The Education Law & Policy Review’s second volume, published in fall 2015 and part of the Education Law Consortium at the University of Georgia, was devoted to the issue of free speech in schools.
The issue was dedicated to and inspired by Mary Beth Tinker and the 1969 Supreme Court decision stemming from protest by her and her brother John at school, which established the Tinker standard and ensured that students maintained their constitutional rights past the schoolhouse gates.
Former Student Press Law Center staff attorney Mike Hiestand recounted the 2014 Tinker Tour, a special project of the SPLC where Tinker and Hiestand traveled through 41 states and covered almost 25,000 miles. The two spoke to more than 100 groups, recounting Tinker’s experience fighting censorship and engaging with students, a large majority of whom were young women. Tinker is traveling again in the 2015-16 school year.
But, in his article, Hiestand also pointed out more recent court decisions — most notably the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier — that have chipped away at those rights, allowing censorship when “related to legitimate pedagogical concerns.”
“The Court gave some examples in its decision of what might fit within the standard it had created. Unfortunately, rather than clarify such vague language, the examples only made matters worse. Henceforth the Court declared, school officials could censor material that the Officials themselves deemed: ‘ungrammatical,’ ‘poorly written,’ ‘inadequately researched,’ ‘biased or prejudiced,’ ‘vulgar or profane’ or ‘unsuitable for immature audiences.’ The Court said that school officials could also censor speech that would associate the school with ‘any position other than neutrality on matters of political controversy.’ Finally, there is my personal favorite: Otherwise lawful student speech could now be censored, the United States Supreme Court said where school officials felt it promoted ‘conduct otherwise inconsistent with the ‘shared values of a civilized social order’
It is the sort of rule we would probably expect to see in North Korean high schools. But today it is also the free speech guidepost for public high schools in North Carolina and North Dakota.”
(North Dakota approved an “anti-Hazelwood” law in April that ensures the free-speech rights of student journalists at public schools and colleges and reverts back to the Tinker standard.)
In a separate article, SPLC Executive Director Frank LoMonte noted the lack of protection the Tinker standard affords off-campus speech, including on social media.
The article argues that the Tinker level of control over students’ speech is excessive when the speech is not forced on a captive audience of in-school viewers, and that allowing school administrators to punish “substantially disruptive” off-campus speech could be abused, especially because speech on social media is replete with slang, irony and inside jokes that may not translate for the ears of adult disciplinarians. LoMonte wrote:
“When faced with an edgy new form of entertainment popular with young people, adults did what they have always done: They panicked. Reports of the heart wrenching deaths of students who took their own lives after being cruelly hounded via text-messages and social-media posts provoked a wave of questionably constitutional legislation expanding schools’ disciplinary authority into cyberspace. New Jersey enacted a statute, hailed as a ‘model’ for the nation, that defines ‘bullying’ an act carrying punishment up to and including expulsion from school – as any gesture, act or communication that is based on a student’s ‘distinguishing characteristic’ and that causes a student severe emotional harm, regardless of whether any conduct takes place on campus or whether there is discernible impact on the school. North Carolina upped the ante by enacting a statute that criminalizes online speech ‘with an intent to intimidate or torment’ a school employee with penalties of up to a year in jail – but only if the speaker is a student.”
Hiestand called on teachers to not be afraid of new technology, but embrace a sentiment expressed in the Tinker decision, that school is a place to learn and practice civic engagement, including the freedom of speech.
“It is time to try something different,” he wrote. “Instead of educators fearing and censoring young people and their new speech tools, it is time to look to our education system for leadership in helping young people use these new tools constructively and effectively. Young people grew up online. While school administrators may not understand or like it, the Internet is where young people now live much of their lives, and we do them a disservice by trying to change or deny their reality.”