined by June, 2021, although a case like this sometimes gets put off until January of the next year, when the Court returns for its next term.
Students across the country planned to mark the one-month anniversary of the February 14 deadly shooting in Parkland, Florida, by conducting a nationwide plan to walk out of schools for 17 minutes to demand that their state and local representatives address gun violence, as reported by Culver and Salkin in EducationWeek, March, 2018.
14:21
These students were among the organizers of the ENOUGH National School Walkout on March 14, as well as a separate day-long National School Walkout on April 20 and they were using social media to rally their classmates. The student organizers stated that their efforts were part of an escalating force in a larger fight. At least two school districts and administrators associated there were seeking to silence the students and their voices with threats of discipline. The superintendent in the Needville Independent School District near Houston, Texas, warned the students against any participation in this type of protest during school hours. In fact, he threatened a three-day suspension for any student participating because he stated that students were in school for an education, not a political protest. The censorship by the superintendent as well as others, including the Waukesha School District in Wisconsin, raised a couple of interesting questions. One, are these acts of expression protected under the First Amendment? And, two, what rights do parents have to support their children's efforts, knowing that the school or district could discipline their child?
The answer to the first question about protections on the First Amendment is that the students do have the right to free expression as long as it doesn't cause any material and substantial disruption to the school day. If there's the possibility of disruption, then the schools have the space to explore how they might work around the disruption and still allow the students to experience the expression of political speech using armbands speeches, or walkouts. The short answer to the second question about whether parents have the right to support their children's efforts is that the Supreme Court has upheld the rights of parents to choose where their children get an education about citizenry and the Court has barred schools from forcing students to express ideological sentiments that conflict with their families deeply held beliefs. In this particular situation about the walkouts, parents were supporting a foundational purpose of education, namely citizenry, by endorsing civic engagement. The students weren't talking about planning a walkout to demand Wi Fi in school, so that they can use Snapchat. What they purposed to demonstrate with a walkout was to send a clear message to elected officials that they want to be safe in school. It would seem that this is the type of civic participation that schools should be encouraging their students to partake. Schools have a broader mission to help students emerge as participants in their democracy. School districts should allow students the right to political speech within reasonable limits. Educators should be supporting students and helping them to carry out their freedom of expression, as long as it causes no harm to others. They don't have to support the content of the students’ expression, but perhaps they should feel obliged to stand up for their students’ right to speak.
The US Supreme Court in the Tinker decision indicated that the First Amendment rights are modified by “special characteristics of the school environment,” as noted by Bryan Warnick, an educational researcher who published an article in Educational Researcher in April, 2009. In that article Warnick posited seven characteristics of schools that are relevant to free speech freedoms: 1, the age of the student to attendance requirements; 2, attendance requirements; 3, multiple school constituencies; 4 heightened safety concerns; 5, the need for public accountability; 6, the school-associated nature of much student speech; and, 7, the need to promote educational goals. His aim was to put these seven characteristics into a larger picture in order to better understand how schools can transform students’ rights.
Children and adolescents often lack the knowledge and experience that are necessary for their voices to justify full speech rights. Additionally, children don't exercise democratic sovereignty. This doesn't mean however, that students don't have anything to say.
19:10
Warnick makes a point that bears the distinction between children's rights and students’ rights. Children outside the school environment seem to have rights that children within the school environment do not have.
The age of students directly impacts attendance requirements. Schools mandate that children attend them; it is required by law. They're basically a captive audience and this has implications for freedom of speech. Schools serve multiple constituencies, many of whom have a controlling interest in the school. These constituencies, or I like to refer to them as stakeholders, include the government, parents, and the children themselves. Speech rights don't always undermine parental authority; sometimes they enable parental authority. In many cases, student speech is awfully closely associated with family speech.
Schools have a heightened concern for safety. The issue is that compulsory schooling generally heightens safety concerns because schools cannot be avoided even if they are dangerous. The safety of schools has often been cited as a reason to deny children First Amendment rights. Public schools that accept public funding as well as private schools who accept public funding should be held accountable to the larger democratic community. The formulation and evaluation of their policies should be open and available for revision by the stakeholders they serve.
The possibility of public accountability has been linked to freedom of expression. A popular argument is that since students don't vote and can't be elected to legislators, school boards, then they don't need to be given free speech rights. A counter argument indicates that giving people freedom of speech means giving them a voice as decision makers. Warnick provided further research that there's some evidence that indicates that when students have free speech, this can play an important role in creating a more effective school environment. One reality is that most of the student speech that comes out of school is really a cooperative endeavor between the school and the student. Because the school allows students to use resources to hold meetings and activities, to publish newspapers and yearbooks, and to provide other forms of expression, such as school assemblies. It's not that easy to separate where the voice of the school starts and the voice of the student ends; they’re basic basically intertwined. It is worth noting that students using a room for meetings are not participating in high school associated free speech.
The main goal of schools is that they are places where learning is taking place in pursuit of certain educational goals. A distinction needs to be made here between activity-oriented censorship, and message-oriented censorship. Activity-oriented censorship occurs when free speech is forbidden because it interferes with school activities. On the other hand, message-oriented censorship occurs when free speech is forbidden when it runs counter to the message that the school is trying to convey, although there's not really a unified description of the basic educational mission of most American schools. This has often been difficult and contentious. In any case, it seems better to err on the side of schools being an educational environment in which children learn about the democratic process and civility. Warnick concludes that it's not that people are taken too seriously the special characteristics of schools and transforming student rights: it is that people have not taken them seriously enough.
23:11
So, here's how this applies in a little more detail to K-12 education. Not surprisingly, most high school students believe that people should be able to express unpopular opinions in public, according to Jacqueline Zubrzycki of EducationWeek in February, 2017. Alternatively, they are less supportive of allowing people to publicly share opinions or posts on social media that are offensive or bullying in nature. Students’ attitude toward First Amendment protection for freedom of speech, religion, the press, and the right of people to peaceably assemble have grown more favorable over the last few years. More than half of these high school students reported using their mobile devices or the social media to get news, although many high school students have trouble distinguishing between fake news and real news. Roughly 76% of high school students are at least somewhat concerned about their privacy on the Internet, and 72% of students believe that people should be able to make phone calls, or send online messages without government surveillance.
Here are the takeaways from this episode. Outside of the school setting, social media posts made by students can be controversial as far as the free speech rights are concerned. The Internet actually blurs the lines between what would otherwise clearly delineate student free speech and where it would be protected. In some cases, seemingly-inappropriate activities made under certain circumstances can be forms of protected student expression. And that's because you will likely find free speech at the intersection of school authority, and student social media use. There are instances where online and off-campus speech could lead to disciplining a student for their social media use, and this has been backed by several court decisions. Those instances would include if there was a violation of the Code of Conduct established by the school policy; if the social media content has directly affected the school community in a way that could be construed as threatening; if social media use could potentially cause a substantive and material disruption to the educational process; if it promotes illegal activity, such as illegal drug use, or alcohol use, theft or other forms of illegal activities; and, if the social media content is obscene, lewd, vulgar, indecent, or racist. Ultimately, student expression in the digital era is still clearly a First Amendment issue.
Schools provide an ordered and disciplined environment to help students learn how to read and write, but they are also needed to provide an environment where students can practice their expressive skills within institutional context. The question of student rights goes to the heart of what most of us believe education is and what the school should contribute to the educational process. Civic participation, whether by wearing arm bands, or conducting walkouts as a sign of protests, is something that schools should be encouraging their students to partake. Schools have a broader mission to help students emerge as participants in their democracy. School districts should allow students the right to political speech within reasonable limits. Educators should be supporting students and helping them to carry out their freedom of expression, as long as it causes no harm to others. They don't have to support the content of the students’ expression, but perhaps they should feel obliged to stand up for their students’ right to speak. After reviewing the pertinent literature, my question remains as to whether students’ free speech rights apply to all students, or just some. Nowhere in the literature are any students who demonstrated their free speech rights indicated as being a student of color. I wonder whether the Supreme Court decisions would have been different if a student of color had been involved in the prior referenced cases.
28:02
All students are required to learn the democratic process through civics classes. And this education applies to everyone, regardless of how it is demonstrated. Seven characteristics of schools that are relevant to speech freedoms are: 1, the age of the students; 2, attendance requirements; 3, multiple school constituencies or stakeholders; 4, heightened safety concerns; 5, the need for public accountability; 6, the school associated nature of much student speech; and 7, the need to promote educational goals. These seven characteristics, when framed into a larger picture, will help you to better understand the complexities involved as far as how schools can transform students’ free speech rights.
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And be sure to stay tuned... On the next episode of my podcast. I'll be reviewing another book from the banned book list: The Hate U Give. Until next time, aim to learn something new every day!