The Supreme Court’s decision this year in Morse v. Frederick marks but the latest in a series of cases balancing the 1st Amendment rights of students with the educational prerogatives of school authorities and other vital concerns. Experience suggests that this volatile area of law will not soon be settled.
Nearly 40 years ago, during the height of the Vietnam War, the United States Supreme Court decided a landmark case for student rights in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Earlier this year, upon conclusion of its 2006-07 term and amidst today’s ongoing war in Iraq, the high court rendered a ruling that many viewed as a landmine for student rights,Morse v. Frederick, 127 S.Ct. 2618 (2007).
The two cases, divided by almost four decades and a few military conflicts, reflect the ebb and flow of the rights of students as advocates within the educational process. As the tides have rolled in and out, litigants and their lawyers have had to navigate through the rocky shoals of 1st Amendment law as applied to educational institutions throughout the country, including Minnesota. While there has not been a tsunami of these cases in this jurisdiction, the federal and state courts in Minnesota have witnessed some sea changes in the doctrine affecting student rights of freedom of expression over the years.
The return to school this fall of some 50 million students, including nearly a million in Minnesota, and the commencement of the new term of the Supreme Court, provide an opportune occasion to examine the 1st Amendment rights of students, from the high water mark in Tinker to its recent ebb in Morse.
The tale of students’ freedom of expression starts with the Tinker case, which upheld the right of public school students in Des Moines to wear armbands to class protesting the Vietnam War, without causing any disruption or disorder. Reversing the 8th Circuit, which upheld suspension of five protesting students by school authorities,1 the high court uttered the famous phrase that neither “students nor teachers shed their [c]onstitutional rights to freedom of speech or expression at the schoolhouse gate.”2 The lack of any disorder or disruption was a central element in the Court’s reasoning, but two justices dissented, lamenting the rulings as depriving school officials of disciplinary authority and assigning “power to control pupils … to the Supreme Court.”3
The Tinker case reached the high court at the zenith of the Court’s leadership by Chief Justice Earl Warren. It was a period marked by decisions that were clearly and continuously more liberal in expanding constitutional rights than in any other era.
But the ethos was notably different in the Morse case, in which the Court, by a 5-4 margin, ruled that a high school student in Alaska was properly suspended for exhibiting a banner at a school-sponsored event proclaiming “BONG HiTS 4 JESUS,” a phrase that the school principal deemed to denote illegal drug use. The majority opinion, written by Chief Justice John Roberts, viewed the perceived promotion of illegal drug use as a “serious” charge, which “[t]he First Amendment does not require schools to tolerate.”
But four jurists dissented, all pointing to Tinker for the principle that “protects students speech.” Justice John Paul Stevens, in his dissent, found the message on the unfurled banner to be innocuous “dumb advocacy.” Paying homage to Tinker terminology, the oldest jurist on the Court observed that students “do not shed their brains at the schoolhouse gate.”4
Minnesota has had its share of student 1st Amendment rights litigation cases during the nearly four decades between Tinker and Morse. A number of the Minnesota cases involving a student’s rights to freedom of expression have involved the nuances of student newspapers
The editors of The Minnesota Daily, the student newspaper at the University of Minnesota, successfully challenged the school’s tinkering with the method of funding of the publication on 1st Amendment grounds in Stanley v. McGrath, 719 F.2d 279 (8th Cir. 1983). The newspaper’s funding mechanism, which included mandatory student fees, was altered to allow students to opt-out of paying the fees after the newspaper published a controversial “Finals Week” edition at the end of the school year. The offending edition criticized university officials and included crude language and satirical pieces that were deemed by some to be vulgar and sacrilegious.
Reversing a ruling of U.S. District Court Judge Robert Renner in Minnesota, the 8th Circuit held that the decision to alter the funding arrangement, thereby reducing the revenue available to the newspaper, had been motivated by the contents of the publication, which violated the 1st Amendment. The Court pointed to statements by members of the university’s Board of Regents and the university president reflecting that the “Daily’s contents was also on the Board’s collective mind,”5 which constituted strong evidence the Regents were reacting to the contents of the paper and to the disapproval that others expressed of those contents. This motivation constituted an impermissible regulation of freedom of expression of the students on the newspaper staff.
The decision in the Stanley case clashed with a subsequent ruling of the United States Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), in which the Court again reversed a ruling of the 8th Circuit.6 This time the high court upheld the authority of a high school principal to bar publication in the student newspaper of a pair of articles, which he deemed offensive, regarding pregnancy and divorce. While paying homage to the Tinker rationale, the Court upheld the principal’s right to censor the newspaper because the case was “different from the question [in Tinker] where the First Amendment required the school affirmatively to promote particular student speech.”7 The Court reasoned that the high school newspaper is “part of the school curriculum … designed to impart particular knowledge or skills to student participants and audiences.”8 Because of the right of school administrators to “exercise greater control” over student curriculum, their action was appropriate “to assure that participants learn whatever lessons the activity is designed to teach [and] that readers or listeners are not exposed to material that may be inappropriate for their level of maturity.”9
While the Hazelwood case was pending before the high court, the 8th Circuit granted school officials in Fridley broad authority to prohibit distribution on school grounds of an underground student newspaper that did not comply with school policies regarding distribution of unsanctioned, unofficial written material on school premises in Bystrom v. Fridley High School, 822 F.2d 747 (8th Cir. 1987). Vacating a decision by Judge Renner, the appellate court held that the school’s policy was not unconstitutional and its guidelines prohibiting distribution of material that was indecent or vulgar were not unconstitutionally vague or overbroad. While not endorsing the policy as “wise or advisable,” the court left it to “school boards and administrators to decide whether to attempt to write and apply similar guidelines”10 which do not, on their face, violate the 1st Amendment. But the case was remanded to require deletion of one guideline from the policy that referred to invasion of privacy or endangering the “health or safety of another person” because attempts to “proscribe speech” of that nature are impermissible.11
The Minnesota Court of Appeals, ruling in Lewis v. St. Cloud State University, 693 N.W.2d 466 (Minn. App. 2005) (rev. denied Minn. 06/14/05), held that the university was immune from lawsuits for defamation in its student-run publications. The libel lawsuit was brought by a faculty member, who claimed he was libeled by the student newspaper, against St. Cloud State University—a member of the Minnesota state college and university system (MnSCU). The state and MnSCU were held immune based on the MnSCU policy prohibiting censorship of student newspapers by school officials. The institution could not be sued for libel because, “unlike a private publisher, [it has] no control over the content” of the campus publications.
But a high school principal’s proscription of a student’s wearing a sweatshirt carrying the message “Straight Pride” was enjoined as a violation of the student’s 1st Amendment rights by U.S. District Court Judge Donovan Frank in Chambers v. Babbitt, 145 F. Supp.2d 1068 (D. Minn. 2001). Applying the four-part balancing test for injunctive relief, Judge Frank granted a preliminary injunction against the prohibition. Applying Tinker-like reasoning, he noted that there was no “substantial disruption of or material interference with school activities”12 associated with the student’s wearing the shirt, which made the principal’s conduct constitutionally infirm. But Judge Frank added some avuncular advice, urging the students, parents, administrators, and other members of the school community “to resolve these issues within their community, rather than the court, if the best interests of all students and children … are to be served.”13
The 1st Amendment rights of students have occasionally been viewed by the courts in this jurisdiction in light of potential violence. In Pratt v. Independent School District No. 831, Forest Lake, 670 F.2d 771 (8th Cir. 1982), the 8th Circuit affirmed a ruling of U.S. District Court Judge Miles Lord, barring removal of the film “The Lottery” from the high school curriculum. The cinema, a version of an allegorical short story in which an insular community selects one person to be stoned to death each year, was suppressed by the school board because of opposition from parents in Forest Lake, who objected to “violence” allegedly in the film and its purported impact on students’ religious and family values.
The court, however, condemned censorship of the film, finding that the board’s objection to the film had “religious overtones” and that the film had been banned because of “ideological content.” Forbidding the viewing of the film on these grounds constituted a violation of 1st Amendment rights of the students because no “substantial reasonable governmental interest exists for interfering with the students’ right to receive information.”14
Although the movie was not a “comforting film,” what was “at stake is the right [of students] to receive information and to be exposed to controversial ideas—a First Amendment right.” Banning the film because of opposition to its ideological theme would establish an unfavorable “precedent … for removal of any such work” from a school curriculum, which would be constitutionally impermissible.15
Also rejecting a claim of violence, the 8th Circuit upheld the rights of faculty members at the Duluth campus of the University of Minnesota (UMD) to display pictures of themselves posed with military weapons as part of a display of faculty photographs in Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997). The school barred the photographs on grounds of their violent tenor, a decision that the court deemed to be violative of the principle under the 1st Amendment that “generally prevents the government from proscribing speech of any kind simply because of disapproval of the ideas expressed.”16
But the 8th Circuit, in a decision out of Arkansas, upheld expulsion of an 8th grader because of certain writings he composed that allegedly threatened a classmate in Doe v. Pulanski County Special School District, 306 F.3d 616 (8th Cir. 2002) (en banc). The document described how the writer anticipated raping and murdering a classmate. Its content and tone would be viewed as threatening by a reasonable recipient, which negated any 1st Amendment rights on the part of the student who prepared the document. Noting the growing trend of student violence, the court concluded that because the letter constituted a “true threat,” disciplinary action was not violative of any 1st Amendment rights of freedom of expression. Whether the expulsion lacked “wisdom or compassion” was not a decision for the courts to make but is “best left to the voters who elect the school board.”17
The issues raised in these cases, from Tinker to Morse, are hardly academic. They not only involve the rights and responsibilities of students, but they also affect faculty, administrators, and additional school personnel, along with other members of the academic community.
While the Constitution may not stop at the “schoolhouse gate,” as was stated in the memorable mantra in Tinker, litigants, the bar, and the bench are continually refining the contours of permissible student advocacy consistent with other vital concerns.
As these cases illustrate, there is a great deal of fluidity in the flow of the 1st Amendment rights of students. The volatility in the case law make it difficult to predict how the law will evolve as it progresses from Tinker to Morse to chance.
1 Tinker v. Des Moines Independent Community School District, 383 F.2d 988 (8th Cir. 1967).
2 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505 (1969).
3 Id., at 515 (Black, J.).
4 Morse v. Frederick, 127 S.Ct. 2618, 2644 (2007) (Stevens, J.).
5 Stanley v. McGrath, 719 F.2d 279, 283 (8th Cir. 1983).
6 Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368 (8th Cir. 1986).
7 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-71 (1988).
8 Id. at 271.
10 Bystrom v. Fridley High School, 822 F.2d 747, 755 (8th Cir. 1987).
11 Id. at 753-54.
12 Chambers v. Babbitt, 145 F. Supp.2d 1068, 1071 (D. Minn. 2001).
13 Id. at 1074.
14 Pratt v. Independent School District No. 831, Forest Lake, 670 F.2d 771, 777 (8th Cir. 1982).
15 Id. at 779.
16 Burnham v. Ianni, 119 F.3d 668, 674 (8th Cir. 1997).
17 Doe v. Pulanski County Special School District, 306 F.3d 616, 627 (8th Cir. 2002) (en banc).
Supreme Court on School Issues
Morse v. Frederick—the “bong” case—was one of a series of cases before the Supreme Court during the 2006-07 term dealing with students and educational issues. In Zuni Public School Dist. No. 89 v. Dept. of Education, 127 S.Ct. 845 (2006), the high court held that the secretary of the Department of Education may consider the number of pupils in a school district as well as the district’s per-student expenditures in allocating funds under the Federal Impact Aid Program, 20 U.S.C. §7702 et seq. In Winkelman v. Parma City Sch. Dist., 126 S.Ct. 2057 (2006), parents of a disabled child were allowed to pursue a claim under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, because the statute gave them an “independent” right to sue on their own behalf. In Parents Involved in Community Schools v. Seattle School Dist. No. 11, 127 S.Ct. 544 (2006), a pair of consolidated cases, the Court struck down public school student enrollment plans based on racial considerations in an attempt to combat de facto segregation, holding that the race-based programs violate the Equal Protection Clause of the 14th Amendment.
Two other cases dealt with 1st Amendment rights, but not those of students. In Davenport v. Washington Ed. Assn., 27 S.Ct. 2450 (2007), the justices upheld a state law requiring a public sector teachers union and other public sector labor organizations to receive “affirmative authorization” from dues-paying nonmembers to spend their fees for election-related purposes. The Court held that the measure did not violate the 1st Amendment associational and expressive rights of the union or its members. In Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 127 S.Ct. 1927 (2007), a measure prohibiting high school coaches from recruiting students from middle schools was upheld because the proscriptive restriction did not transgress the 1st Amendment right of coaches.
MARSHALL H. TANICK and PHILLIP J. TROBAUGH are attorneys with the law firm of Mansfield Tanick & Cohen, P.A. located in Minneapolis and St. Paul. Mr. Trobaugh heads the law firm’s Education Law Department. Mr. Tanick represents a number of parties in connection with academic matters. The authors appreciate the assistance of Stefan Johansson, a law clerk with the firm, in preparing this article.