Amendment 1 — School Free Speech And Government As Educator

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First Amendment :

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.

Although the Supreme Court had previously held that students in public schools are entitled to some constitutional protection,[1](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn1amd1 " See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925). ") as are minors generally,[2](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn2amd1 " In re Gault, 387 U.S. 1 (1967). Children are subject to some restrictions that could not constitutionally be applied to adults. E.g., Ginsberg v. New York, 390 U.S. 629 (1968) (upholding state law restricting access to certain material deemed “harmful to minors,” although not obscene as to adults). ") it established the controlling standard for assessing First Amendment rights in the school environment in Tinker v. Des Moines Independent Community School District.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn3amd1 " 393 U.S. 503 (1969). ") In that case, the Court articulated a need to balance students’ First Amendment protections with the goals and needs of educators and the community.

In Tinker, high school principals had banned students from wearing black armbands as a symbol of protest against the United States’ actions in Vietnam.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn4amd1 " Id. at 504 ") Reversing the lower courts’ refusal to reinstate students who had been suspended for violating the ban, the Court set out a balancing test for applying the First Amendment in schools.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn5amd1 " Id. at 514. ") According to the Court, “ First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students,” and neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn6amd1 " Id. at 506. ") Notwithstanding these protections, the Court affirmed the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, “to prescribe and control conduct in the schools.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn7amd1 " Id. at 507. ") On balance, therefore, school authorities may restrict expression to prevent disruption of school activities or discipline,[8](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn8amd1 " Id. ") but such restrictions must be justified by “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn9amd1 " Id. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). See also Papish v. Bd. of Curators, 410 U.S. 667 (1973) (state university could not expel a student for using “indecent speech” in campus newspaper); but cf. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding two-day suspension, and withdrawal of privilege of speaking at graduation, for student who used sexual metaphor in speech given to high school assembly). ")

The Court reaffirmed Tinker in Healy v. James, finding no basis to believe that, “ First Amendment protections should apply with less force on college campuses than in the community at large.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn10amd1 " 408 U.S. 169 (1972). ") In Healy, the Court held that students’ rights of association, implicit in the First Amendment , were violated when a public college denied a student group official recognition as a campus organization.[11](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn11amd1 " Id. at 180. ") Denying recognition, the Court held, was impermissible if it was based on factors such as the student organization’s affiliation with the national Students for a Democratic Society, on disagreement with the organization’s philosophy, or on an unfounded fear of disruption.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn12amd1 " Id. at 187–90. ") The Court suggested that how courts strike the balance under the Tinker inquiry may differ depending on the students’ ages. The Court emphasized that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’” but also concluded that a college administration may require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law.” [13](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn13amd1 " Id. at 193. Because a First Amendment right was in issue, the college had the burden to justify rejecting a request for recognition rather than the requesters to justify affirmatively their right to be recognized. Id. at 184. See also Grayned v. City of Rockford, 408 U.S. 104 (1972) (upholding an anti-noise ordinance that forbade persons on grounds adjacent to a school to willfully make noise or to create any other diversion during school hours that “disturbs or tends to disturb” normal school activities). ")

In 1982, the Court faced a conflict between a school system’s obligation to inculcate community values in students and the free-speech rights of those students. In Board of Education v. Pico, the Court considered a case challenging a school board’s authority to remove certain books from high school and junior high school libraries.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn14amd1 " Bd. of Educ. v. Pico, 457 U.S. 853 (1982). ") The procedural posture of the case required the Court to assume that the books were removed because the school board disagreed with the books’ content for political reasons.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn15amd1 " Id. at 872. ") A plurality of the Court thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn16amd1 " Id. at 866–67. ") Although the plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political,” it reasoned that a school board was constitutionally prohibited from removing library books in order to deny access to political ideas with which the board disagreed.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn17amd1 " Id. at 862, 864–69, 870–72. Justices Thurgood Marshall and John Paul Stevens joined Justice William Brennan’s opinion fully. Justice Harry Blackmun believed “that certain forms of state discrimination between ideas are improper” and agreed that the government “may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.” Id. at 878–79 (Blackmun, J., concurring in part and concurring in the judgment). Justice Byron White provided the fifth vote for reversal, and he would have avoided “a dissertation” on the First Amendment issue. Id. at 883 (White, J., concurring in the judgment). Instead, he voted to reverse the trial court’s grant of summary judgment based on an unresolved factual issue going to the reasons for the school board’s removal. Id. ") The four dissenters argued that the Constitution did not prevent the school board from expressing community values in this way regardless of its motivation.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn18amd1 " Justice William Rehnquist wrote the principal dissent. Id. at 904 (Rehnquist, J., dissenting). See also id. at 885 (Burger, C.J., dissenting), 893 (Powell, J., dissenting), 921 (O’Connor, J., dissenting). ")

The Court struck a different balance between student freedom and educator authority in Hazelwood School District v. Kuhlmeier,[19](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn19amd1 " 484 U.S. 260 (1988). ") in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only “reasonably related to legitimate pedagogical concerns.” [20](https://www.law.cornell.edu/constitution-conan/amendment-1/school-free-speech-and-government-as-educator#fn20amd1 " Id. at 273. ") The Court distinguished the facts of K