Students and Free Speech: A Need for Clarity from the Supreme Court By Anna Carroll

Students and Free Speech: A Need for Clarity from the Supreme Court

By Anna Carroll

            Since its landmark decision in Tinker v. Des Moines Independent Community School District in 1969, the Supreme Court has rarely granted certiorari to hear cases involving students’ rights to freedom of speech under the First Amendment. In Tinker, the Supreme Court held that “[s]chools could restrict speech only where the speech reasonably foreseeably could have resulted in substantial indiscipline, disruption, disturbance, or disorder, or where the speech would have violated the more or less specified rights of other students or of unspecified non-students.”[1] An often-cited quote from the decision states, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[2] However, these grand words along with the actual holding in Tinker left a lot of room for further discussion on the matter of student speech.

            In 1986, a more conservative Court reexamined limits on student speech. In Bethel School District No. 403 v. Fraser, the Supreme Court distinguished politically motivated speech from “offensively lewd and indecent speech” and held that the latter was not protected.[3]  In the 2007 case Morse v. Frederick, the Court further limited student speech by denying First Amendment protections to speech advocating illegal drug use.[4] Justices Alito and Kennedy concurred, securing the majority, but on the understanding that the opinion:

(1) [G]oes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”[5]

Other than Fraser and Morse, the Supreme Court has expanded very little on their ruling in Tinker.  Circuit Courts around the country have been forced to forge their own interpretations of the Supreme Court’s holdings, and, as a result, many circuits have come to different conclusions.  The Third Circuit recently ruled on student speech in B.H. ex rel Hawk v. Easton Area School District, and the Supreme Court denied a petition of certiorari by the school district in March of 2014.[6] Without guidance from the highest court in the land, it is likely that circuits will continue to disagree over what student speech is constitutionally protected. Therefore, the Supreme Court should revisit student speech and provide a more definite structure or balancing approach for lowers courts to follow.

  1. H. ex rel Hawk v. Eaton Area School District


  1. The Third Circuit’s Ruling

In 2010, two minors, B.H. and K.M., sued the school district, through their mothers, for suspending them and prohibiting them from attending the school’s formal because the girls refused to remove bracelets imprinted with the phrase “I ♥ Boobies! (KEEP A BREAST).”[7] The bracelets were products of the Keep-A-Breast foundation and were created to promote education about breast cancer and to encourage young women to speak openly and comfortably about real issues women face everyday.[8]  The two girls wore the bracelets in support of Breast Cancer Awareness Day, an event observed by the school.[9] School administrators, fearing the bracelets would cause disruption and potential inappropriate sexual contact amongst students, made an announcement over the school’s loudspeaker banning any bracelets containing the word “boobies.”[10]

The school district did not initially claim that the bracelets were actually disruptive under Tinker, but rather focused on Fraser’s restriction on lewd or offensive speech. For this reason, the Third Circuit chose to center its decision on an interpretation of Fraser rather than the other Supreme Court student speech cases.[11] According to the Third Circuit, Fraser, along with Morse, created three possible categories into which student speech could fall:

(1) [P]lainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that as a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.[12]

The court placed the case before them in the second category because “the bracelets…[were] not plainly lewd and because they comment[ed] on a social issue…”[13] It distinguished Fraser from Hawk by explaining that Fraser only applied to student speech that was “plainly lewd speech,” and, as such, was not of equal importance under the First Amendment in comparison with speech regarding matters of public concern.[14]

The ruling in Hawk provided a pragmatic balancing test for courts in the Third Circuit to apply to student speech cases in the future. However, many circuits still remain divided on issues of student speech. Days after the Third Circuit announced their opinion in Hawk, the District Court for the Northern District of Indiana, in J.A. v. Fort Wayne Community Schools, held that a school district did not violate students’ First Amendment rights by banning the very same “I ♥ Boobies! (KEEP A BREAST)” bracelets.[15] The district court followed what it interpreted as an unambiguous ruling in Fraser and deferred to the school’s interpretation of “lewd” language.[16] It is likely that without a “clear and unambiguous Supreme Court precedent supporting its interpretation,” the Third Circuit’s ruling in Hawk will continue to be resisted by lower courts.[17]

  1. Hawk as a Superior Approach

The court in Hawk relied on Justices Alito and Kennedy’s concurring opinion in Morse in making its ultimate determination.[18]          The concurrence adopted the ruling on the narrowest grounds, and, because Alito and Kennedy’s votes were essential in gaining a majority in Morse, the Third Circuit viewed their concurrence as binding.[19] Unfortunately, this approach of adopting the concurrence was not looked upon favorably by other circuits and even “strained existing precedent in that area.”[20] In the dissenting opinion in Hawk, Circuit Judge Hardiman stated that the majority misunderstood the Supreme Court’s “narrowest grounds” doctrine, which he argued should only apply when there is no true majority opinion.[21] Furthermore, circuits that choose to view Fraser as unambiguous are left with a clear test: If school administrators determine certain speech to be lewd and offensive, then the courts should ultimately defer to those determinations.[22]

Despite the shaky doctrinal grounds behind the Third Circuit’s decision in Hawk, the balancing approach provides a superior method for applying Fraser.[23] Resorting to the simple interpretation of Fraser does not satisfactorily follow the reasoning laid out by the Supreme Court in Tinker:

Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect…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.[24]

By deferring to the judgment of school officials without further inquiry into the underlying facts, student’s First Amendment rights will undoubtedly be disregarded. Such censorship could lead to a halt of the “robust exchange of ideas” that the Court believes is important for the training of this Nation’s future leaders.[25]

The narrower interpretation of Fraser promotes the censorship of any open discussion of sex, including sexual health and identity.[26] “Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots.”[27] By allowing schools to censor issues in any way related to sex, courts are permitting a huge portion of historically protected speech to become unprotected. “With no possibility of a contextual, fact-sensitive balancing of competing values, even speech that comments on vitally important social and political issues can be undermined by the most innocuous sexual double entendre or crude connotation.”[28]

The Hawk balancing approach greatly reduces the risks that exist in the narrow interpretation of Fraser. In order to create clarity and promote the protection of students’ First Amendment rights throughout the circuits, the Supreme Court should revisit the issue of student speech and provide further clarity on the permissible limitations to the fundamental right.

[1] R. George Wright, Post-Tinker, 10 Stan. J. Civ. Rts. & Civ. Liberties 1, 2 (2014).

[2] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[3] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 679 (1986).

[4] Morse v. Frederick, 551 U.S. 393 (2007).

[5] Id. at 422 (Alito, J., concurring) (citing Id. at 445 (Stephens, J., dissenting)).

[6] B.H. ex rel Hawk v. Eaton Area Sch. Dist., 725 F.3d 293, 293 (3rd Cir. 2013), cert. denied, 134 S. Ct. 1515 (2014).

[7] Id. at 300.

[8] David L. Hudson, Jr., Black Armbands, “Boobies” Bracelets and the Need to Protect Student Speech, 81 UMKC L. Rev. 595, 598 (2013).

[9] Hawk, 725 F.3d at 299.

[10] Id.

[11] Id. at 304.

[12] Id. at 298. The Third Circuit also noted that Tinker’s limitation on disruptive speech was still an effective mechanism against student speech.

[13] Id.

[14] Id. at 304.

[15] J.A. v. Fort Wayne Cmty. Sch., No. 1:12-CV-155 JVB, 2013 WL 4479229, at *1 (N.D. Ind. Aug. 20, 2013).

[16] Id. at *3-4.

[17] Harvard Law Review, First Amendment — Student Speech — Third Circuit Limits Censorship of ‘Ambiguously Lewd’ Speech — B. H. ex rel Hawk v. Easton Area School District, 725 F.3d 293 (3rd Cir. 2013)(en banc), 127 Harv. L. Rev. 1049, 1050 (2014)[hereinafter Third Circuit Limits Censorship].

[18] Hawk, 725 F.3d at 310.

[19] Id. at 310 (citing Marks v. United States, 430 U.S. 188, 193 (1977)).

[20] Third Circuit Limits Censorship, supra note 17, at 1058.

[21] Hawk, 735 F.3d at 325 (Hardiman, Circuit Judge, dissenting).

[22] Third Circuit Limits Censorship, supra note 17, at 1055.

[23] Id.

[24] Tinker, 393 U.S. at 739.

[25] See id.

[26] Third Circuit Limits Censorship, supra note 17, at 1055.

[27] Tinker, 393 U.S. at 740.

[28] Third Circuit Limits Censorship, supra note 17, at 1055.


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