Law & Courts

Symposium Revisits Landmark Student-Speech Cases

By Mark Walsh — October 02, 2012 9 min read
This banner, displayed on a public sidewalk outside a high school in Juneau, Alaska, in 2002, was interpreted as a pro-drug message.
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Their names are synonymous with U.S. Supreme cases on student speech.

John and Mary Beth Tinker, who wore black armbands to protest the Vietnam War. Matthew Fraser, who made a suggestive speech to an assembly of his high school peers. Cathy Kuhlmeier, who helped produce school newspaper stories on teen pregnancy and divorce that were pulled before publication. And most recently, Joseph Frederick, who displayed a banner reading “Bong Hits 4 Jesus” outside his school.

While the cases bearing those names are studied and debated by students, educators, law professors, and jurists in classrooms and on the pages of textbooks and law treatises, there was something special about a symposium here at the University of Missouri-Kansas City late last month. Most of the original plaintiffs in those landmark student-speech cases were either here in person or appeared via video. So were some of the other leading participants, such as school administrators and the lawyers who argued the cases on either side.

“This is probably a once-in-a-lifetime event,” said Ellen Suni, the dean of the UMKC School of Law, which hosted the Sept. 20-21 conference. Daniel Weddle, a law professor at the school who organized the event, said, “As ordinary people, these litigants stood up to do extraordinary things.”

Armbands in Iowa

While there was plenty of discussion about the relevance to the speech controversies of today, an audience of dozens of high school students, their college counterparts, lawyers, educators, and others was most riveted by the personal stories of the original participants.

Mary Beth Tinker and her brother John display black armbands in March 1968. They were among the Des Moines, Iowa, students suspended from school in 1965 for wearing the bands to protest the Vietnam War. The armbands were originally plain black; the Tinkers added the peace symbols later.

“I was this little preacher’s kid who went rollerskating on the weekends,” said Mary Beth Tinker, who was 13 in 1965 when she was suspended from her Des Moines, Iowa, middle school for wearing a black armband to protest the war in Vietnam. “I wasn’t really a big rabble-rouser.”

But growing concern over the war motivated her and her brother John to join a dozen or more other Des Moines students in the silent protest.

“I was scared,” she said. So scared, in fact, that she removed her armband when confronted by a school administrator. “But I got suspended anyway.”

John Tinker, who was 15 and in high school at the time, recalled wearing a crisp white shirt and tie to school the day he wore a black armband. The principal was actually supportive, though he sent the young man home under an ad hoc policy against the wearing of armbands that Des Moines school district administrators had adopted.

“My principal was respectful of me,” Mr. Tinker said.

Seven students were suspended, but it was the Tinkers and a third student, Christopher Eckhardt, who took a legal challenge to the prohibition all the way to the Supreme Court. Mr. Eckhardt’s mother, Margaret, had been instrumental in launching the students’ protest. Mr. Eckhardt recalled that gym teachers at his high school required students to do calisthenics to a chant of “Beat the Vietcong!” and that members of the football team threatened him with bodily harm for wearing the armband.

“In 1965, that was a time in Iowa when if you questioned the war, you were not patriotic,” he said.

High-Water Mark

High Court Milestones: Students and Free Speech

The U.S. Supreme Court decided these four major cases involving student speech in precollegiate schools.

Tinker v. Des Moines Independent Community School District (1969)

The court voted 7-2 to strike down the Iowa school district’s policy of prohibiting students from wearing black armbands to school to protest the Vietnam War. The students had a First Amendment right to wear the armbands so long as school was not substantially disrupted, the court held. Justice Abe Fortas’ opinion included the famous language that public school students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

Bethel School District No. 403 v. Fraser (1986)

The justices ruled 7-2 that a Washington state school district did not violate the First Amendment rights of a high school student when it disciplined him for giving a speech that was full of sexual innuendo at a student assembly. Chief Justice Warren E. Burger’s opinion for five members of the majority said that for school officials to permit students to engage in “vulgar and lewd speech” such as that involved in the case “would undermine the school’s basic educational mission.” And in language that has been interpreted as trimming back the Tinker decision, the chief justice said that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”

Hazelwood School District v. Kuhlmeier (1988)

In a 5-3 decision, the court ruled in favor of a Missouri principal who read a high school newspaper in advance of publication and ordered the deletion of articles on divorce and teenage pregnancy. Justice Byron R. White said for the majority that school officials do not violate the First Amendment when they exercise editorial control over the content of student speech in school-sponsored expressive activities as long as their actions are related to legitimate pedagogical concerns.

Morse v. Frederick (2007)

The justices ruled that a student could be punished for displaying a banner interpreted as a pro-drug message (“Bong Hits 4 Jesus”) at a school-supervised event. While the judgment was 6-3, Chief Justice John G. Roberts Jr. wrote for a five-justice majority that “the special characteristics of the school environment, and the governmental interest in stopping student drug abuse … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.”

SOURCE: Education Week

In the 1969 ruling in Tinker v. Des Moines Independent Community School District, the Supreme Court ruled 7-2 that the students who wore the armbands in school were engaged in symbolic speech that was protected by the First Amendment as long as they did not cause substantial disruption at school.

The Tinker decision is considered the constitutional high-water mark for students’ First Amendment right to freedom of speech, with later Supreme Court decisions chipping away at such protections.

The high court has not decided a student-speech case since 2007, when it ruled in Morse v. Frederick that Mr. Frederick could be punished for his “Bong Hits” banner in order to protect students from messages that could be interpreted as promoting illegal drug use.

In the lower courts in recent years, numerous cases have involved student speech with undertones of violence, which in the post-Columbine era has generally led to rulings in favor of restricting such speech. Meanwhile, cases over Internet speech, such as incidents in which students criticized or mocked their administrators online, have produced mixed rulings, although with some major victories for students in the past year or so.

“There is still a healthy swath of protection for lots of student speech,” David L. Hudson Jr., a scholar at the First Amendment Center in Nashville, Tenn., said here.

But Douglas K. Mertz, a Juneau, Alaska, lawyer who represented Mr. Frederick in the “Bong Hits” case at the Supreme Court, said that “the future of student free speech is very uncertain. It’s walking along a knife’s edge and could fall off very easily.”

Although the Kansas City conference had something of a pro-student-speech bent, organizers made sure that the side of school authorities was represented, too. One participant was Kenneth W. Starr, the former U.S. solicitor general and independent counsel in the Whitewater case during the Clinton administration. He argued on behalf of Deborah Morse, the principal of Juneau-Douglas High School, in the “Bong Hits” case in the Supreme Court in 2007.

Mr. Starr said in a video interview conducted for the conference that he had been concerned that, under a lower-court ruling in the case, Ms. Morse faced personal liability for violating Mr. Frederick’s constitutional rights.

“There was no small amount of outrage that a principal in that position could face the prospect of punitive damages,” said Mr. Starr, who is now the president of Baylor University in Waco, Texas. The Supreme Court’s decision removed that threat of liability.

Hard Line

A more vivid example of the school administrator’s perspective came from Robert E. (Gene) Reynolds, who was the principal at Hazelwood East High School, near St. Louis, in 1983 when he made the decision to pull two pages from the student newspaper, the Spectrum.

Mr. Reynolds recalled here that he had just become a school administrator when the 1969 Tinker decision shook the landscape of school authority and students’ rights. Before Tinker, he said, many principals ran their schools with such “rules” as “the principal is always right” and “my way or the highway.”

“Students really didn’t have rights,” Mr. Reynolds said.

Mr. Reynolds shared the stage during a sometimes-tense session with Cathy Kuhlmeier Frey, who as Cathy Kuhlmeier was the layout editor of the Spectrum in 1983 and the lead plaintiff among the students who challenged the principal’s decision to withhold the pregnancy and divorce articles. The Supreme Court ruled against the students in its 1988 decision in Hazelwood School District v. Kuhlmeier.

“I was so angry because we had worked so hard” on those articles, Ms. Frey said, as she and Mr.Reynolds sparred over the details of the controversy.

“I stood up for what I believed in,” added Ms. Frey, who was a junior at the time. “That has molded me into someone who is not afraid to speak up.”

A ‘Confused Boy’?

The 1986 decision in Bethel School District No. 403 v. Fraser tends to get less attention than the other three, although it was the first to curtail the rights set forth in Tinker.

Matthew Fraser, the plaintiff in that case, who appeared at the conference in a video recording, described how he came up with his lewd nominating speech for a classmate, which was delivered before 500 or so students in an assembly at his high school. The speech played on the sexual-innuendo potential of words such as “firm” and “climax.”

Mr. Fraser, who was a senior at the time of the speech, noted that he paused “at the right places to give the innuendo the right emphasis.”

“The audience, I thought, would be entertained,” he added. “It seemed like the kind of humor that students would enjoy.”

School officials were not amused by the hooting and hollering that the speech encouraged. Mr. Fraser was suspended for three days and was removed from the roster of graduation speakers, though he got to deliver his graduation speech—an uncontroversial one—by court injunction. (Meanwhile, Mr. Fraser’s friend won his election.)

The Supreme Court ruled 7-2 against Mr. Fraser, with Chief Justice Warren E. Burger referring to him as a “confused boy,” while Justice John Paul Stevens wrote a dissent that called him “an outstanding young man with a fine academic record.”

Jeff Haley, a lawyer in Seattle, who argued Mr. Fraser’s case, said at the conference that his speech, however risqué, was an election nominating address and, as such, should have been given the same high degree of protection the First Amendment accords core political speech.

Mr. Fraser stressed that point.

“It’s an ugly lesson that is taught to kids” about their speech rights in school, he said. “The question is, do we want students in schools to be able to debate things? … If election assemblies are not the one place where kids can speak and push the boundaries a little bit, then what lesson does that teach?”

The only speech-case plaintiff not heard from at the conference was Joseph Frederick, of the “Bong Hits” case, who is a graduate student in China, where he also teaches English. He has said that his “Bong Hits 4 Jesus” banner was merely a nonsense phrase designed to provoke a reaction and perhaps draw some embarrassing attention to his school.

Mr. Mertz, his lawyer, said at the conference, “I think the U.S. Supreme Court had an agenda … to view this case as a drug case.”

Emily Gold Waldman, an associate professor at Pace Law School in White Plains, N.Y., observed here that if Mr. Frederick had created a banner about “what was wrong at his school” or in favor of legalizing marijuana, “he would have been in much better shape.”

“The silliness of the banner seemed to hurt him even more,” she said.

Moving On

The former plaintiffs expressed few regrets about their speech controversies and, even as they have gone about their lives, some have carved out an advocacy role.

Mary Beth Tinker is a pediatric nurse who now lives in Washington, where she also is an advocate for children’s rights. John Tinker has worked on a shrimp boat and as a database engineer, but has always remained a peace activist, he said. More than 40 years after the Tinker decision, the siblings continue to speak to school assemblies and other gatherings about their case.

Christopher Eckhardt also speaks out about student speech, as well as gay rights, and prison reform. Cathy Kuhlmeier Frey, meanwhile, moved on to college as the case about her student newspaper wound its way to the Supreme Court.

“I ended up studying journalism, but by the time this was resolved, it left such a bitter taste in my mouth that I didn’t want anything to do with” the profession, she said. She has worked in retail management and raised two children with disabilities. (Mr. Reynolds, her principal, is now involved with an alternative education organization and a school accreditation group.)

Like Joseph Frederick, Matthew Fraser became a teacher. He teaches at a private school in Oakland, Calif., and is the executive director of Education Unlimited, which runs summer debate camps. Both Mr. Frederick and Mr. Tinker have appeared at his camps, he said.

A version of this article appeared in the October 03, 2012 edition of Education Week as Landmark Speech Lawsuits Come Alive at Symposium


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