For decades, U.S. courts have ruled that public school students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” as the Supreme Court said in 1968. Show In that case, Tinker v. Des Moines Independent School District, the justices held that high school students who were suspended for protesting the Vietnam War by wearing black armbands to school were protected by the First Amendment’s guarantee of free speech. The standard the court set then, which has been narrowed and focused over the years, was that schools could only punish students for speech that “materially and substantially” disrupted the educational mission of the school. In several subsequent cases, about a student campaign speech full of sexual innuendo, a school newspaper article on teen pregnancy and a student-created sign saying “Bong Hits for Jesus”, the Supreme Court evaluated speech or expression that took place on campus or at a school-sponsored event. And in every case, the justices deferred to school authorities on their judgment of what disrupted their educational mission. A case the court took up this year provided an opportunity for a wider view, specifically about what protections students might have for speech they engage in off-campus and away from school events, including online. School districts and officials were anxious for guidance about the extent to which they can police social media speech by their students, especially with heightened concern about cyberbullying and threats of school shootings. Free speech advocates were worried about the extent to which schools can extend their reach and control over students outside of school grounds and hours, especially given the amount of time teens spend on social media. The June 23, 2021, decision in that case, Mahanoy v. B.L., is both a win and a loss for both sides. The 8-1 ruling, with Justice Clarence Thomas dissenting, did not give either side the clear rules they may have wanted. It says schools are not forbidden from disciplining students in cases of severe harassment and cyberbullying that happen outside school. But it does warn schools that their attempts to regulate off-campus speech will be treated with less deference than they would get when addressing events on campus. A quick synopsisThe case centered on Brandi Levy, who was a high school sophomore in 2017 when she failed to make the varsity cheerleading team at Mahanoy Area High School. She did make the junior varsity team, but expressed her disappointment at not making the top squad through a crude Snapchat post involving raised middle fingers and multiple uses of the F-word. She made the post over the weekend, from a location outside the school campus. Several members of the cheerleading squad saw the post and reported it to officials, who suspended her from cheerleading for violating team-conduct rules. Levy’s parents sued on her behalf, arguing under the First Amendment that the team rules were overbroad and unconstitutionally vague, and that the school had no authority over her off campus speech. The federal district court that first heard the case concluded that Levy’s post did not create the sort of substantial disruption to education that the Tinker ruling’s standard demanded. The Court of Appeals for the Third Circuit held that Levy’s speech happened off campus and outside a school-sponsored event, so Tinker’s standard didn’t apply. The school district appealed to the Supreme Court, noting that the appeals court ruling conflicted with other rulings around the country that had applied the Tinker precedent to off-campus speech. The justices’ reviewThe Supreme Court agreed with both lower courts that the school had violated Levy’s First Amendment rights. But it disagreed with the appeals court’s reasoning that the Tinker case would not apply to off-campus speech. In the majority opinion, Justice Stephen Breyer wrote that the court “did not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.” At minimum, the ruling explains, schools must have the authority to regulate bullying, harassment, threats directed at staff or students, online learning and assignments and cybersecurity for school systems. But the court also expressed reluctance to let schools very broadly regulate students’ off-campus speech, fearing the effect could be severe limits on student speech any time of day or night, in any location. Instead, the justices said courts should be “more skeptical” of schools’ attempts to regulate off-campus speech than when handling on-campus expression. The ruling also reminded schools of their obligation to protect the expression of unpopular opinion. Schools are “the nurseries of democracy,” Breyer wrote, and have an obligation to teach their students about the importance of free speech. As a result of this reasoning, the court found that Levy’s Snapchat post was protected under the First Amendment. It was not substantially disruptive to the school environment, wasn’t targeted at anyone in particular, was not obscene, and did not constitute “fighting words” or incitement to violence. Breyer did observe that Levy’s word choice was vulgar and perhaps juvenile in tone, but said “sometimes it is necessary to protect the superfluous in order to preserve the necessary.” As a result of the ruling, students don’t lose their rights when they enter through the schoolhouse gate – but neither do school officials lose all of their disciplinary power once students leave. [Understand what’s going on in Washington. Sign up for The Conversation’s Politics Weekly.] If so, you’ll be interested in our free daily newsletter. It’s filled with the insights of academic experts, written so that everyone can understand what’s going on in the world. With the latest scientific discoveries, thoughtful analysis on political issues and research-based life tips, each email is filled with articles that will inform you and often intrigue you.
Editor and General Manager Find peace of mind, and the facts, with experts. Add evidence-based articles to your news digest. No uninformed commentariat. Just experts. 90,000 of them have written for us. They trust us. Give it a go. If you found the article you just read to be insightful, you’ll be interested in our free daily newsletter. It’s filled with the insights of academic experts, written so that everyone can understand what’s going on in the world. Each newsletter has articles that will inform and intrigue you. Comment on this article
In this photo taken Tuesday, Aug. 27, 2013, Mary Beth Tinker, 61, holds up an old photograph of herself with her brother during an interview with the Associated Press in Washington. Tinker was just 13 when she spoke out against the Vietnam War by wearing a black armband to her Iowa school in 1965. When the school suspended her, she took her free speech case all the way to the U.S. Supreme Court and won. Her message: Students should take action on issues important to them. "It's better for our whole society when kids have a voice," she says. (AP Photo/Manuel Balce Ceneta.) In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court ruled that public school officials cannot censor student expression unless they can reasonably forecast that the speech will substantially disrupt school activities or invade the rights of others. The decision firmly established that public school students possess First Amendments rights. Tinker remains the seminal decision on student speech. Students suspended for protesting the Vietnam War through black armbandsIn December 1965, a group of parents and students in Des Moines, Iowa, gathered to discuss ways to protest the Vietnam War and proclaim their support for a truce. One of the actions selected was for students to wear black armbands. School officials learned of the plan and quickly passed a policy prohibiting armbands. They continued, however, to allow students to wear political campaign buttons and Iron Crosses. Several students—including Christopher Eckhardt, John Tinker, and Mary Beth Tinker—wore the armbands to school and faced suspension. The armbands caused no real disruption of school activities. The students’ families challenged the suspensions on First Amendment grounds in federal court. A federal district court judge dismissed the lawsuit in 1966, finding that the school rule was a reasonable way to prevent student disturbances. The Eighth Circuit Court of Appeals divided evenly, which allowed the lower court decision to stand. The students then appealed to the Supreme Court and won in a 7-2 decision. Court overturned student suspensionWriting for the majority, Justice Abe Fortas stated 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.” He focused on the fact that school officials could point to no evidence that the armbands would disrupt school activities. He noted that an “official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption.” Fortas also noted that school officials had selectively chosen only one symbol to ban. He reasoned that this indicated that school officials sought to single out “the prohibition of expression of one particular opinion.” Citing Burnside v. Byars (5th Cir. 1966), Fortas articulated what has come to be known as the Tinker standard—school officials cannot censor student expression unless they can reasonably predict that the expression will create a substantial disruption or material interference in school activities or invade the rights of others. Justices Potter Stewart and Byron R. White each wrote short concurring opinions that did not contribute to subsequent First Amendment jurisprudence. Dissenters thought courts should defer to schoolsJustices Hugo L. Black and John Marshall Harlan II wrote separate dissents. Black accused the majority of contributing to the “beginning of a new revolutionary era of permissiveness in this country” and “surrender[ing] control of the American public school system to public school students.” Harlan asserted that courts should defer to the reasonable judgment of school officials unless students carry their burden of “showing that a particular school measure was motivated by other than legitimate school concerns.” He determined that the students in Tinker had failed to meet this burden. Court made exceptions to TinkerIn the 1980s, the Court carved out exceptions to Tinker in Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), and Morse v. Frederick (2007). The Court in Fraser empowered school officials to regulate student speech that was vulgar, lewd, and plainly offensive and in Hazelwood created a more lenient reasonableness standard for reviewing school officials’ regulation of school-sponsored student expression. The Court in Morse ruled that public school officials can restrict student speech that they reasonably believe advocates illegal drug use. Tinker remains the leading student speech precedent for First Amendment jurisprudence. David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009. Send Feedback on this article |