Free speech in public schools misses another shot at the SCOTUS

By Cara L. Gallagher, weekend contributor

On Monday, the Supreme Court nixed a request from three teenagers to hear their case against Morgan Hill School District. The court’s denial to hear Dariano v. Morgan Hill ended an effort to overturn a lower court decision that supported the school’s right to prohibit the boys’ from wearing t-shirts displaying the American flag on Cinco de Mayo. This case reflects a consistency in the Court’s history of showing great deference to school administrators and districts since the landmark student speech case Tinker v. Des Moines (1969). Mary Beth Tinker and her brother won the right to wear anti-Vietnam armbands in school in that case. Tinker would be the high point for young people, the last celebrated Supreme Court victory for youth free speech advocacy. Since then, federal court decisions, or the lack of intervention by refusing to hear cases like Dariano, have resulted in significant restrictions on student speech in public schools. Forty-six years later, expressions of speech are more nuanced, savvier, and the topics just as controversial. If there was ever an audience of people hungry to see a contemporary free speech case at the Supreme Court, it’s high school students.

One came close to a Supreme Court appearance last year.

The Easton Area School District in Pennsylvania filed a writ of certiorari to the U.S. Supreme Court asking the Court to overturn the Third Circuit Court of Appeals’ decision in B.H. v. Easton Area School District.

Two middle school girls – Kayla Martinez and Brianna Hawk (B.H.) – sued Easton School District for infringing upon their 1st Amendment rights after both were suspended for wearing the “I Heart Boobies” bracelets despite prior warnings. The girls claimed they were raising awareness about breast cancer by supporting the Keep Breast foundation, the organization that sells the armbands. The school district claimed the armband’s message wasn’t appropriate for students to advertise. I’m guessing the word “boobies” is the content they were most uneasy with.

Bold move by two brash millennials fighting the good fight in the name of free speech, or an overzealous school administrator thwarting student speech?

There's a Taylor Swift song to match this moment, no doubt.
There’s a Taylor Swift song to match this moment, no doubt.

It’s hard not to look at the picture of the two adorable, cheeky “activists” and not agree with the latter rather than the former. The Supreme Court did not grant cert in this case either, allowing the lower Court ruling to stand. Similar to Tinker, there is the awareness component in the Easton case that the 1st, and schools with a healthy civic education program, would seemingly embrace. There’s something inherently incongruent when schools, often called the incubators of democracy, teach the very rights and liberties they later discipline.

But if we change the content of the speech, does your opinion change?

One case that actually made it to the Supreme Court called Morse v. Frederick challenges the answer to that question. You might know it better as the “Bong hits for Jesus” case from 2007 in which Joseph Frederick, a high school student, sued his school for violating his free speech rights.


Frederick was suspended for displaying a banner* with the aforementioned quote at a school-sponsored event in Juneau, Alaska. Frederick lost in the SCOTUS in a 5-4 decision that ultimately affirmed schools’ and administrators’ power to ban student speech that supports illegal activity (like drugs or drug paraphernalia) and “disrupts the learning environment.” The decision was an obvious victory for administrators, deans, and teachers, but dealt a serious blow to students and their free speech rights.

Prior to Morse was a similar school speech – Bethel v. Fraser (1986) – in which Matthew Fraser delivered the following speech to an audience of 9th-12th graders stumping for a friend who was running for a class election:

“I know a man who is firm – he’s firm in his pants, he’s firm in his shirt, his character is firm – but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts – he drives hard, pushing and pushing until finally – he succeeds. Jeff is a man who will go to the very end – even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he’ll never come between us and the best our school can be. He is firm enough to give it everything.”

Fraser lost in the Supreme Court. The Justices found his use of sexually vulgar language inappropriate where children are held in a captive audience.

Having a background in teaching myself, it’s easy to understand the priority schools have to preserve a safe and productive learning environs for minors. Plenty of case-law supports the role adults in schools play via in loco parentis giving them great authority to restrain behaviors – sometimes, like in the Dariano case, preemptively – they believe jeopardize the environment. But, as arbiters of democracy fanning the flames of active participation in my students’ quest to flex their rights, it’s hard not to sympathize with the kids.

When I teach Morse or Fraser, I always ask the students if this was the case they wanted the SCOTUS to answer a critical 1st Amendment question regarding their speech rights in school? A majority of students vocalize a fervent desire to see student speech advocated for and an equally, if not stronger, frustration over the content of the speech in the cases that have made it to the Supreme Court. Kids don’t like the idea of other kids wasting 1st Amendment cases on words like “bong hits” or even sexual innuendo. They know how hard it is to be taken seriously and deride the actions and speech of one “immature” outlier as misrepresentative of who they are. They take the majority of school speech cases, with the exception of Tinker v. Des Moines, and frustratingly ask “Why’d it have to be these cases the Supreme Court decided?!” They’re still waiting (hoping) for the one that will curb further encroachment into their individual freedoms and rights.

*Go see the actual banner he carried at the Newseum in Washington, D.C.  It’s huge; maybe 8-10 feet long.  You have to look above the 1st Amendment exhibit walls, almost up on the ceiling, to find it.  I’m guessing that decision was purposeful so 3rd-grade field trip chaperones don’t have to worry about explaining the message to their students.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

10 thoughts on “Free speech in public schools misses another shot at the SCOTUS”

  1. At first glance, the school’s decision in the Dariano case seems absurd and that it should be violative of 1st amendment free speech. After reading the link in the post regarding the case, and after some consideration, it becomes clear there is more to the story. I still don’t like the result, but if my child was in that school I am not sure I would disagree with ban. It seems clear that the school had the safety of the students in mind. Obviously, the root of the problem in that school is shaky relations between Mexican-Americans and another block of students (American-Americans?). I don’t envy the school officials calling the shots at this school.

    The post piqued my interest in 1st amendment student speech jurisprudence, which I am most un-informed about. I need to read some of the opinions cited. Great post!

  2. The SCOTUS has been negligent and derelict for 226 years. In what SCOTUS realm is the injustice and bias of affirmative action constitutional? Justice Ginsburg committed outright treason, recently, by disparaging the founding documents in a foreign country. Obama care is unconstitutional compulsion of commerce and was defined by Congress contemporarily as NOT a tax. We will all experience a huge guffaw when the corrupt, political, ideological and subjective SCOTUS awards Obama care again as it purports to not be able to read the clear text that requires state exchanges and precludes federal exchanges.

    Get some popcorn and get ready for the hilarious “SCOTUS SHOW” coming to a newscast near you in June.

    P.S. Let’s not even start on the absence of the SCOTUS during Lincoln’s “reign of terror” when Lincoln “terrored up” the Preamble, Constitution and Bill of Rights. Yep, old “Honest Abe,” religious zealot of Biblical proportions in the land of “separation of church and state” and no theocracy. The poor man was so “overcome” with a sudden bout of morality, he had to destroy the nation and kill a million people. And the SCOTUS said, “hells yeah!”

  3. I’m not really a big fan of “students rights”. Part of me wants to say shut up go to school and learn. On the other hand, when a kid points at another kid and is deemed as bad as Isis and is sent home, well that is just asinine. But, since the govt. has a monopoly on education, it is what it is.

  4. I believe that schools should have more freedom to ban student speech that seemingly promotes drug use or is vulgar or even mildly suggestive (“boobies”). But the Dariano case was clearly political – the school favored one student group’s political expression over that of another. The school said one group could wear Hispanic pride clothing, but the opposing group could not wear American flag t-shirts, because it could result in violence. So why not ban BOTH the Mexican flag tees and the American flag tees? At least treat the students equally. If the school had allowed the wearing of American flags, but banned Mexican flags, you know darned well that the Court would have accepted the case. SCOTUS cowed to political correctness on this one.

  5. Cara, You got sandwiched between dueling gay posts. Not to be confused w/ dueling banjos. Hang tough.

  6. The fact that the courts heard this at all proves that “schools” are government schools in every sense of the word…. A private school has no obligation to allow “free speech” only government schools do….

  7. I agree with all that Nick said. I would add that the Tinker case has some educational lessons here for the students who wish to protest. They should follow the black armband thing and not insert offensive language. Mary Beth Tinker was one of the plaintiffs in the Tinker case and she and her husband went about the nation last year on The Tinker Tour to promote their message about student advocacy. The opinion in Tinker is a nice read.

  8. Superb post. We seem to have a cross rip w/ SCOTUS and the education industry. has daily accounts of the fascism of schools from kindergarten to universities. PC, speech codes, zero tolerance, are all the rage by mindless, cowardly, educational bureaucrats. To have SCOTUS being deferential to that First Amendment hating industry is more than discouraging. And, maybe those tough and brave girls should try it again w/ titties instead of boobies. Wait maybe “rack” would pass muster. “I heart racks”, and I think most other men do as well. We want those racks to remain healthy and functional.

  9. Well, here is the money quote from above:

    They take the majority of school speech cases, with the exception of Tinker v. Des Moines, and frustratingly ask “Why’d it have to be these cases the Supreme Court decided?!”

    It’s bananas. But, I guess you gotta have bananas to morph into a banana republic.

    Squeeky Fromm
    Girl Reporter

  10. Students are in school to learn not to teach. Plenty of time in life to present their views on their favourite concerns. So much to learn in so little time

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