The First Amendment and the Government as K-12 Educator

Since First Amendment controversies involving the government as K-12 educator often come up on the blog, I thought I’d summarize the Supreme Court’s precedents on the subject:

1. The government acting as K-12 educator (i.e., kindergarten through 12th grade) may restrict speech if it

a. “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” Tinker v. Des Moines Independent Community School Dist. (1969), or

b. “inva[des] … the rights of others,” id. (query what rights these are — the Court has never discussed this, and the majority and Justice Alito’s concurrence in Morse v. Frederick (2007) described Tinker by reciting only the disruption prong), or

c. is “vulgar and offensive” because of its particular wording and not because of its viewpoint, Bethel School Dist. No. 403 v. Fraser (1986); see also Morse (“[Fraser] should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.”), or

d. “would [be] interpret[ed by a reasonable observer] as advocating illegal drug use and … can[not] 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,” Morse (Alito, J., concurring).

2. Under Tinker, mere fear of interference isn’t enough; there has to be some specific “reason to anticipate” interference. This is especially so if the restriction seems aimed at a particular viewpoint, though the Court has left open the possibility that even viewpoint-based restrictions would be allowed if certain viewpoints were particularly disruptive. Tinker.

3. Lower courts are split about the degree to which this justifies restricting off-campus speech on the grounds that it may cause disruption on-campus.

4. Fraser seems to generally support the school’s power to restrict vulgar speech by its students (consider the statement “[T]he First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket”). But one could also interpret it as being limited to the speech of students who are participating in school-endorsed events (such as students speaking to school assemblies); Justice Alito’s Morse concurrence could be read as taking the latter view when it describes Fraser as covering “speech that is delivered in a lewd or vulgar manner as part of a middle school program.”

5. The government has extremely broad latitude over speech during class, speech on exams, and speech in school-run activities (such as high school newspapers).

6. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), upheld a principal’s exclusion of certain articles from a student-written school newspaper; but this generally reflects broad government-as-speaker law, and not special rules related to the government as K-12 educator. The government could, for instance, equally restrict what is published in government agency newsletters, though such newsletters’ readers are employees and patrons, not students.