Let the Students Speak! (eBook)

Bong Hits After the 1988 Hazelwood decision, the U.S. Supreme Court did not take another pure student free expression case for nearly twenty years. This meant that a trio of First Amendment student speech cases governed American jurisprudence for almost two decades--Tinker, Fraser, and Hazelwood. Hazelwood applied to school-sponsored student speech. Thus, a student play, many student newspapers (that weren't considered public forums), the school's mascot, or the content of the school's curriculum could be regulated by school officials if they had a legitimate educational, or pedagogical, reason. Fraser applied to student speech that was considered vulgar, lewd, or plainly offensive. There was disagreement among the lower courts on at least two aspects of Fraser. First, lawyers, school officials, and eventually judges disagreed as to whether Fraser applied to speech outside the school context or whether it applied only to vulgar and lewd student speech that occurred on school grounds--like Matthew Fraser's speech to the school assembly. The other question was over the reach of the 'plainly offensive prong' of Fraser. Some schools applied Fraser to any speech they didn't like. In 1997, Nicholas Boroff, a student at Van Wert High School in Ohio, wore a T-shirt picturing the 'shock rocker' Marilyn Manson to school. The T-shirt featured a picture of a three-headed Jesus with the words see no truth, hear no truth, speak no truth. The back of the shirt featured the word believe with the letters lie highlighted in red. School officials deemed Boroff's shirt to be offensive and to promote values counterproductive to the educational environment, they suspended him. Boroff sued in federal court, asserting his First Amendment rights. Boroff's attorney, Chris Starkey, contended that school officials could not punish his client for this T-shirt unless they could show that the shirt was somehow disruptive of school activities. He also argued that the shirt was no more offensive than other T-shirts that school officials allowed. Other students had worn 'Slayer' and 'MegaDeth' T-shirts without incident. The reason for the censorship, according to Boroff, was what the principal had said to him: the shirt offended people on religious grounds by mocking Jesus. Both a federal district court and a federal appeals court rejected Boroff's lawsuit and ruled in favor of school officials. The U.S. Court of Appeals for the Sixth Circuit in Boroff v. Van Wert Board of Education (2000) determined that school officials could prohibit the T-shirt under the Fraser precedent because the T-shirt was plainly offensive and promoted disruptive and 'demoralizing values.' Other courts also applied a broad reading of Fraser and determined that public schools could ban the Confederate flag because it was a 'plainly offensive' symbol. Whatever one thinks of Marilyn Manson or the Confederate flag, if school officials can prohibit any student expression they classify as offensive or conveying offensive ideas, then much student speech is at risk. Tinker applied to most other student speech that was not school sponsored (Hazelwood) or vulgar or lewd (Fraser). There were differences and questions about Tinker too. In time, more school board attorneys interpreted Tinker narrowly as a case about viewpoint discrimination, in which school officials violated the First Amendment because they singled out a particular armband associated with a particular viewpoint. That is one reading of Tinker, but not the only reading. Others read...