The Evolution of Freedom of Speech in Schools/Universities

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Institution

The Evolution of Freedom of Speech in Schools/Universities

Over the years, our country has drastically changed in a multitude of areas. This includes the progress our country has made between equal rights among men and women, all different races, and just the overall diversity of our country as a whole. The one aspect that has remained constant since our country was founded is freedom of speech. Since our founding fathers formed the colonies and wrote the constitution, it has been one of the foundations this country was built on, that all people would be able to speak openly. In our constitution, it states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Of course, that wasn’t the case, and it took hundreds of years before all races and genders were considered on a level playing field in this respect. Additionally, there will always be a certain level of restriction on some speech, like legitimate threats towards our President, but like everything else in our country, freedom of speech has progressed and changed. And this isn’t going to stop. As our country continues to develop technologically, and people have the ability to post anything they want from their phones, it’s going to continue to make the freedom of speech conversation more and more complicated. This is especially true when discussing freedom of speech for students who are attending universities and public schools. The changes in the way students are allowed to speak in schools and universities have changed as much as any other aspect in our country over the years. This paper examines a variety of cases from the past and compares them to situations from the last 15 years to see what type of progress/changes have occurred within our freedom of speech laws for students. Some of the court cases I will use include: Tinker v. Des Moines (1969), Island Trees School District v. Pico (1982), McCauley v. University of the Virgin Islands, and Smith v. Tarrant County College District.

In order to fully grasp the changes, it is important first to examine some of the original cases involving freedom of speech laws in schools and universities. The first landmark case that is necessary to understand is Tinker v. Des Moines (1969). This was one of the first real freedom of speech issues the United States had encountered in schools. It featured a select group of students who took offence to the United States involvement in the Vietnam War. They wanted to be able to voice those frustrations in some fashion, so they decided to put black armbands on their sleeves and wear them to school. The school immediately fought back against this action claiming that armbands would serve as a distraction to other students, so they created a policy that restricted all students from wearing armbands to school, and if they did, it would result in a suspension. Two students, John and Mary Beth Tinker, decided to wear armbands to school anyways and the school suspended them. This case was brought to courts, where the defence argued that the schools were allowing other forms of controversial speech, including campaign speech, so two students wearing a harmless armband shouldn’t be an issue. The court agreed with this assessment, ruling 7-2 in favour of Tinker being able to wear armbands to school. According to the Bill of Rights Institute, the reasoning behind the court’s decision included:

The Court found that the school had not demonstrated that the armbands caused “a material and substantial interference with schoolwork or discipline” and, rather, had acted merely to avoid the ‘discomfort and unpleasantness that always accompany an unpopular viewpoint.’ The Court noted that the school district had not banned all political symbols, but had instead ‘singled out’ the armbands for prohibition. In other words, the limiting of speech was not content-neutral – a test the Supreme Court uses when deciding some First Amendment cases.

Additionally, a very important development in students ability to garner freedom of speech protection in schools came from this case. The lawyer for the defense, Justice Fortas wrote: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate…” And with the court’s decision to rule in favor of Tinker and against the school, it made this quote even more powerful because now there was precedent of students being able to speak openly in schools.

The next case that is important to understand is Island Trees School District v. Pico (1982). This case covers a slightly different area of freedom of speech and censorship, but it is equally as important as Tinker v. Des Moines. In this case, the school received a complaint from a group of parents concerning the content of several books the school had in their library. Upon learning of these complaints, the school had planned to remove the books from the library altogether. This prompted a group of students to fight this ruling, led by senior Steven Pico. Pico took the school to court on this issue claiming that “passages in the books offended [the group’s] social, political, and moral tastes and not because the books, taken as a whole, were lacking in educational value.” The court ruled in favor of the students, claiming that the students had the right to read whatever they wanted as a direct link to the first amendment. A public school is not allowed to restrict content that they don’t agree with according to this court’s ruling.

The Tiker v. Des Moines was, without doubt, the beginning of a new era of free speech for students. It was a moment for the advocates of the first amendment. However, what this ruling meant was significantly complicated by the coming of the internet with advocates of the freedom of speech now worried that these student rights will be under attack again. There have been cases of schools punishing students for comments they have made online, especially on their social media even when they have done this outside school premises. While certain administrations go after cyberbullies, some take action against students that make comments that the school does not support. Tinker herself has taken the imitative of touring schools to resuscitate students rights to speech nearly over have a decade since her case. Tinker understands that with the wonderful capacity to push democracy even further provided by technology, there are emerging threats to students’ rights to express themselves. Tinker believes that allowing the young minds the freedom of expression. Then the society will benefit from the energy, creativity and new ideas. Hindering, in this manner, is a huge loss and also infringes on their rights.

There have been many cases of schools punishing students for apparently friendly online activities. A good example is the account of a student in Minnesota who made a post on her Facebook page, citing how a hall monitor was mean to her. The school administration, then in the presence of a sheriff’s deputy, was forced to disclose her password. This drew the attention of the human rights group ACLU who agreed to support the boy’s trial. The school then called for an outside court settlement.

In some cases, student banter in the digital world that would not have drawn, any attention in the pre-digital era has attracted swift punishment. There was a case where a high school president In Kansas was suspended for making fun on the school’s football team on tweeter. Another case on Oregon saw a school suspend 20 of its students for making comments on twitter that one of the school’s female teachers flirted with students. The state of Kansas also had another incident where a student was suspended for making a post that, according to the school made the principal uncomfortable. ACLU through one of its lawyers made a statement saying that it was not acceptable for advocates of the freedom of speech to sit back and watch as the freedoms of speech that was fought for so hard to become eroded in the digital age. School officials eavesdropping on the communication of students at their own private gatherings with their peers or going through their private videos and photo albums. Students conversations being digital does not allow for school administrations to go through student content.

It is apparent that students can be rude and inconsiderate on online platforms. A 10th grade English teacher from North Carolina by the name Chip Douglas resigned from his post after students made a fake twitter account in his name portraying him as a hyper-sexualized drug addict. Although students go too far, a law enacted by North Carolina legislature prohibiting students from making comments on the internet with the intention of intimidating school employees has gone a little too far according to advocates of the first amendment. The law that was enacted on December of 2012 with the intension of protecting school employees from intimidation creates certain issues for the First Amendment. One is that schools have the power to punish whatever kind of speech as long as they can cite “intimidation.” The other thing is that schools can take action against students for comments made after school hours, in the confidentiality of their homes.

In McCauley v. University of the Virgin Islands, the freedom of speech won after the United States Court of Appeal declared unconstitutional several speech policies that were put in place by the University of the Virgin Islands, Pennsylvania, Delaware and New Jersey. The case was filed by Stephen McCauley now a former student of UVI in the U.S. District Court of the United States Virgin Islands in May 2009, where he complained that university’s use of its “Hazing Harassment” policy against him was in violation of the rights he was guaranteed by the First Amendment. The provisions of the policy were such that any act that affected the mental health or which scares, belittles or disgraces another individual was prohibited. McCauley also cited the violation of the First Amendment rights of every student at UVI by having this policy alongside other speech codes including laws barring the use of “offensive” and “unauthorized” signs and behavior resulting in “emotional distress.”

In August of 2009, the U.S. District Court of the United States Virgin Islands termed the UVI’s “Hazing Harassment” policy invalid and not in line with the provisions of the constitution. However, the court made a mistake by maintaining two other inconsistent policies. To augment this misjudgment, the court incorrectly analyzed collegiate speech restrictions that applied to grade and high school children. McCauley appealed the decision by September of the same year and was joined by the Foundation for Individual Rights in Education in December as a friend of the court asking the court to refer to its decision in DeJohn v. Temple University to reverse the ruling that was made by the lower court.

The court ruled that certain regulations that were enacted to prohibit offensive or unsanctioned signs and conduct resulting in emotional distress were in violation of provisions of the constitution. The ruling also upheld the decision made by the Federal District Court that a policy that prohibited belittling or degrading or causing “psychological harm” was not valid.

The ruling indicated that speech codes that were not consistent with the constitution would not survive judicial scrutiny in courts. The Third circuit decision protected for yet again the many years of legal practice striking down policies that violate the rights of students from public universities to enjoy the protection they are guaranteed in the First Amendment. This statement speaks to institutions that still maintain speech codes with the message that they are violating the law.

The court expounded its decision by suggesting that desire to protect the listener should not be used as a basis for gagging university students. The ruling found the University of Virgin islands policy for censoring offensive and unapproved symbols to be unconstitutionally overbroad.

According to Frank LoMonte, director at the Student Press Law Center, it is not possible to consider speech made on personal time in the same manner as in-class speech, and trying to do that is actually dangerous. Most of the time, schools sensor and intimidate whistleblowers who call out certain conditions on the school that are not right in school time. LoMonte continues to state that students should be able to enjoy some safe space where they can call out certain aspects of the school such as overcrowding, poor hygiene and poor security without the need to hold back out of fear of facing disciplinary action.

In Smith v. Tarrant County College District, Clayton Smith and John Schwertz Jr.were students at Tarrant College who filed a case against their school claiming that the school’s speech policies were unconstitutional both in the application and facially. The two students were members of a movement that was known as “Students for Concealed Carry on Campus” (SCCC) a group that had a national following and was formed in reaction to the Virginia shooting and called for schools to implement policies that would allow students to carry concealed weapons on campus. In 2009, Smith made an attempt to organize a protest on campus wearing t-shirts, handing out flyers and wearing empty holsters as a symbol of the fact that they had no form of defense against violence. Smith email the administrator notifying them of their intentions but was denied the authorization to go forward with the protest and so it was cancelled. A few months later in October of the same year, SCCC announced a national protest that planned to carry “empty holsters” around campus. This time, Smith informed the Chancellor of their decision to take part in the national protest. They also made an inquiry as to whether the policies of the school had changed since their first attempt. The Chancellor responded by citing the fact that the college that had certain requirements which convinced Smith and Schwertz that the policies could not allow them to participate in the national protest. Their next point of action led to the Smith v. Tarrant County College District case.

Tarrant County College and its chancellor filed a motion to dismiss Smith’ and Schwertz’s claiming that the plaintiffs did not have ground to follow up on this claim because they never took the step to apply to use the free speech zone. Furthermore the college had abandoned the free speech zone and maintained only a part of the policy that prohibited students from engaging in discourse activities supported by external organizations. Smith and Schwertz amended their complain in retaliation stating that the new policies still infringed on their freedoms guaranteed by the First Amendment. The District Court, Northern Texas, Fort Worth, granted Smith and Schwertz appeal for declaratory relief in-part and denied in part. The court upheld their rights to carry around the empty holsters as the First Amendment protects them. The court also invalidated the organization policies that barred students from speech activities supported by external groups because the policies were overly broad and unconstitutional.

Student speech that often defies the school leadership has been instrumental in ensuring transparency. There was the case where students contributing to an Ohio high school newspaper published a story after going through public records and discovering what high schools reported as a purported assault by a student was in deed alleged rape. There was also a story that students from Staten Island High School shared concerning how answers to the Department of Education standardized tests were out online before the test was given out. In the Tinker case, the Supreme Court made it categorically clear that schools should not curtail the expression of students in an attempt to cover up certain issues and avoid controversy. The Court said that schools could only justify a prohibition or the enactment of speech codes by removing doubt that they are not meant as tools to avoid controversy and squash unpopular opinion.

Students want to express themselves through creative and peaceful methods. The young minds, according to Tinker, are using all the tools availed to them to make a positive mark. As the years go by, generations are becoming more liberal and vocal and more exposed to things outside the basic norms. In the case of Board of Education, Island Trees Union Free School District No. 26 v. Pico, the board of the school called for the removal of 11 books from the school library saying that they were not suitable for children and the action was necessary to protect children from moral damage. The school superintendent raised concerns contrary to this decision, which led to the board to create a committee to review the books and generate a report on their suitability. The committee found that 5 of the 11 books could be kept in the library, but the board overruled their recommendation. Steven Rico was at the forefront in seeking injunctive and declaratory relief as they complained of the violation of their First Amendment rights by the actions of the board. A federal district court did not support their motion and instead approved the board their motion for summary judgment. On March of 1982, the case was taken before the Supreme Court which overturned the ruling of the federal district court citing the fact that students had the right to free choice and Discovery of new information because learners retain a section of the First Amendment rights.

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