public schools

In 1966, in a packed hearing in Delano, California, then New York Senator, Robert F Kennedy, was arguing with the county sheriff, LeRoy Gaylen. LeRoy had arrested union organizers who had committed no crime, claiming the organizers “looked ready to violate the law.” Bobby Kennedy retorted, “May I suggest that during the luncheon period of time that the sheriff and the district attorney read the Constitution of the United States?” (PBS). Freedom of expression is probably the the most well-known, most agreed upon, and most treasured right in the United States of America; a country in which people disagree on almost everything else, including how the constitution should be interpreted, and the degree to which civil liberties, such as the right to bear arms, should be enforced. Despite these disagreements, almost all Americans—including liberals, conservatives, libertarians, democratic socialists, or folks of almost any other ideology—support and respect the First Amendment and believe there should be little to no restrictions on the free exchange of facts, opinions, ideas, values, and beliefs. But what does freedom of expression exactly mean, and how much practical protection is there for it? When is it or is it not okay to express yourself? Freedom of expression is not as solid, straightforward, nor black-and-white as many people think. The level of protection this right has been offered has changed over time, gone through many reforms and rethinking, and ultimately depends on a variety of factors (LegalInformationInstitute). I seek to explain the evolution of freedom of expression in the United States, and the laws, past and present, regarding one of the most important and basic human rights. In this blog, I’ll focus on public schools. The primary component of freedom of expression is freedom of speech, which can take place in a direct (verbal), or indirect (actions) way (LegalInformationInstitute). Freedom of speech, like all other civil liberties, is protection of our rights by the United States constitution from the government. This means that the level of protection free speech is offered ultimately boils down to the forum on which it takes place. If you are expressing yourself on a certain forum, the regulators of that forum are allowed to curtail your free speech as they see fit, and are not violating your constitutional rights, as it is their forum, and therefore their rules. A prominent example of this is the authority of schools to curtail the free speech of students in order to create a stable environment in which all the students feel safe, and nobody is disturbed by other students’ free expression.  This can be seen in the case of Morse V. Frederick in 2007. In a school-supervised demonstration, a student named Joseph Frederick held up a banner with the message “Bong Hits 4 Jesus.” Debora Morse, the principal of his school, confiscated his banner and suspended him for 10 days (Oyez). She justified her action by arguing that Frederick had advocated illegal drug use, which was a breach of the school’s policy, kind of like how when I went to elementary school, the students, such as myself, were not allowed to create any violent material (whether it was pretend play, a gesture, a drawing) within the school campus. Frederick sued under 42 U.S. Code § 1983, the federal civil rights statute, which stated that “Any citizen or resident of any US state, territory, or the District of Columbia subjected by another citizen or resident of any US state, territory, or the district of Columbia, of any constitutionally guaranteed rights, privileges, or immunities, will be liable to the injured party in legal action or other forms of proceeding for redress” (LegalInformationInstitute). The district court, however, found no constitutional violation in the school’s curtailing of Frederick’s free speech, and ruled in favor of Morse. And the court ruled that even if it was decided that Morse’s action was unconstitutional, Morse would have “qualified immunity” against a lawsuit. However, the US court of appeals for the ninth circuit rebuked the ruling of the District Court, and decided that Morse’s censoring of Frederick’s message was a violation of his first amendment right to freedom of speech.  Furthermore, Morse would have no qualified immunity because “any reasonable principal would have known that Morse’s actions were unlawful” (Oyez). So, this leaves us with two questions: does the first amendment allow public schools to curtail the free speech of students if they advocate illegal drug use? And does a school official have qualified immunity against a lawsuit  under 42 U.S. Code § 1983, when they curtailed Frederick’s first amendment right to freedom of speech? The answer to these questions is “yes and not reached” (Oyez). This case ultimately made itself all the way to the Supreme Court, and they made a 5-4 decision to reverse the decisions of the ninth circuit. Justice John Roberts Jr voiced the majority opinion that school officials do have the right to curtail the free speech of their students if they advocate illegal drug use. Though Frederick’s message was cryptic, it was clearly advocating illegal drug use; therefore, the school had the right to discipline Frederick for his message. However, the four dissenters argued that while they agreed that Principle Morse should have immunity from lawsuit, “the majority opinion was “[…] deaf to the constitutional imperative to permit unfettered debate, even among high-school students […]” (Oyez). This is only one example which shows that freedom of speech depends on the forum in which it takes place. Public school students do not have as strong a right to freedom of speech as adults do because the schools can regulate the behavior of its students in order to make sure that the school is a safe, comfortable environment for all. On the other hand, this does not mean that students have no freedom of speech in public schools, and this can be seen in the case Tinker V. Des Moines Independent Community School District. In Tinker, the Supreme Court ruled that Iowa Public School officials had violated the