Education Law

Student Free Speech

Tinker v Des Moines (1969)


Several students and parents in Des Moines organized a protest of the Vietnam war. Students were to wear black arm bands to school in protest. When the school found out they warned all the students and parents that anyone wearing the armbands would be would be suspended. The Tinker children wore their armbands to school (they were the only ones of the group to do so) and were suspended. Mr and Mrs. Tinker filed suit claiming that the school violated the children’s right to freedom of speech and expression. The school claimed that the armbands were disruptive.

The court ruled against the school district saying that “students do not shed their constitutional rights at the school house gates. In doing so the court protected what has come to be known as “symbolic speech.”



Island Trees School District v. Pico (1982) – Censorship Case


The Board of Education of the Island Trees School District in New York directed the removal of nine books from the libraries of the Island Trees senior and junior high schools because in the Board’s opinion the books were “anti­American, anti­Christian, anti­Semitic, and just plain filthy.” Some books included were: The Fixer, Soulon Ice, Slaughterhouse Five, Go AskAlice, The Best Stories by Negro Writers, and others. Four students from the high school and one from the junior high school sued the school district, claiming that the removal of the books was a violation of the First Amendment’s guarantee of freedom of speech.

The Supreme Court of the United States ruled in favor of the students, saying that the books were not required reading. According to Justice Brennan, who cited West Virginia Board of Education v. Bamette, 319 U.S.624 (1943), “Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in these books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” He also cited Tinker v. Des Moines School District, 393 U.S.503 (1969), saying that high school students have First Amendment rights in the classroom. Although the schools have a right to determine the content of their libraries, they may not interfere with a student’s right to learn. Therefore, the schools may not control their libraries in a manner that results in a narrow, partisan view of certain matters of opinion. The Court stood against the removal or suppression of ideas in schools.



Bethel School District v Fraser (1986)


Matthew Fraser, a high school student in Bethel, Washington, delivered a speech nominating a fellow student for a student elective office. The speech was made during school hours as a part of a school-sponsored educational program in self-government. The voluntary assembly was attended by about 600 students, many of whom were 14-year-olds. Throughout the speech, the student deliberately referred to his candidate in terms of an elaborate and explicit sexual metaphor. The reactions of the students varied from enthusiastic hooting and yelling to embarrassment and bewilderment. Before the speech, the student had discussed it with several teachers, and two teachers told him they thought it was not appropriate. The student was suspended for three days for having violated the school’s “disruptive conduct” rule, which prohibited conduct that substantially interfered with the educational process, including the use of obscene, profane language or gestures.

The U.S. Supreme Court held that the school board acted entirely within its permissible authority in punishing Fraser for “his offensively lewd and indecent speech.” This was not a situation where Fraser was sanctioned for expressing a political viewpoint as in the Tinker “armband” case; the sexual innuendo was incidental to the merits of the candidate who was being nominated. “It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse . . . Schools must teach by example the shared values of a civilized social order.”

The Court repeated its recognition of an interest in protecting minors from exposure to vulgar and offensive spoken language. Even in a heated political discourse among adults, the Court emphasized the need for consideration for the personal sensibilities of the audience. “A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.” The Court also stated that the school regulation and the negative reactions of two teachers gave Fraser sufficient notice that his speech might result in his suspension. (Hardin)


Fujishima v. Board of Education (7th Cir. 1972)


In 1970, Burt Fujishima and Richard Peluso were suspended from Lane Technical High School in Chicago for four and seven days, respectively, for distributing about 350 free copies of an “underground” newspaper they published entitled “The Cosmic Frog”. Robert Balanoff was also suspended for two days for giving another student an unsigned copy of a petition calling for “teach-ins” concerning the war in Vietnam. Robert was also suspended for five days for distributing leaflets about the war to 15 or 20 students during a fire drill. The board of education required prior approval of publications to be distributed at school.

At issue was whether or not a board of education rule which prohibits any person from distributing publications on school premises unless they have been approved by the superintendent was constitutional? The courts decision was no, a rule requiring prior approval of publications is an unconstitutional restraint in violation of the First Amendment.

The U.S. Court of Appeals interpreted the Tinker v. Des Moines decision to mean that school officials would have to be able to predict that existing conduct, such as wearing armbands, would probably interfere with school discipline in order to justify punishment of students for the exercise of their First Amendment rights. Such “predictability” is not “a basis for establishing a system of censorship and licensing designed to prevent the exercise of First Amendment rights.” (emphasis added) School officials may establish rules setting forth the time, manner, and place in which the distribution of written materials may occur. Then, the board may punish students who violate those rules. (PATCH – See Below)



Eisner v. Stamford Board of Education (2d Cir. 1971)



Students in a Connecticut High School produced and distributed a mimeographed newspaper entitled the Stamford Free Press. The first three issues were distributed off school grounds, and the students requested permission to distribute it on school grounds. The board of education issued a regulation prohibiting the distribution of written material on school grounds without prior approval of the school administration. The only guidelines were that material should not be distributed if it will interfere with school operation or discipline, will cause violence or disorder, or will invade others’ rights. The students filed suit for a declaratory judgment regarding their rights.

The following questions were raised:

  • (1) Is it constitutional for school boards to prevent the distribution of material on school grounds?
  • (2) Was this board’s regulation constitutional?

The 2nd Circuit Court decided the follwong:

(1) Yes, prior restraints are permissible under the Tinker decision if school officials can reasonably predict “substantial disruption of or material interference with school.”

(2) No, this particular board regulation is unconstitutional because it did not establish specific procedural safeguards for the review of the materials to be distributed. In effect, this decision requires school officials to balance their interest in maintaining discipline with students’ rights. The procedural safeguards must prescribe: (a) a definite, brief period of time for completing a review of the material; (b) to whom and how material may be submitted for clearance. Prompt review or “appeal” procedures must be provided for situations in which permission is denied. (Hardin)


Quarterman v. Byrd (5th Cir. 1971)



Charles Quarterman, a tenth-grade student at Pine Forest High School in North Carolina, was suspended for ten days for distributing an “underground” newspaper at the school in November, 1970. A school rule prohibited the distribution of publications by students without the express permission of the principal. Two months later, he distributed another newspaper with an article which concluded this statement in large capital letters:


He was again suspended for ten days.

At issue was whether or not a school regulation prohibiting students from distributing publications without the express permission of the principal was an unconstitutional prior restraint on students’ First Amendment rights? The 5th Circuit ruled that this regulation is invalid because it lacks criteria to be followed by school officials in deciding whether to grant or to deny permission, as well as procedural safeguards for the review of the decision of school officials. The decsion was based upon the fact that Quarterman was not disciplined because of the potentially inflammatory and disruptive speech, but because he had violated the regulation prohibiting the distribution of printed material without permission. Therefore, his First Amendment rights to freedom of the press and expression were violated. Because the extent of free speech and expression is not absolute, and may be affected by the age or maturity of the audience to whom it is addressed, a rule with procedural safeguards and specific guidelines for determining what may be published or distributed in schools may be constitutional. (PATCH – See Below)

Student Discipline

Goss v. Lopez (1975)



Due Process


Several public high school students (including D. Lopez) were suspended from school for misconduct but were not given a hearing immediately before or after their suspension. School authorities in Columbus, Ohio, claimed that a state law allowed them to suspend students for up to ten days without a hearing. The students brought a legal action, claiming that the statute was unconstitutional because it allowed school authorities to deprive students of their right to a hearing, violating the due process clause of the Fourteenth Amendment. The issue was whether the suspension of a student for a period of up to ten days without a hearing constitutes a violation of the due process clause of the Fourteenth Amendment.

The Supreme Court of the United States said that education is a property interest protected by the Fourteenth Amendment’s due process clause and any suspension requires prior notice and a hearing. Permitting suspension without a hearing is, therefore, unconstitutional. The Court said that oral or written notice of the charges brought against a student must be given to the student who is being suspended for more than a trivial period. If he denies the charges, the student must be given a hearing. The hearing may be an informal one where the student is simply given an explanation of the evidence against him and an opportunity to tell his side of the story. (PATCH – See Below)


Ingraham v. Wright (1977)



Corporal Punishment


Florida law permitted corporal punishment if not “degrading or unduly severe.” On one occasion in Dade County, a student named Ingraham was given more than 20 licks on the buttocks from a 2′ X 4′ X 1/2″ paddle. (Witnesses disagree about the exact number.) The student had been accused of being slow to respond to the teacher’s orders to leave the stage of the auditorium. The injury was so severe that the boy required medical attention for the bruises on has body and remained out of school for eleven days. A second student, Andrews, had been paddled several times for such offenses as being late to class, making noise, “fooling around,” and not having his tennis shoes for gym class. Andrews was struck on the arms on two occasions, losing the use of has arm for a week.


(1) Is the administration of corporal punishment in the schools “cruel and unusual punishment” as prohibited by the Eighth Amendment to the U.S. Constitution?

(2) If corporal punishment is constitutional, are parlor notice and an opportunity to be heard required under the due process clause of the Fourteenth Amendment?

No. The Eighth Amendment does NOT apply to paddling in the schools, and no, a notice and a hearing are not required in order to satisfy the due process clause of the Fourteenth Amendment.

This was as close a decision as there can be, with the nine justices splitting their votes five to four.

The U.S. Supreme Court stated that the Eighth Amendment is intended to protect the rights of people convicted of crimes against the state, not school children with disciplinary problems. Schools are open institutions, where children can leave at the end of the day, and schools are supervised by the community. Also, ordinary paddling neither violates any substantive rights nor causes a student to suffer any grievous loss.

To require notice and a hearing for every corporal punishment case would “significantly burden the use of corporal punishment as a disciplinary measure”, according to Justice Powell. In extraordinary cases where the teacher or school official inflicts too hush a punishment, the parents can sue for civil damages and the state can charge the teacher or the school official with assault and battery. In these extraordinary cases of excessive punishment, the student’s Fourteenth Amendment liberty interests are protected by the other available remedies, such as civil suits against the teacher or criminal charges. The Court noted that procedural safeguards are desirable but not required.

One of the four dissenting justices, Justice White, expressed concern about the severity of the beatings in this case: “the record reveals beatings so severe that if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster.” He did not suggest that spanking in the public schools is in every instance prohibited by the Eighth Amendment, but he did not understand why such severe punishment, unacceptable in a civilized society, becomes more acceptable just because it is inflicted on children in the public schools. Justice White also considered it a denial of due process to allow the state “to punish first and hear the student’s version of events later,” which was in effect the result of the decision in this case that due process did not require prior notice and a hearing before the infliction of punishment, but that students could file civil suits or criminal complaints afterwards. (PATCH – See Below)


Student Newspapers - Censorship

Hazelwood School District v. Kuhlmeier (1988) – Students Rights


Kathy Kuhimeier and two other journalism students wrote articles on pregnancy and divorce for their school newspaper. Their teacher submitted page proofs to the principal for approval. The principal objected to the articles because he felt that the students described in the article on pregnancy, although not named, could be identified, and the father discussed in the article on divorce was not allowed to respond to the derogatory article. The principal also said that the language used was not appropriate for younger students. When the newspaper was printed, two pages containing the articles in question as well as four otherarticles approved by the principal were deleted.

The Supreme Court of the United States held that the Hazelwood School District did not violate the First Amendment right of the students. The Court ruled that School officials need not tolerate speech which is inconsistent with the school’s basic educational mission. The Court distinguished this case from the Tinker decision (school officials could not punish students for wearing armbands in protest of the Vietnam war “students do not shed their constitutional rights at the schoolhouse gate”) because the Tinker case involved a student’s personal expression. This was, instead, a school newspaper, and as such could reasonably be perceived to bear the “imprimatur” of the school. They justified this because the publication of Spectrum was a part of the curriculum, i.e., it was in the curriculum guide as a part of the Journalism course, it was taught during school hours by a faculty member, the students received grades and academic credit, the faculty advisor exercised control over the publication, and the principal had to review it. The school’s policies did not reflect an intent to expand the students’ rights by converting a curricular newspaper into a public forum. The court further added that the principal’s fears were reasonable: he was concerned that the students’ identities could not be assured, that the privacy interests of boyfriends and parents were not adequately protected, and that parents mentioned in the divorce article were not given an opportunity to defend themselves. (Hardin)