Whether or not you’re a parent with kids in school, you’ve probably heard stories like these. A public-school student refuses to salute the flag on the grounds that her religion forbids it. A 15-year-old wears an armband to class to protest war. Another makes a sexually suggestive speech to support a friend’s student-government election campaign. At a school-sponsored off-campus event, a boy wears a T-shirt that seems to support drug use; student editors prepare to run stories in the school newspaper about the potentially controversial topics of teenage pregnancy and divorce; a girl mutters an insult under her breath that is overheard by a teacher who takes offense; friends text mean words about a classmate; a teenager posts angry thoughts about a teacher on Facebook. When school officials punish these different kinds of expression, what recourse do the students have? And what about their parents—where is the line between parental authority and a school’s jurisdiction? Does the speech of students—young, immature, impressionable, dependent—warrant the same First Amendment protections granted to adults?
Catherine Ross’s answer is a resounding yes. Ross, a professor at the George Washington University Law School, makes a compelling case in Lessons in Censorship for the importance of according students free speech not only as a constitutional right, but also as a vital democratic practice. “Schools have a unique opportunity and obligation to demonstrate the importance of fundamental constitutional values as an integral part of preparing students to participate in a robust, pluralist democracy,” she writes. “And the best way of transmitting values,” she stresses, is by “showing how the principles that govern us work in action.” She readily admits that striking the right balance between discipline and freedom is difficult. The waters of “free speech rights in public schools” are “unsettled” and “rife with rocky shoals and uncertain currents,” she notes, citing the opinion of the Second Circuit panel (which included Sonia Sotomayor) in Guiles v. Marineau, a 2006 case about a school banning a student’s T-shirt that criticized President George W. Bush as “a chicken-hawk president and…a former alcohol and cocaine abuser.” Despite the fragility and uneven application of constitutional principles, Ross thinks they make it possible to distinguish between genuinely insubordinate behavior and the expression of critical opinions, between unacceptable bullying and tolerable (albeit stinging) insults. The trouble, from her point of view, is that recent court rulings have muddied the waters that were once clear.
The high-water mark for clarity came in 1968 with the Supreme Court ruling in Tinker vs. Des Moines Independent Community School District. John Tinker was a 15-year-old public-school student who, along with his sister and a friend, planned to wear black armbands to school to protest the Vietnam War. When school officials learned of the planned protest, they forbade the wearing of armbands and threatened to suspend anyone who didn’t comply. Tinker was willing to meet with the board to explain the reasons for his action. The board rejected his offer; he defied the prohibition and was duly suspended. The case he brought against the disciplinary action eventually reached the Supreme Court, which ruled in Tinker’s favor. In a 7-to-2 decision, the majority noted that students “are ‘persons’ under our Constitution…. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” The Court placed two limits on such expression. First, it must not “materially and substantially” interfere with school discipline; second, it “must not collide with the rights of other students to be secure and let alone.” Tinker, Ross explains, “provided a special framework for evaluating when schools violate students’ affirmative right to speak that balances the constitutional rights of individuals with society’s need for schools that can fulfill the many demands we place on them.”