Leila Bannon
Mr. Dwyer
Honors English I 5-6 B
3 April 2020
Freedom of Expression in Schools and the Sway of the Supreme Court
“If I speak, I am condemned. If I stay silent, I am damned!” (Victor Hugo, Les Misérables). When this quote was written, the First Amendment of the U.S. Constitution was simultaneously being crafted. The First Amendment states that, “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.”(First Amendment, U.S. Constitution). Just like the young people in Les Misérables, young people today are still fighting to assert their First Amendment rights. History has shown that depending on the liberal versus conservative sway of the court, the amount of rights students have can be affected.
In 1969, the U.S. Supreme Court decided in favor of students from Des Moines, Iowa. Siblings Mary Beth and John Tinker were two of five students who got suspended from their public school in Des Moines for wearing black armbands to protest the Vietnam War. Mary was the first student to be suspended, then the other four followed. Mary and John’s family went to the school board to protest the suspension because they believed their First Amendment right to free expression had been violated when they were suspended. The school board dismissed the issue, claiming it was not important enough to carry into the next meeting. ACLU attorney Craig Sawyer represented the students at the school board meetings. They continued to push the issue with the school board, with no results. Sawyer and the students took the school to court and asked the school to rescind their edict, arguing that while the school needs to maintain order in classrooms, the students also have the right to freely express themselves. The students lost in the Federal District Court of Iowa: The judge said discipline in the classroom was more important than the individual students’ First Amendment rights.. When the students appealed to the U.S. Court of Appeals for the Eighth Circuit, the court was split down the middle, which automatically appealed the case to the Supreme Court. The Supreme Court decided on February 24, 1969 that the ban on arm bands was a violation of the students’ First Amendment rights, in a 7-2 vote.
The first arguments for the case were heard on November 12, 1968. Dan Johnston, a lawyer arguing for the students, pointed out that the school district had previously allowed students to wear political buttons that provoked hateful speech, such as Nazi symbols. He went on to say that the students wearing armbands made no disruption in their classrooms. Although he made this argument, Justice Hugo Black, after reading the trial records incorrectly, said they did cause a disruption. To this, Alan Herrick, the attorney representing the school district made the argument that the administration shouldn’t wait for disruption, because it could break out any minute, and by suspending the students their motivation was a precaution to avoid violence and disruption. Chief Justice Warren disagreed, and said if the political buttons were allowed, the armbands must also be allowed. Justice Byron White agreed with Warren, making the vote 7-2 in favor of the students. Justice Abe Fortas wrote the majority opinion for the court, stating that students or teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines). This means that the school’s ban on armbands is a violation of the student’s right to free expression under the First Amendment. The court also ruled that in order to suspend a student because of their expression, the student’s action must “materially disrupt classwork or involve substantial disorder or invasion of the rights of others…” (Tinker v. Des Moines).
In the late 1980s, the court was faced with another major First Amendment case in schools, Hazelwood v. Kuhlmeier. Students at Hazlewood High School sued their principal, journalism teacher and school department after two pages of the school newspaper had been deleted by the principal. The Spectrum, the school newspaper, was a product of the Journalism II class and school sponsored. In The Spectrum’s last issue of the year, there were two articles that the principal deemed inappropriate for the school setting. One article concerned teen pregnancies at the school, and although there were no names in the article, the administrators believed that the subject’s anonymity was not properly protected. The second article concerned the effect of divorce on students. One student who was interviewed and identified by name, made degrading comments about his father, who wasn’t given the opportunity to reply to the comments, which the principal deemed unfair. The principal made the decision to completely delete the pages that the articles were on because there wasn’t enough time to modify the layout or rewrite the articles because they were nearing the end of the school year.
The case was brought to the District Court, where the school won. The judge decided that due to the fact that the paper was school sponsored it made it not separate from the school, and allowed the deletion of the two pages. When the students appealed to the Court of Appeals, it reversed the lower court’s decision in favor of the students because although the paper is sponsored by the school, it is a public forum protecting the student’s right to free speech and freedom of the press. Although they did not say that the school could never censor the school newspaper — under extreme circumstances the newspaper can be censored — but the topics of the deleted articles were not extreme enough. In response, the school appealed to the Supreme Court. It decided that because The Spectrum was sponsored by the school and a part of the Journalism II class curriculum, the school was able to delete the articles to avoid association with the topics. They also reasoned against the Court of Appeals, saying it is not a public forum, but a limited forum. The final reason for the court’s decision was that the topics could be deemed inappropriate for some audiences. With these reasons, the court decided 5-3 in favor of the school.
Both Tinker v. Des Moines and Hazelwood v. Kuhlmeier are critical cases because they decided what First Amendment rights students have in schools yet they show how those rights can shift depending on the conservative or liberal views of the justices. Tinker ruled that freedom of speech in public schools must be protected as long as it is not disruptive. However, the dissenting opinion in Tinker could show how the court may lean in the future. It said students could not “‘use the schools at their whim as a platform’ (Tinker v. Des Moines) for their anti-war views,” (Irons, Peter, The Courage of Their Convictions). While Tinker v. Des Moines was a huge step forward for students’ First Amendment rights, Hazelwood took a step backward. The court decided in favor of the school, saying that there was no violation of students’ First Amendment Rights because the newspaper was a limited forum and school sponsored, allowing administrators to have the final say in what gets published by students.
While the more conservative court’s Hazelwood decision curtailed the First Amendment rights of students, its dissenting opinion, however, reflects back to the majority decision made in Tinker, and could point toward where the court could go next. Justice Brennan wrote the dissenting opinion with the help of Justice Marshall and Justice Blackmun. The dissenting justices believed that, “Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from (a school principal) to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our constitution guarantees.” (Hazelwood v. Kuhlmeier). Students’ rights are affected by the sway of the court, because their actions can be either more or less protected based on whether the court is liberal or conservative. This could influence a contemporary case in neighboring Cape Elizabeth, Maine, where a high school student took her school to court claiming that her First Amendment rights were violated when she was punished for posting a note in the girl’s bathroom about a serious safety concern at her school. Although it has not yet reached the Supreme Court, it is still a significant case because it is local, and the issue of her case is very prominent in the media at the moment.
Aela Mansmann (A.M.) is a current sophomore at Cape Elizabeth High School. A.M. was very concerned as she percieved there to be a school culture that ignored sexual assault. She had spoken up during her freshman year by going to school administrators and then to the school board but felt her concerns were ignored as nothing was done. On September 16, 2019, at the start of her sophomore year, A.M. posted a note in the girls bathroom saying, “THERE IS A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS” (A.M. v. Cape Elizabeth Sch. Dist.). A.M. was not the only student posting notes in the bathrooms: Several other girls also posted the same note in other bathrooms around the school. The notes were quickly brought to the school’s attention, and administrators started a lengthy investigation to find out who wrote the note and who was the alleged rapist. On September 20, the principal sent a letter to the school community that said there was an incident, not saying more as to what happened. Rumors began to circulate at the school, and one student was ostracized by his friends due to the issue, and stayed out of school for several days. Two weeks after the principal sent out his original letter, A.M. spoke with the press regarding her concern about how the school has dealt with sexual assault. Later that day, A.M. received a three-day suspension from school. The other girls who posted notes did not talk to the press and received shorter suspensions. Some suspected a correlation between the longer suspension and A.M. talking to the press. The principal and vice principal wrote a letter to A.M.’s family, which said that, “any further actions of this sort, directed to the student who was targeted in this instance or any other student, may result in further and more severe consequences up to and including suspension and possible expulsion” (emphasis added by the judge, A.M. v. Cape Elizabeth Sch. Dist.). On October 9, the principal and vice principal wrote a letter to the community concerning the situation. In this letter, they discredited the girls and the media, and implied that their accusations weren’t true. They also informed everyone that if the girls maintained good behavior through their high school career, their records would be expunged nearing the end of their senior year. Two days later, the superintendent agreed with the principal’s decision, and informed A.M. that her suspension would start on October 15. A.M. filed in court for preliminary injunction, and a hearing was held on October 21; the judge filed his decision on October 24.
Maine District Court Judge Lance Walker, who presided over the case, stated that there were four standards that A.M. had to meet in order to win the case. The standards were A.M.’s likelihood of success, a likelihood of irreparable harm, a balance of equities in A.M.’s favor, and a service of the public interest. The likelihood of success means that A.M. had enough merits for Judge Walker to even view the case. He also looked at past cases for precedent to see if the plaintiff would prevail. He analyzed Tinker v. Des Moines, and said that she had a likelihood of success because of the Tinker standard: A.M.’s note, similar to Mary Tinker’s armband, did not cause any disruptions in the school.
A likelihood of irreparable harm was also found in favor of A.M.; Judge Walker decided A.M. would suffer irreparable harm if he did not rule in her favor. This is because she would miss school due to the suspension, it would be on her permanent record, and her “ability to speak on the topic of sexual assault, or serve as a victim advocate would be chilled.” (A.M. v. Cape Elizabeth Sch. Dist.). Each of these examples of irreparable harm are significant, especially her loss of freedom to speak about sexual assault for the rest of her high school career (due to the letter written by the principal threatening her expulsion). Judge Walker also highlights that, “as the Supreme Court has explained, ‘the loss of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury’ Elrod v. Burns, 427 U.S 347, 373 (1976).” (A.M. v. Cape Elizabeth Sch. Dist.).
The next standard A.M. had to meet was the balance of equities, which takes her irreparable harms and compares them to the harms that the school will suffer. Judge Walker argued that the only harm that the school would suffer would be the delay in A.M.’s punishment. The school can still alter and enforce their bullying policy after the case if A.M. wins. Judge Walker also wrote of A.M.’s situation, “As the First Circuit has noted, this type of harm to First Amendment rights is significant, and the threat of expulsion – an extraordinary response for a student with no other disciplinary record – solidifies the significant chilling effect of the punishment.” (A.M. v. Cape Elizabeth Sch. Dist.).
The final standard that had to be reached was public interest. This standard evaluates whether A.M.’s actions served the public interest. In her declaration to the court, A.M. said that the school was punishing her for engaging in political speech “on one of the most pressing issues of our time—the prevalence of sexual violence and the danger of inaction by those in positions of power.” (A.M. v. Cape Elizabeth Sch. Dist.). Judge Walker’s discussion on public interest stated that if he rules in favor of the school, administrators and teachers would be able to discipline students based on their political or social beliefs. “If school administrators receive carte blanche to tamp down and vet non-frivolous outcries on topics of social justice, expressed in areas generally associated with free student communication, where would that leave us?” (A.M. v. Cape Elizabeth Sch. Dist.). Judge Walker also stated that democracy “‘depends on the free flow of ideas, especially those that are discomfiting.’ United States v. Schwimmer.” (A.M. v. Cape Elizabeth Sch. Dist.). Judge Walker believed that if he ruled in favor of the school, it would create a precedent that schools could “control messaging about the health of their high school environment” but schools cannot force “whatever political and social views” they believe (A.M v. Cape Elizabeth Sch. Dist.). Due to these reasons and standards met, Judge Walker ruled in favor of A.M., rescinding her suspension, because her action of leaving a note in the girl’s bathroom is protected speech under the First Amendment.
History shows that the judicial system does not move forward in a straight line. Tinker v. Des Moines in the late 1960s, decided that students’ rights are not left at the schoolhouse gate. The dissenting opinion, however, argued that no one should have the right to demonstrate where or whenever they please. The dissenting opinion has similarities with the 1980s case, Hazelwood v. Kuhlmeier majority opinion, because they both alleged that administrators can control what students say based on their personal political views. Yet Judge Walker did not concur when he ruled that A.M.’s First Amendment rights were violated. By doing so, Judge Walker circled back to Tinker v. Des Moines, which proves that the court is malleable, and students’ rights are affected by this movement between liberal and conservative justices in the court. Based on these swings, one can predict that if A.M. v. Cape Elizabeth Sch. Dist. reaches the Supreme Court, it will rule in favor of A.M. based the ruling set by Judge Walker, which says that administrators cannot restrict students’ free speech based on their personal, social or political views. The Supreme Court likely would also look back to Tinker v. Des Moines as Judge Walker did, and see that A.M.’s note, which was political in nature, was not disruptive so therefore her actions are protected under the First Amendment.
Works Cited
Admin. “Notable First Amendment Court Cases.” Advocacy, Legislation & Issues, 27 Feb. 2018, www.ala.org/advocacy/intfreedom/censorship/courtcases#fes.
“Facts and Case Summary – Hazelwood v. Kuhlmeier.” United States Courts, www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-hazelwood-v-kuhlmeier.
Harrison, Maureen, and Steve Gilbert. Schoolhouse Decisions of the United States Supreme Court. Excellent Books, 1997. pp. 140 – 153.
Irons, Peter H. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court . Penguin Group , 1988. pp. 233 – 242.
“Religious Liberty: Landmark Supreme Court Cases.” Bill of Rights Institute, billofrightsinstitute.org/cases/.
“Tinker v. Des Moines: Protecting Student Free Speech.” National Constitution Center – Constitutioncenter.org, constitutioncenter.org/blog/tinker-v-des-moines-protecting-student-free-speech.