Lesson 3: Student Youth Due Process

 How much freedom of expression should students have in the school environment?

It became increasingly clear that the legal system could not abridge the rights of citizens merely because they happen to be minors. The waters became a bit more murky when constitutional rights were extended to children in the educational arena. Shortly after the Supreme Court considered the rights of children in the juvenile justice system, a series of cases arose testing the limits of first amendment freedoms in the school environment.

Traditionally, the Court viewed student first amendment rights as the delicate task of balancing competing interests; an individual's interest in protecting free expression and the school's interest in restricting activity that would substantially disrupt the learning process. In the first test case, Tinker v. Des Moines Community Independent School District 393 U.S. 503 (1969), the Court construed the First Amendment to permit the wearing of black armbands to school to protest the United States' involvement in the Vietnam War. The majority reasoned that the students' wearing of black armbands (a symbolic expression of speech) would not materially interfere with the learning process and thereby present a serious threat to maintaining appropriate discipline in the school. The decision in Tinker was to be the broadest interpretation the Court gave to student first amendment rights.

Nearly two decades passed before the Supreme Court revisited its position in Tinker. This time, the Court struck the balance in favor of the school boards. In Bethel School District v. Fraser 478 U.S. 675 (1986), the Court ruled that school authorities could prohibit a student from delivering a speech in a school assembly which contained an elaborate sexual metaphor. Similarly, in Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988), the Court held that a principal could prevent the publication of an article in a school newspaper which violated privacy interests by revealing the identities of students and other persons involved in certain conduct discussed in the article. In both instances, the Court allowed the school districts greater latitude in regulating speech than in Tinker. In Bethel, the Court modified Tinker by allowing school authorities to regulate speech that overstepped the bounds of socially appropriate behavior. In Hazelwood, the Court went even further by allowing the school to regulate speech when reasonably related to legitimate pedagogical concerns, a standard the school could almost always establish. Neither decision claims to overrule Tinker, but the impact of Tinker on future student speech cases has been severely weakened.

Given a moral dilemma concerning students' right to freedom of speech in the school environment, students will be able to:

• Explain the arguments supporting and opposing a student's constitutional right to wear an armband to school as an expression of speech.
• Take a position supporting or opposing a student’s right to freedom of expression based upon conflicting issues and values.

Handout 3A "Tinker v. Des Moines"

Handout 3B "Mary Beth Tinker's Dilemma"

Handout 3C "Hazelwood v. Kuhlmeier"

Handout 3D "Principal's Dilemma"

Handout 3E "Bethel v. Fraser"

Handout 3F "School Official's Dilemma"

1 class period

 Distribute Handout 3B "Mary Beth Tinker's Dilemma," Handout 3D "Principal's Dilemma," and Handout 3F "School Official's Dilemma." Divide the class into triads (groups of three) and ask students to discuss Mary Beth Tinker's dilemma. Each group should determine if they can agree whether Mary Beth should wear the armband. Students should have a similar discussion about the principal's dilemma and the school official's dilemma. After completing the exercise, have students explain their answers to the following questions:

• Why is Mary Beth having a difficult time determining whether to wear the armband?
• To whom does Mary Beth have an obligation in making her decision (herself, the school, her parents, fellow students)? What are these obligations?
• Can you present arguments to support Mary Beth's decision to wear the armband? Can you present arguments to oppose Mary Beth's decision to wear the armband?
• Why would Mary Beth be concerned with the possible disruption of school activities?
• Why is the right to freedom of expression (symbolic expression in this case) important to Mary Beth?
• What, in your opinion, are acceptable methods of protest? What are unacceptable methods? Explain.
• Is there a conflict in this case, between the right to freedom of speech and the threat of disruption in the school? Explain.
• If there is a conflict, which issue is more important, the right to freedom of speech or the threat of disruption in the school.
• Do you think the facts in this case present a true threat of disruption in the school? Do you need more information to answer this question? If so, what information?
• Can you predict the short range and long range consequences if Mary Beth decides to wear the armband?
• What would you have done if confronted with the same dilemma as Mary Beth Tinker? Why?
• How far would you go to express your view about a controversial issue?
• What is the Principal's dilemma? Explain.
• Why is this a dilemma? What are the issues and why do they create conflict? Explain.
• How is the principal's dilemma similar to and different from Mary Beth Tinker's dilemma? Explain.
• What is the conflict presented by the school official's dilemma?
• How is the school official's dilemma similar to and different from Mary Beth Tinker's dilemma? Explain.
• How is the school official's dilemma similar to and different from the principal's dilemma? Explain.
• Who has the most difficult dilemma to resolve? Why?

Students should engage in a role-play in which one student presents arguments supporting a decision to wear the armband and another student presents arguments opposing a decision to wear the armband.

Students should write letters to Mary Beth Tinker advising her about the decision she should make.

Based on multiple intelligences theory

Linguistic: Conduct a debate on whether Mary Beth should wear the armband.

Logical Mathematical: Complete a survey of the class concerning students' views about whether Mary Beth should wear the armband.

Bodily Kinesthetic: Role-play a scene in which Mary Beth is sent to the principal's office to discuss her actions.

Interpersonal: Discuss the meaning of consensus and determine if students in small groups can reach consensus about whether Mary Beth should wear the armband.

Spatial: Have students draw a cartoon about the Tinker case, the principal's dilemma (Hazelwood) and the school official's dilemma (Bethel).

Mary Beth Tinker had one of the most difficult decisions in her life. She and her parents opposed the Vietnam War. In December 1965, they attended a meeting in which methods of protesting the Vietnam War were discussed. It was decided that black armbands would be worn as a symbol of their protest against the War.

When the principal found out about the meeting of the anti-war group and their decision to wear the armbands to protest the War, he and the administration passed a rule. Students wearing armbands would be suspended unless they agreed to remove them.

Mary Beth is a good student and is concerned about the affects of a suspension on her record and her future applications to college. In addition, she does not want her actions to cause any disruption in the school or lead to violence. On the other hand, Mary Beth strongly opposes the Vietnam War and believes the War is immoral. She also feels that the Constitution guarantees every citizen the right to freedom of expression and believes the wearing of the armband is symbolic expression. Moreover, she considers freedom of speech an important right in a democratic society.

Mary Beth is faced with the dilemma: Should she wear an armband to school to protest the Vietnam War?

If all students agree that Mary Beth should not wear the armband, present the following alternative dilemma: Mary Beth's uncle, to whom she was very close, had been killed in the war as well as relatives of close friends.

Mary Beth Tinker’s dilemma is based on the case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503. Following Tinker, a number of decisions considered the First Amendment rights of students in public schools.

The saga of free speech and education continues. In 1983 several students working on a school newspaper submitted articles to the principal for review and approval. After reading the articles, the principal became alarmed at the sensitive nature of their contents. One article described the pregnancy experiences of three female students. Although the girls were not referred to by name, enough information was provided in the stories to possibly reveal their identities. There was also some question as to the material for younger readers. The second article related a student’s feelings about her parents’ divorce. The student was critical of her parents, especially her father. The principal felt that in all fairness, some effort should have been made to contact the parents and give them an opportunity to respond.

With the deadline for publication approaching, the principal had to act quickly. He believed that the articles in question raised serious issues about privacy and this created a legitimate school concern in preventing them from reaching publication. However the principal also knew that the First Amendment protected students’ right to freedom of expression in public school. Should the principal decide to remove the two articles, the action might violate students’ constitutional rights.

The principal has a dilemma. Should the principal remove the articles from the school newspaper?

From Hazelwood District v. Kuhlmeier, 484 U.S. 260 (1988).

A student at a public high school decided to nominate a fellow student for one of the school’s elective offices. He delivered a speech on the candidate’s behalf at a school assembly. The speech contained clear sexual references about the candidate although no sexual language or profanity was used. Several faculty members had previously warned the student that this speech was inappropriate for grades 8-12, however the student believed that his right to make these remarks was protected under the First Amendment to the Constitution.

Approximately 600 students attended the assembly and heard the speech. Some hooted and yelled and mimicked sexual behavior while others just sat there confused and embarrassed. School officials were outraged. They did not want to violate a student’s First Amendment rights, but believed that this speech was prohibited under a school disciplinary rule preventing students from using obscene language. School officials considered suspending for three days the student who gave the speech and removing his name from a list of graduation speakers.

School officials have a dilemma. What action should they take to resolve this problem?

From Bethel School District No. 403 et. al. v. Fraser, 478 U.S. 675 (1986).