Student Expression in the K-12 Setting

Opinions & Commentaries

After becoming aware of a plan among some students to protest the Vietnam War by wearing black armbands during school hours, school officials in Des Moines, Iowa, specifically banned wearing armbands in their schools. Previously, students had been allowed to wear “buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism.” The students wore the armbands in violation of the new policy, were suspended, and subsequently sued.

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457 U.S. 853 (1982) BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26, ET AL. v. PICO, BY HIS NEXT FRIEND PICO, ET AL.   No. 80-2043. Supreme Court of United States.   Argued March 2, 1982. Decided June 25, 1982. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT*855… Read more

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A public high school student delivered a speech at a school assembly nominating another student for a student office. During the speech, he referred to his candidate using a graphic and explicit sexual metaphor. The auditorium contained approximately 600 students, including 14-year-old students. Some of the students enjoyed the speech, while others appeared embarrassed. Prior to the assembly, several teachers warned the student against giving the speech because of the inappropriate content.

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Three former editors of the Spectrum, a student newspaper run as part of a journalism class and funded by the Board of Educators, sued after the principal removed two articles from the May 1983 issue that described student experiences with pregnancy and divorce. The principal believed that the students interviewed and parents discussed in the articles could be identified and found the discussions of birth control and sexual activity inappropriate for younger students.

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About 500 students attend the Milford Central School (Milford, N.Y.), which houses grades K-12. The Child Evangelism Fellowship, a non-sectarian, Christian missionary organization, sponsors some 4,400 Good News clubs in the United States for children ages 6 to 12. The 'tender age' of the children in question is central to the Court's analysis of the case. Rev. Stephen Fournier and his wife lead the Good News Club of Milford; it has approximately 25 members. New York state allows local school boards to adopt their own regulations for community use of school property. The Milford school district's policy is stated in a handbook: (1) School facilities "may be used by district residents for holding social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community …" (2) "School premises shall not be used by any individual or organization for religious purposes." In 1996 the Good News Club of Milford, for reasons not relevant to the case, seeks a new place in which to conduct its meetings. It submits a 'District Use of Facilities Request' asking to use the school as a meeting place. An interim superintendent refuses access, finding that the Good News Club's meetings would be "the equivalent of religious worship … rather than the expression of religious views or values on a secular subject." After an attorney raises the issue that denial of access to the Good News Club while access is allowed to the Girl Scouts, Boy Scouts, and the 4-H Club may violate the club's rights, school official solicit additional information about the meetings of the club, reconsider the request for facility access, and again deny access to the club. Both parties agreed that the school district created a limited public forum by issuing its community use policy for school facilities. A government-operated limited public forum is not required to and does not allow individuals to engage in all types of speech. Under Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), content-based discrimination is allowed in a limited public forum so long as the restricted speech falls outside the purpose of the limited forum. Viewpoint-based discrimination, however, is impermissible if the speech in question falls within the purpose of the limited forum. Thus, the government may restrict speech within the limited public forum if the restriction is not a viewpoint-based limitation and if the restriction is reasonable in light of the forum's purpose. The parties disagree, however, about whether club access would be a government endorsement of religion in violation of the Establishment Clause. The clause prohibits government speech endorsing religion while private speech in support of religion is protected by the Free Speech and Free Exercise clauses. With respect to equal access to limited public forums for religious groups, the Supreme Court typically finds no violation of the Establishment Clause where there is little concern that the public would perceive an endorsement of religion by the government entity and where any benefit to religion is merely incidental. In 1997 the Good News Club files in federal district court and offers arguments related to freedom of speech, equal protection and religious freedom under the Religious Freedom Restoration Act. The district court holds in summary judgment for the Milford Central School. In 2000 Hearing an appeal limited to the First Amendment issue claim, the 2nd Circuit panel (2-1) affirms the district court's dismissal of the free speech claim. The appellate court finds that the school was not discriminating between viewpoints but rather had excluded the club because the content of its meetings consisted of "religious instruction and prayer" — a permissible viewpoint-neutral reason. The Supreme Court grants the petition for cert. on October 10.

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