CONSTITUTION DAY ACTIVITY 1
The First Amendment and Schools
This activity will allow students to learn about their rights to freedom of expression, and the expansion and contraction of student rights over the past four decades. The focus is on two cases: the landmark 1969 Supreme Court Tinker v. Des Moines Community School District decision and the 2007 Supreme Court decision in Morse v. Frederick.
Divide the class into four groups.
• Group 1 should perform a skit acting out the facts that led to the Tinker case.
• Group 2 should dramatize the high points of the Tinker v. Des Moines Supreme Court ruling.
• Group 3 should act out the facts behind Morse v. Frederick (Bong Hits 4 Jesus).
• Group 4 should lay out the main points in the Morse v. Frederick Supreme Court ruling.
Distribute the appropriate material to each group. Each group should be given sufficient time to read their material and assign roles.
The groups should perform their skits. When they are finished, the entire class should discuss the rulings. What is the "Tinker standard"? After Morse v. Frederick, is it still intact? Based on these two decisions, how would they describe what has happened to students' First Amendment rights over the years? Why do students in Massachusetts still have the broadest free expression rights in the country?
• Why Student Rights Differ Around the Country (see below)
• Chapter 14 of Rights Matter: the Story of the Bill of Rights (pp. 54-62)
• Mary Beth Tinker tells her story:
• John Tinker tells his story (audio).
• Learn about the expansion and contraction of student rights, and the role played by Jeffrey and Jonathan Pyle in getting Massachusetts students the broadest free speech rights in the country. Jeffrey Pyle tells his story:
• The Massachusetts Student Free Expression Act (see below)
• More on the Morse v. Frederick ruling (see below)
WHY STUDENT RIGHTS DIFFER AROUND THE COUNTRY
Does the US Supreme Court always have the last word on student rights?
Not necessarily. State constitutions might be more protective of student rights than the Bill of Rights as interpreted by the Supreme Court. And state legislatures can decide to pass laws giving students more rights than those laid down in a Supreme Court decision.
That is what happened in some states after the US Supreme Court handed down its 1988 decision in Hazelwood School District v. Kuhlmeier giving school authorities broad new power to censor "school-sponsored" student speech. Students around the country got organized to push for protection for their First Amendment rights.
In Massachusetts, three months after the Hazelwood ruling, more than 100 high school students came to the State House in Boston to testify in support of a bill that would shield them from the impact of the Supreme Court ruling. Students talked about how important it was to them to express themselves in their school newspapers without fear of censorship. They declared that if they are not taught to appreciate their rights when they are young, they might not value them when they are older. Some expressed the fear that Hazelwood would produce an apathetic student body.
Legislators were very impressed by student arguments, and Massachusetts became the first state to respond to the Hazelwood decision by passing an act protecting the rights of students to free expression. The "Massachusetts Student Free Expression Act" had been a "local option" since 1974 that is, towns could decide whether to adopt it. Seven months after the Hazelwood decision, the legislature made the Act mandatory on all school districts in the state. In Massachusetts, the Tinker standard prevails.
Legislatures in Colorado, Iowa, Kansas, and Arkansas passed similar legislation, and California had an act protecting student free expression that predated Hazelwood. Since the mid 1990s, as instances of censorship steadily rose around the country, momentum to pass legislation protecting student First Amendment rights stalled. Then the Columbine killings of April 1999 put student free expression rights on the back burner.
For more on anti-Hazelwood legislation:
The Massachusetts Student Free Expression Act
Chapter 71, section 82 of the Massachusetts General Laws
The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school. Freedom of expression shall include without limitation, the rights and responsibilities of students, collectively and individually, a) to express their views through speech and symbols, b) to write, publish and disseminate their views, c) to assemble peaceably on school property for the purpose of expressing their opinions. Any assembly planned by students during regularly scheduled school hours shall be held only at a time and place approved in advance by the school principal or his designee.
No expression made by students in the exercise of such rights shall be deemed to be an expression of school policy and no school officials shall be held responsible in any civil or criminal action for any expression made or published by the students.
Implementing Morse v. Frederick
Unless a court decides differently, it appears that the Massachusetts Student Free Expression Act will shield students in the Commonwealth of Massachusetts from the impact of Morse v. Frederick.
Outside Massachusetts, it won't be easy deciding when Morse v. Frederick applies and doesn't apply to student speech. The decision does not ban speech relating to illegal conduct generally. Nor does it ban all types of expression about drugs.
Justice Alito joined the majority opinion. But he also wrote a concurring opinion that narrows the type of speech that can be struck down under the ruling. He draws a line between restricting speech "that a reasonable observer would interpret as advocating illegal drug use" (which can be prohibited) and speech "that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use" (which is protected).
Imagine these two banners had been displayed by students:
DRUG STORES 4 JESUS
STORE DRUGS 4 JESUS
Under the ruling in Morse v. Frederick, the first would be protected as having a social or religious message. But the second would be struck down as advocating drug use.
Group 1: Students Protest the Vietnam War in an Iowa School
It is a snowy evening in December 1965. With over 500,000 troops in Vietnam, opposition to the war is growing. A group of student activists in Des Moines, Iowa decide to wear black armbands from December 16th until New Years Day to honor the dead on both sides.
The school principal catches wind of this plan. He announces that he will suspend any student wearing an armband. Most students then back out. But a sister and brother, 13-year-old Mary Beth Tinker and 15-year-old John Tinker, along with their friend, 16-year-old Christopher Eckhardt, decide to wear armbands to school anyway.
In the hallways, other students express curiosity about the armbands, and the Tinkers are eager to explain why they are wearing them. While some students disagree, there is no major hostility or disruption.
On her way to algebra class, Mary Beth is told by her teacher to head to the principal's office. She is told not to return to school until she removes her armband. John and Christopher are told the same thing. The three do not come back until after New Year's Day, when the protest is over. Although they take their armbands off upon their return, they continue to wear black clothing for the rest of the year.
The ACLU files a complaint on their behalf. The district court upholds the constitutionality of the school's actions. The Tinkers appeal. The U.S. Court of Appeals for the 8th Circuit evenly divides in its opinion, allowing the District Court's ruling to stand. Again, the Tinkers appeal, this time to the US Supreme Court.
The Supreme Court hears arguments in the case on November 12, 1968 and hands down its landmark ruling on February 24, 1969.
Group 2: Tinker v. Des Moines Independent Community School District (1969)
By a vote of 7-2, the Supreme Court upholds the students' First Amendment right to express their views by wearing the armbands to school.
Extracts from the US Supreme Court decision written by Justice Abe Fortas
"First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate...
"The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom - this kind of openness - that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society...
"In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. 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...
"A student's rights...do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinion, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfering with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others... ."
Extracts from Justice Black's dissent
" We cannot close our eyes to the fact that some of the country's greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens... Here a very small number of students have crisply and summarily refused to obey a school order designed to give pupils who want to learn the opportunity to do so... after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins."
Group 3: Bong Hits 4 Jesus
It is 2002. The Olympic torch is being passed across a Juneau, Alaska street in celebration of the Winter Olympic Games.
At a nearby high school, classes are dismissed so that students may attend the parade, which is not on school grounds but some argue is school-sanctioned.
Across the way is 18-year-old boy named Joseph Frederick, who stayed home from school this morning. Now he stands with a 14-foot banner, ready to awe the crowd. The banner reads "Bong Hits 4 Jesus."
Frederick says he saw the message on a snowboard and thought it would be a good test of free speech. "What the banner said was, 'Look here, I have the right to free speech and I'm asserting it.' I wasn't trying to say anything religious, anything about drugs," Frederick states.
School Principal Deborah Morse soon confiscates the banner and suspends Frederick for 10 days, charging that he was promoting drug use and displaying an offensive religious message. But this rebel-rouser won't go quietly.
Frederick contacts the American Civil Liberties Union (ACLU), which argues that while the message may be controversial, he certainly has a right to express it.
Defending the actions of the principal is Kenneth Starr, who was independent counsel during the Clinton-Monica Lewinsky investigation. "It was the wrong message, at the wrong time and in the wrong place," argues Starr. Principal Morse also has received support from school boards across the country as well as from the Bush Administration.
While a federal court dismisses the lawsuit, the 9th Circuit Court of Appeals rules that the suspension violates Frederick's First Amendment rights. The court also rules that the school principal could be held financially liable, since she should have known that she was violating Frederick's constitutional rights.
The ruling was appealed to the US Supreme Court. It was argued on March 19, 2007 and decided on June 25, 2007.
Group 4: Morse v. Frederick
The Supreme Court by 5-4 rules in favor of the school principal.
Extracts from the Supreme Court decision written by Chief Justice Roberts
"Our cases make clear that students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate'... At the same time, we have held that 'the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings'...and that the rights of students 'must be applied in light of the special characteristics of the school environment'... Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it...
"School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act or not to act on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use in violation of established school policy and that failing to act would send a powerful message to students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."
Extracts from Justice Thomas' concurring opinion
"In my view, the history of public education, as originally understood, does not protect student speech in public schools...in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order...
"Tinker effected a sea change in students' speech rights, extending them well beyond traditional bounds... I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so."
Extracts from Justice Stevens' dissent
"In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding indeed lauding a school's decision to punish Frederick for expressing a view with which it disagreed."