By John W. Whitehead
September 12, 2012
In 2002, high school senior Joseph Frederick earned a five-day suspension for holding up a banner with the message “BONG HITS 4 JESUS” as the Olympic Winter Games torch relay passed his high school. And as recently as September 2010, students in Baltic High School in South Dakota were banned from wearing Keep A Breast Foundation’s “I ♥ Boobies” Bracelets, intended to raise awareness for breast cancer.
In his new book Let the Students Speak!, First Amendment scholar David L. Hudson, Jr. gives a detailed history of student free speech. Hudson begins with the earliest cases from the 19th century and he introduces the earliest student rights heroes: the Jehovah’s Witnesses. In 1936, at least 134 students in thirteen states were expelled for refusing to salute the American flag at school, claiming idol worship went against their religious beliefs. The fight for student rights only increased in the 60s and 70s, with the cases of Civil Rights activists and war protestors. In 1964, several students at a Philadelphia high school were suspended for wearing “Freedom Now” buttons honoring Civil Rights martyrs.
Then in December 1965, sixteen-year-old John Tinker and four of his classmates were suspended for wearing black armbands to school in honor of the soldiers who died in Vietnam and in opposition to the war. Tinker filed suit against the school district, taking his case all the way to the U.S. Supreme Court, and ultimately changing the law, for the better, for countless students. On February 24th, 1969, the U.S. Supreme Court issued its momentous decision in Tinker v. Des Moines Independent Community School District, in favor of the students. As Hudson recounts in his book, Tinker was a huge victory for student rights. “The highest court in the land,” Hudson writes, “had ruled that [students] had a voice in their own schools.”
The 1980s, writes Hudson, “weren’t so propitious for students,” however. The U.S. Supreme Court became more conservative with the addition of new justices and society retreated “from some of the perceived excesses of the sixties and seventies,” Hudson argues. In fact, two landmark Supreme Court cases, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, “represented a significant step away from the protections of Tinker.” The Fraser case served as a “warning shot” to students, giving school officials more control over student speech. And according to Hudson, Hazelwood was a “death knell for student rights,” giving schools authority to censor articles in student run newspapers.
With the complex task of providing a safe environment for students in this post-Columbine era, many school officials, Hudson believes, do not consider First Amendment rights a high priority. In a time of zero tolerance, student’s freedom of expression means little. Hudson speaks to various students who were suspended for violent-themed writings or drawings, even when the pieces in question were class assignments or entries in personal journals. Texas seventh grader Christopher Beamon was incarcerated for a Halloween story he wrote for an English class—an assignment for which his teacher gave him an A.
Hudson works to remind students that they must continue the fight for free speech. “The battle for student free speech rights rages on in a dizzying array of contexts,” writes Hudson, from cyber bullying and book banning to controversies over tattoos and gay and lesbian T-shirts. And in the age of the Internet, there is still much uncertainty over how far school authority should reach. But Hudson is hopeful that soon all students will go to schools “where debate and discussion triumph over control and censorship.”
David L. Hudson, Jr. is a First Amendment scholar with the First Amendment Center at Vanderbilt University, where he writes for the Center’s website, speaks to the media and lectures on a variety of First Amendment issues. As Adjunct Professor of Law, he teaches First Amendment and Professional Responsibility classes at Vanderbilt Law School. He also teaches classes at Middle Tennessee State University and the Nashville School of Law. He is the author, co-author or co-editor of more than 30 books, including The Encyclopedia of the First Amendment (CQ Press, 2008)(one of three co-editors), The Rehnquist Court: Understanding Its Impact and Legacy (Praeger, 2006), The Bill of Rights: The First Ten Amendments to the U.S. Constitution (Enslow, 2002), and the Handy Supreme Court Answer Book (Visible Ink Press, 2008). He has written several books devoted to student-speech issues and others areas of student rights, including Let the Students Speak! (Beacon Press, 2011). He serves as a First Amendment contributing editor for the American Bar Association’s Preview of United States Supreme Court Cases. His articles have been published in the National Law Journal, ABA Journal, and Tennessee Bar Journal. He is a member of the First Amendment Lawyers Association and a graduate of Duke and Vanderbilt Law School.
David took a few minutes out of his busy schedule to talk with me about the First Amendment rights of students.
John W. Whitehead: In your book, you assert or posit that you believe students are the future of our constitutional democracy. However, in public schools students’ freedom of speech and expression is greatly limited. Do we really have free speech in our public schools?
David Hudson: I don’t think we have enough free speech in our public schools. You have written about the criminalization of America’s school children. I believe you and others have noted the similarity between schools and prisons. Unfortunately, students live in an environment where lip service is paid to freedoms found in the Bill of Rights. Students don’t get to experience their freedoms on a day to day basis in their interaction with peers and school officials. So while we have certainly some level of free speech, I think that it has waned since the height of the Supreme Court’s Tinker precedent. There have been some disturbing trends over the last decade or so that give grave cause for concern.
JWW: What trends are you talking about?
DH: Greater censorship. An example is the rise of zero tolerance. A kid plays cops and robbers and is expelled from school for 90 days. There has also been a growing tendency to increase school jurisdictional authority by punishing students for off-campus on-line speech. Authorities assume that the school can reach out beyond the schoolhouse gate and punish kids for what they do in their homes. The inclination to worry about students being bullied is natural and valid. However, in the push for anti-bullying and, in particular, cyber bullying policies, I think sometimes we go too far. School shootings like Columbine certainly produced a dramatic reduction in student freedoms, especially those found in the First and Fourth Amendments. A related trend is fear of new technology. Lastly, there is the composition of the Supreme Court. The Court that decided Tinker was more sensitive to the issue of student rights than the Roberts Court.
JWW: I have noticed that foreign students know quite a bit about the Bill of Rights. But when I talk to American high school students and even law students, they have trouble articulating what is in the First Amendment. Do you think that contributes to the problem?
DH: The lack of civic education is alarming and is something we need to improve. We certainly need a greater national initiative to improve civic education.
JWW: I often hear from school officials who don’t want the courts involved in school matters. They believe they are better situated to determine what is appropriate in the schoolhouse. However, there has to be a neutral arbitrator or court that will step into certain school situations and apply the law. For example, kids who wear a confederate flag on T-shirts into a school. We get those kinds of cases. To what extent do you think school officials may be better qualified than a court when an alleged disturbance is caused by free expression?
DH: If we simply delegate everything to school officials, then constitutional rights will shrink. School officials don’t want the courts being super-personnel managers, but the reality is without the courts we would not have fundamental protections for students, or public employees. The Court, not school administrators, gave us the Tinker and Pickering cases. There has to be a place for judicial review of school official policy. It is not sufficient to rely on the good will of school officials who often do not act consistently with the Constitution.
JWW: I am concerned that the courts are giving almost complete deference to schools. Historically, the Warren Court, for example, carefully examined the civil liberties aspects of these cases. To me it seems the Roberts Court isn’t looking at those key issues.
DH: The Roberts Court is interesting. It has had some strong points. Snyder v. Phelps and U.S. v. Stevens were good opinions. I think Chief Justice Roberts wrote both of them. In those situations, I thought the Court did a good job explaining that legislatures don’t have the authority to create new unprotected categories of speech. But I do agree with you that in the public school context, it’s a mixed bag with the Roberts Court. I often wonder if the current Court or the Rehnquist Court or the Burger Court would decide the Tinker case the same way today.
JWW: Do you have your doubts about that?
DH: I wonder about it sometimes.
JWW: I have my doubts about it. Chapters Three and Eight of your book, Let The Students Speak!, aptly discuss religious freedom. What role do you think religion plays, and should play, in the right of free speech for students? For example, consider a student who wants to mention Jesus, Yahweh, or Allah at a graduation speech being censored by school officials. What do you think of that?
DH: Unfortunately, some courts have over-reacted and claimed that schools are religion free zones. I don’t think that is correct. Students should have the right to engage in religious expression. When schools censor religious expression, they violate the most fundamental precept of our free speech jurisprudence: government officials should not engage in viewpoint discrimination of private speech.
JWW: Do you think it is appropriate for children to speak about drugs, sex and violence in the schools? A lot of students complain that political correctness has greatly limited their right to talk about different subjects. Is there a line you draw with these topics? Why shouldn’t students be able to bring up these issues in the classroom and speak about them in essays?
DH: Certainly I believe that students should not be punished for general speech in an essay. Older students especially, should have the right to discuss these issues. Yes, without a good teacher in command of the classroom, some discussions could get out of hand. However, the general distrust and fear of freedom of speech makes schools over restrictive, unfortunately. I do think that there should be more discussion of pressing and contemporary issues in schools.
JWW: A lot of public school teachers I talk to have very little knowledge of constitutional rights. What’s more, teachers seem to think they are in school to keep order, not to promote debate and free speech. Part of the problem is this lack of civic education. Teachers don’t know much about free speech. Thus, when a student says something that seems really off balance, they try to stifle it, censoring the student. We had a case where a student wrote about Jesus as a historical character. The teacher gave the paper back to the student saying it is illegal to write about Jesus in public schools. To me it seems a little crazy that a teacher in the United States is saying those kinds of things.
DH: I agree that there is a need for better civic education among teachers. I don’t know how to affect that, but believe teachers ought to be reading your weekly commentaries and our websites. It is too bad that so many school officials focus on order and act in an authoritarian manner. They don’t think about freedom as much as they should.
JWW: We currently have a case in the Ninth Circuit Court of Appeals where high school students were ordered to remove their flag T-shirts because they might be seen as offensive on Cinco de Mayo.
DH: I wrote about that case. It is a tragedy to me that those kids were prohibited from wearing those T-shirts.
JWW: I was asked about what the schools should have done. I responded by saying, “If school officials really wanted to address this issue then why not have a school wide debate the week before on the issue of the flag and Cinco de Mayo and get all the students involved?” We would not be involved in these cases if the schools would do their job and promote free discussion.
DH: Exactly. Often times in the rush to censorship we miss a lot of potentially positive teaching moments. That to me is a particular travesty of justice in the Cinco de Mayo case. I was appalled when I read the district court opinion.
JWW: Then there was the case of the 8th grader who wrote a Halloween piece that was considered so violent he was sent to jail.
DH: Yes. Christopher Beamon. I believe he may have been a 7th grader. He wrote a Halloween essay on which he received an “A.” Another student’s parent complained and Beamon eventually spent 5 or 6 days in juvenile detention until the media got a hold of it and finally he was released. That is a classic example of gross over-reaction.
JWW: That it was a creative writing assignment is amazing.
DH: Some counter by saying Dylan Klebold of Columbine wrote a very chilling essay in his English class in February of 1999 that his English teacher found grisly and horrible. Sometimes you can detect a potential problem. Unfortunately, the other approach has led to gross over-reaction. Stephen King wrote a good piece on the issue, saying if he got judged by the content of his writing, they would have kicked him out of school. Often times the zero tolerance mentality has certainly spread far beyond its appropriate or original reach to free speech. With creative writing, the writer should have a pretty broad license to express him or herself.
JWW: Of course. To give you an example, when I was in grade school I wrote a couple of essays. The teacher came and led me to the principal’s office and they counseled me. I’d written on space aliens invading the Earth. I never forgot that experience.
DH: I was in high school and I was talking about basketball and made the statement that, “The Celtics suck.” I got kicked out of class, and I had to go to see the administrator before I was even allowed back in school. I remember a student the previous week had actually dropped the “F” bomb and wasn’t punished at all. That selective punishment always kind of stuck with me as grossly unfair. I thought it was too much, too draconian a punishment for the speech that I uttered even though I could have chosen my words better.
JWW: Where do you decide that violent writing indicates eminent violent danger? Is there a way we can detect that danger so that we don’t destroy free speech?
DH: I think that you have to examine the writing to determine if a specific individual is being targeted. You have to look at the history of the student and determine if the student has violent propensities or a really bad disciplinary record. There conceivably could be instances where a true threat exists. However, we have to be very very careful that we don’t overreact and confuse free speech with true threat. True threats are a narrow categorical exception to the First Amendment.
JWW: Let’s look at strict dress codes. For example, some codes don’t allow students to have any graphics on a T-shirt. Even the polo symbol on Ralph Lauren is suspect because the little guy on the horse has a mallet in his hand.
DH: When I speak to public school students, the number one complaint they have is that they are not allowed to dress and express themselves as they like. I understand that some say we need these uniforms because as social equalizers, they are conducive to learning. But I think restrictive dress codes squelch individuality. Young people need to have the right to express their preferences for music, sports, political sayings and so on. When you trample that, you take away an important avenue to assert beliefs.
JWW: Do you think Tinker supports dress codes or no dress codes -- that is, in the so-called disruptive context?
DH: If you look at the larger principle of Tinker, it is certainly about freedom of expression for students. Unless the student expression is substantially disruptive or unless school officials can reasonably forecast a substantial disruption, then the default position should be freedom.
JWW: Do you think that students have more or less freedom of expression on the internet? We have gotten a few cases in here, for example, where a student criticizes a teacher on Facebook and is disciplined by school officials.
DH: I get those all the time. In 1998 Judge Rodney Sipple wrote a federal district court opinion in the Beussink case, where he said “disliking student speech is not an acceptable justification for limiting student speech” or something to that effect. Students should have the right to make critical comments. And school officials should not be punishing students simply for offensive or inappropriate speech. Often times students are punished for speech that doesn’t fit into the categories of Tinker. On one hand, you have school officials vying for jurisdiction when there is a substantial disruption to the school environment but, on the other hand, you have kids being punished simply for speech that school officials don’t like.
JWW: A lot of young people feel like they are viewed as suspect, as the enemy. Many believe adults think there is something wrong with them. What do you think has brought about the idea that the young people and what they have to say is dangerous? Is there a historical nexus?
DH: We’ve got a different composition of the Court. We have a fear of new technology. We have a decline in social activism and an opposition to the perceived excesses of the 60s and early 70s. Then there is the fear of the school shooter even though, as you wrote in an excellent commentary a couple years ago, there really is no one profile of the school shooter.
JWW: An FBI study has proven that.
DH: I think there are a multiplicity of factors. I think at the root, it may be this absolute under-appreciation of civic education and constitutional freedoms by government and school officials. I think there needs to be a fundamental shift to civic education and to teaching students truly what the freedoms in the Bill of Rights mean as opposed to this authoritarian regime concept that prefers censorship to teaching.
JWW: What do you suggest students do in order to regain some of their First Amendment freedoms? Is there a solution?
DH: They could peacefully petition for change. They could try to get support from the faculty. A teacher or two could be helpful. They could form groups. Students have rights under the Equal Access Act. They could write either in the school newspaper or the underground newspapers. In some situations, they may have to contact The Rutherford Institute, the Student Press Law Center or other groups dedicated to fighting for freedom.
JWW: Look at your crystal ball. The way things are going now, what do you think the future of free speech is in our schools? What do you project? Be realistic.
DH: I am very concerned. Unless we have a fundamental recommitment to civic education and a move away from this censorship mentality, I am afraid we are going to stay where we are or perhaps get worse.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.