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Student Rights to Free Speech
Holmes Youthful Trainee Act
About Us
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Student Rights to Free Speech
Holmes Youthful Trainee Act

Students’ Rights to Free Speech...

Students Pg 3

The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says:

   'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.'


They consider that the flag is an 'image' within this command. For this reason they refuse to salute it. [319 U.S. 624, 630]   Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecutions for causing delinquency.


The Board of Education moved to dismiss the complaint setting forth these facts and alleging that the law and regulations

are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the 'due process' and 'equal protection' clauses of the Fourteenth Amendment to the Federal Constitution. The cause was submitted on the pleadings to a District Court of three judges.


That Federal District court held that the Board of Education could not require the Jehovah’s Witnesses to salute the flag and recite the Pledge of Allegiance.  It prevented the School from making the people who started the law suit and others who similarly believed would not have to recite and salute the flag.


The Board of Education appealed that decision directly to the U.S. Supreme Court.


The U. S. Supreme Court (many of whom had ruled in the Minersville School District v. Gobitis that Jehovah’s Witnesses must salute the flag and say the Pledge of Allegiance ruled instead:


   The decision of this Court in Minersville School District v. Gobitis and the holdings of those few per curiam decisions which preceded and foreshadowed it are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is affirmed.


Mr. Justice BLACK and Mr. Justice DOUGLAS, concurring.


The statute requires the appellees to participate in a ceremony aimed at inculcating respect for the flag and for this country. The Jehovah's Witnesses, without any desire to show disrespect for either the flag or the country, interpret the Bible as commanding, at the risk of God's displeasure, that they not go through the form of a pledge of allegiance to any flag. The devoutness of their belief is evidenced by their willingness to suffer persecution and punishment, rather than make the pledge.


We believe that the statute before us fails to accord full scope to the freedom of religion secured to the appellees by the First and Fourteenth Amendments.


... Long reflection convinced us that although the principle is sound, its application in the particular case was wrong. Jones v. Opelika, 316 U.S. 584, 623 , 62 S.Ct. 1231, 1251, 141 A.L.R. 514. We believe that the statute before us fails to accord full scope to the freedom of religion secured to the appellees by the First and Fourteenth Amendments.

... The  state did not claim that a clear and present danger would be created if the students remained passive during the pledge.


...Finally, compulsion is not a legitimate means for creating national unity.


The Supreme Court decided the students were in the right, and on First Amendment grounds struck down the West Virginia ordinance as violating the right of free expression. The Court stated:


   "Educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual," ... "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."


The Court determined that students had the right not to be coerced by school administrators to doing something that disagreed with their religious beliefs. Free speech in this case meant the right not to say something, in this case, the Pledge of Allegiance.



The next significant student rights case would not be heard until twenty (20) years later.



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


It was in the era of the Vietnam war.  Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school.


In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program. The students were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands.


District Court dismissed the complaint. It upheld the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F.Supp. 971 (1966). The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the conduct of school activities.

The Court of Appeals, sitting en banc, affirmed the Federal District Court when there as an equally divided court, which left the lower court decision stand.


The United States Supreme Court held for the students right to a silent protest.


In writing in favor of the students for the majority, Justice Abe Fortas wrote these iconic words:

   "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate … School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect … In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."


But Fortas added an important caution to certain activities:


   conduct that "materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech."


In other words, not all student conduct is First Amendment protected, only that which does not disturb the classroom environment or invade the rights of others. This standard, also known as the "material and substantial disruption test," has basically remained the standard in which the school's right to prescribe free speech is examined at the secondary rank as well as at public colleges and universities.

After the Tinker case, a host of cases were brought at the lower court level litigating public school free speech issues. Many of these came down on the side of freedom of expression for students. Many lower courts found themselves asking, after Tinker v. Des Moines, what student speech can in fact be regulated.


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


At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days.


The U.S. Supreme Court in a 7 to 2 decision stated that it was appropriate for the school to prohibit the use of vulgar and offensive language. The Supreme Court set some limits on student First Amendment rights when the Supreme Court sided with the school.


Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the assumed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."


The Court found that Fraser had failed the "substantial disorder" part of the Tinker test. Chief Justice Warren Berger, writing for the majority of 7 (seven) justices, said that schools have a responsibility to instill students with "habits and manners of civility as values."


The effect of Fraser's speech, suggested Berger, was to undermine this responsibility; therefore, he did not receive First Amendment protection for it. Not only can schools take into account whether speech is offensive to other students, said Berger, "the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior."


The Bethel case showed that the Supreme Court saw limitations on student free speech rights and to that extent overruled to some extent (or perhaps clarified) the ruling in Tinker v. Des Moines. For although


Hazelwood School District v. Kuhlmeier (1988)


The Spectrum, the school-sponsored newspaper at Hazelwood East High School in Missouri was looking for trouble when it decided to publish an article on pregnancy among students naming, names, as well as an article on students of divorced parents. It may have been an errant