25th Annual Bill of Rights
Art and Essay Contest, 2008-2009

for Students in Grades 7 through 12

TOPIC:  Should students' rights to free speech and
              expression be limited or denied at school?

THE CONSTITUTIONAL PRINCIPLES:

1. Freedom of Speech: The First Amendment to the United States Constitution says "... Congress shall make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble."
    
2. Liberty and Equal Protection: The Fourteenth Amendment to the United States Constitution says "No state shall ... deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court has applied this principle to the United States Government under the due process clause of the Fifth Amendment.

THE QUESTION

Can public school administrators restrict students' rights to freedom of speech and expression at school, or do restrictions on free speech and expression violate the constitution?

BACKGROUND

The United States Supreme Court has stated that students to do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (Tinker v. Des Moines Community School District, (1969)). The right of public school students to freedom of expression is protected by the 1st and 14th amendments to the U.S. Constitution. The California Education Code at section 48907 also gives public school students the right to exercise freedom of speech, including bulletin boards, printed materials, petitions, wearing buttons and the right of expression in official publications, except that "expression shall be prohibited which is obscene, libelous, or slanderous" or which incites students "to create a clear and present danger" of the commission of unlawful acts, violation of school regulations or substantial disruption of school operations.

The U.S. Supreme Court has authorized school officials to restrict students' speech without violating the Constitution if it would cause substantial disruption (Tinker v. Des Moines), if it is lewd or vulgar (Bethel School District No. 403 v. Fraser (1986)), or if it is the school's own speech in an official publication. (Hazelwood School District v. Kuhlmeier (1988)). Recently, the U. S. Supreme Court also permitted a school district to discipline students who displayed a banner that said "Bong Hits 4 Jesus" on grounds that public schools may ban speech advocating illegal drug use. (Morse v. Frederick (2007)). The dissenting justices in Morse v. Frederick, however, disagreed and argue that a "nonsense banner" did not provoke any harm and the government was not entitled to censor student speech based upon its content. Some people have argued that freedom of speech and expression are essential to prepare students for their place in our democratic society and all views must be tolerated unless they endanger our system of government itself. (Bethel School District v. Fraser).

The U. S. Supreme Court has also said that the constitutional rights of students in public schools are not automatically the same as the rights of adults in other settings because of the "special characteristics of the school environment". (Hazelwood School District v. Kuhlmeier, Morse v. Frederick).

Can school officials treat students' free speech differently at school? Can school officials censor or regulate students' free expression without violating the 1st Amendment to the U.S. Constitution?

For more information, see the following ACLU websites:

• www.aclu.org
• www.aclunc.org
• www.acluMontereyCounty.org

For cases and statutes see:

• www.findlaw.com
• www.supremecourtus.gov/opinions/opinions.html