Freedom of Expression and Public Education

This article focuses on freedom of expression and public education. The boundaries and limits of students' rights to free expression in public schools are discussed. This article describes the relationship between freedom of expression in schools, the First Amendment, and the United States Supreme Court. Areas of inquiry include symbolic dress, free speech, and religious expression. The issues associated with government regulation and oversight of religious expression in public schools are addressed.

Keywords American Civil Liberties Union; Bill of Rights; Equal Access Act; Establishment Clause; First Amendment; Free Exercise Clause; Free Speech; Freedom of Expression; Libel; Public Education; Religious Expression; Slander; Supreme Court; Symbolic Clothing; Symbolic Dress; Symbolic Speech

Overview

In the United States, freedom of expression is guaranteed and protected by the First Amendment of the United States Constitution. The First Amendment, part of the Bill of Rights, prohibits the national government from limiting freedom of expression. The First Amendment states that the government and “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Freedom of expression refers to a person's right to say or publish what he or she believes and comes with societal and legal parameters. For example, the U.S. Supreme Court has named numerous instances of impermissible speech. Throughout the twentieth century, the Supreme Court ruled on conflict surrounding issues related to freedom of expression, such as free speech, free press, obscenity, libel, slander, symbolic speech, and commercial speech, and, as a result, has defined the parameters of free speech acceptable in society and in public schools.

The U.S. democratic process invites and facilitates questioning and challenging the rights and liberties described in the U.S. Constitution and the Bill of Rights. The U.S. Constitution and the Bill of Rights are living documents subject to ongoing reinterpretation. New environments and scenarios arise that require constitutional interpretation. Public education is a prime location of constitutional challenge and interpretation. Public institutions are held accountable for abiding by and promoting the laws of the nation. Public education and public schools are subject to the laws as specified in the U.S. Constitution. The public school system, in the twentieth century, has become a location of constitutional challenge and interpretation. The U.S. public education system, a relatively new and still evolving public program, is often in tension with constitutional law. Throughout the twentieth century, the Supreme Court has both upheld the rights of administrators to censor students' rights for free expression and the rights of students themselves. The corresponding tension is a ubiquitous part of American society. The current socio-political climate creates students who know their rights and administrators charged with protecting the safety of diverse students and communities.

Students and teachers have significantly different experiences of and protections of freedom of expression in public schools. Students' rights to freedom of expression is, for the most part, protected and guaranteed in public schools. Exceptions to student freedom of expression rights do occur. U.S. courts have found that school officials can censor student expression only when student speech is a substantial disruption of school activities or is determined to be vulgar, profane, or offensive. In contrast to the student experience, teachers, as employees, have their freedom of expression severely curtailed in the public school setting. U.S. courts have ruled that teachers may not introduce personal opinion or belief into their teaching. The First Amendment does not protect teacher speech in a public school setting (Simpson, 2007).

The following section provides an overview of the relationship between freedom of expression, the Bill of Rights, and the United States Supreme Court. This section serves as the foundation for later discussion of the connection between students' rights to free expression and public education. Areas of inquiry include symbolic dress, free speech, and religious expression. The issues associated with religious expression in the public schools, particularly the Presidential Guidelines on Religion in the Schools, are addressed.

Freedom of Expression, the Bill of Rights & the U.S. Supreme Court

The Bill of Rights, which makes up the first ten amendments to the U.S. Constitution, was added to the U.S. Constitution in 1791. The Bill of Rights, which includes ten Constitutional amendments from 1791, three post Civil War amendments, and the Nineteenth Amendment from 1920, protects individual rights. The framers of the Bill of Rights, notably James Madison and Thomas Jefferson, were influenced by the Age of Enlightenment. The First Amendment illustrates the framers' high opinion of reason, truth, inquiry, liberty, and questioning of authority. The First Amendment concerns and protects freedom of speech, association, assembly, press, and religion.

First Amendment stakeholders, including policymakers, students, teachers, religious groups, and legal groups, have taken their challenges on freedom of expression issues, such as prayer, dress, and student publications, to the U.S. Supreme Court. The Constitution and the Supreme Court allow for and encourage Americans to test and establish the social and legal parameters of freedom of expression. The U.S. system of government includes two forces: Majority rule through elected representatives and limitation of power to insure individual rights. First Amendment cases are often brought by legal rights organizations such as the American Civil Liberties Union (ACLU). The American Civil Liberties Union, and other legal defense organizations, believes that freedom of expression requires constant legal vigilance and protection. The American Civil Liberties Union, established in 1920, is a legal organization dedicated to protecting civil liberties such as first amendment rights, equal protection under the law, right to due process, and right to privacy.

Numerous First Amendment cases have been heard in the U.S. Supreme Court. These cases have created the law of the land. The history of the U.S. Supreme Court's protection of First Amendment rights is relatively short. In Abrams v. U.S. (1919), the Supreme Court ruled that speech acts could only be punished if the speech act presented a clear and present danger of imminent harm. Throughout the twentieth century, the Supreme Court heard freedom of expression cases. The Supreme Court has ruled that free speech protections include nonverbal expressions. Constitutionally protected symbolic speech includes works of art, t-shirt slogans, political buttons, music lyrics, and theatrical performances (“Freedom of Expression,” 1997).

The Supreme Court has also passed ruling on unprotected expression. The Supreme Court has found that government may place time, place, and manner restrictions on speech as long as the restrictions are reasonable. Examples include permits for public meeting or demonstrations. Limited exceptions to First Amendment protection were decided in the following cases. In Chaplinsky v. New Hampshire (1942), the Supreme Court ruled that the First Amendment does not protect fighting words intended to inflict injury or incite an immediate breach of the peace. In New York Times Co. v. Sullivan (1964), the Supreme Court held that defamatory falsehoods about public officials may be punished if the offended official can prove the falsehoods were published with malice. In Miller v. California (1973), the Supreme Court established three conditions that must be present if a work is to be deemed officially and legally obscene(“Freedom of Expression,” 1997). The conditions include the following:

• The work must appeal to the average person's prurient interest in sex.

• The work must depict sexual conduct in a patently offensive way as defined by effected community.

• The work, taken as a whole, must be considered to lack serious significant literary, artistic, political, or scientific value.

Applications

Students' Rights & Public Education

The U.S. Constitution does not guarantee the right to public education. Historically, public education has been the domain of individual state governments. In the second half of the twentieth century, control of public education began to switch from the state to the federal government. Areas of federal control include funding, administration, and standards. Public education in the United States, which began on a large scale in the twentieth century, is in constant tension and negotiation with the freedom of expression rights and liberties guaranteed in the Bill of Rights.

Civil Rights Act

The modern period of American public education, which began in the 1920s, is characterized by the rise of the testing movement, the development of adult education, the growth of progressive education, the influence of civil rights on education, the spread of federal aid to public schools, and the adoption of academic standards. Students' civil rights and civil liberties were expanded and clarified in the Civil Rights Act of 1964. The Civil Rights Act has the following goals:

• To enforce the constitutional right to vote; to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations;

• To authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education; to empower the Commission on Civil Rights;

• To prevent discrimination in federally assisted programs;

• To establish a Commission on Equal Employment Opportunity.

Department of Education

The U.S. Department of Education was established in 1980 under the Department of Education Organization Act. Prior to the Department of Education Organization Act, the Department of Education and the Department of Health and Human Services were united in one agency called the Department of Health, Education, and Welfare. The U.S. Department of Education oversees funding and education law. Today, public education is decentralized and the domain of both state and federal governments. Throughout the public education system, there is a tension between the interests of public school administrators and the individual constitutional rights of students for free expression. This tension in the public school environment and relationship is part of a larger tension between law, liberties, belief, and expression found in American democratic society (Martinson, 2000).

Premises of Student Expression

Civil liberties scholar Thomas Emerson argued that freedom of expression rests on four basic premises:

• The freedom of expression must ensure student self-fulfillment;

• The freedom of expression must aid the student in discovering the truth;

• The freedom of expression must aid the student to participate in decision making;

• The freedom of expression must strike a balance between stability and change.

Policymakers and school administrators have incorporated Emerson's views on free expression (Martinson, 2000). Ultimately, public schools can control student expression in instances when the student's expression relates to pedagogical concern. Public schools cannot suppress legitimate and constitutionally protected student expression or extend control beyond the school environment (Marczely, 1992). Perceptions of student rights have changed over the last century. Student rights have been influenced by school curriculum, increased instruction regarding student rights, the civil rights movement, and courts' decisions on student rights (Ratliff, 1978). Court decisions on student rights, described below, have centered on symbolic clothing in schools, student speech, and religion in schools.

Symbolic Clothing

Students often wear clothing or style symbolic of their political, social, or religious identity. Examples include the jilbab, political t-shirts, and Rastafarian dreadlocks (Gereluk, 2006). Are students wearing controversial clothing and styles, with politics, religion, sex, drugs, and guns content and messages, protected under the First Amendment? The U.S. Supreme Court has heard numerous cases about symbolic clothing in the public schools. In 1969, the U.S. Supreme Court heard the Tinker v. Des Moines Independent Community School District case. This case involved a situation in which a small group of students were suspended in 1965 for wearing black armbands to school to protest the United States' military action in Vietnam. The students and their supporters argued that public school administrators had violated their First Amendment rights with the suspension punishment. This case produced a landmark ruling. The U.S. Supreme Court ruled that students and teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. The U.S. Supreme Court found that schools could only censor student speech when school officials can show that student speech poses a substantial interference with the educational process. From then on, symbolic dress worn to school for political reasons became an expression protected by the First Amendment (Bowman, 2003). Numerous appeals to the Supreme Court have been made based on the Tinker ruling. For example, in 2006, the Harper v. Poway Unified School District appeal to the Supreme Court concerned the disciplining of two students who went to school wearing T-shirts with messages critical of gays (Trotter, 2006).

Student Speech

In many instances throughout the twentieth century, students have been punished for public representation and endorsement of controversial messages at school-sponsored parades, on school grounds, and in school publications. Some students and their supporters have chosen to appeal their punishments to local and national courts. While the Supreme Court found in favor of student rights to wear symbolic clothing in 1960, the Supreme Court ruled in favor of school administrators in two landmark student speech cases in the 1980s. In 1986, the U.S. Supreme Court heard the Bethel School District No. 403 v. Fraser case and found that schools could censor and punish students for lewd, indecent, or offensive speech. The Supreme Court argued that public school students' First Amendment rights are not equal to those of adult citizens. In 1988, the Supreme Court heard the Hazelwood School District v. Kuhlmeier case and concluded that the free speech rule, as specified in the Tinker case, need not apply to school-sponsored activities. The Supreme Court found that student speech that is inconsistent with a basic educational mission may be censored (Bowman, 2003). Ultimately, U.S. courts have found that school officials can censor student expression only when student speech is a substantial disruption of school activities or is vulgar, profane, or plainly offensive (Simpson, 2007).

The Supreme Court's 1988 Hazelwood School District v. Kuhlmeier ruling has had a significant effect on all subsequent student speech cases and student publications in general. The Hazelwood ruling has changed the scope and focus of student journalism. Students and administrators know that censorship of student expression in school newspapers and yearbooks is constitutional so long as the speech is pedagocically relevant. The response of states to the Hazelwood ruling has been extreme. In response to the Hazelwood ruling, four states, including Arkansas, Colorado, Iowa, and Kansas, enacted state freedom of expression laws covering high school journalists. Massachusetts amended its freedom of expression law. Scholars and educators continue to look out for a Hazelwood effect on student speech. The perception remains among some educators that Hazelwood has had a major negative impact on freedom of the high school press (Paxton & Dickson, 2000).

Freedom of Religion

The First Amendment includes two clauses related to religious expression: The establishment clause and the free exercise clause. The establishment clause prohibits the establishment of a nationally sanctioned religion. The free exercise clause protects rights of free speech and expression (Baylis-Heerschop, 2006). Local, state, and federal courts have heard numerous cases concerning student religious rights. For example, does the First Amendment protect a student's right to read a Bible story in class? In 1962, the U.S. Supreme Court heard Engel v. Vitale and ruled that the New York Regent's prayer violates the First Amendment. The State of New York was prohibited from requiring that an official state prayer be recited at the beginning of each school day. In 1985, the U.S. Supreme Court heard the Wallace v. Jaffree case and found that Alabama's authorization of silent prayer and teacher-led voluntary prayer violated the First Amendment. In 2000, the U.S. Supreme Court heard the Santa Fe School District v. Doe case and found that the district's authorization of student prayer before football games violated the First Amendment (Sass, 2007).

Issues

Government Oversight & Regulation of Religion in the Public Schools

Public schools and religious students and families have been in tension since the 1962 ruling in Engel v. Vitale that prohibited organized prayer in public schools. To support the public school system's efforts to abide by constitutional law, the U.S. Secretary of Education distributed a document entitled the Presidential Guidelines for Religious Expression in Public Schools (1995). The Secretary of Education stated that the purpose of the presidential guidelines was to end the confusion over religious expression in the nation's public schools. School administrators use these federal guidelines to direct their responses to religious expression in the schools.

The Equal Access Act

The presidential guidelines are informed by and based on the Equal Access Act. The Equal Access Act, which passed in 1984, ensures that student religious activities are afforded the same access to public school facilities as student secular activities. The Equal Access Act states that schools are required to treat all of their student-led non-curriculum clubs, including religious groups, equally. Student religious groups at public secondary schools have the same right of access to school facilities as all other comparable student groups. The Act protects prayer and worship during lunch-time and recess and guarantees equal access to means of publicizing meetings such as the announcement system, school periodicals, and bulletin board space (Riley, 1998). The guidelines cover the following topics:

• Student prayer and religious discussion: The guidelines state that students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity.

• Graduation prayer and baccalaureates: The guidelines state that school officials may not mandate or organize prayer at graduation nor organize religious baccalaureate ceremonies.

• Official neutrality regarding religious activity: The guidelines state that teachers and school administrators are representatives of the state and are prohibited by the establishment clause from soliciting or encouraging religious activity and from participating in religious activity with students.

• Teaching about religion: The guidelines state that public schools may not provide religious instruction but they may teach about religion. Examples of permissible religious studies include the history of religion, comparative religion, the Bible-as-literature, and the role of religion in the history of the United States.

• Student assignments: The guidelines state that students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of religious discrimination.

• Religious literature: The guidelines state that students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities.

• Religious excusals: The guidelines state that schools enjoy discretion to excuse individual students from lessons that are objectionable to the student or the students' parents on religious grounds.

• Released time: The guidelines state that schools have the discretion to dismiss students to off-premises religious instruction.

• Teaching values: The guidelines state that schools may play an active role with respect to teaching civic values and virtue and the moral code that holds the community together.

• Student garb: The guidelines state that schools enjoy substantial discretion in adopting policies relating to student dress and school uniforms (Riley, 1998).

The Presidential Guidelines on Religion in the Public Schools were updated in 2001. Religious groups continue to lobby the federal government for more opportunities for prayer and religion in the schools. Negotiating constitutionally protected prayer in public schools is an ongoing process. Due to the contentious issue of religious expression in the public schools, Section 9524 of the Elementary and Secondary Education Act (ESEA) of 1965, requires the Secretary of Education to issue guidance on constitutionally protected prayer in public elementary and secondary schools. Education law requires local school districts to certify in writing to their state educational agency (SEA) that the local district has no policy that prevents constitutionally protected prayer in public schools as described in the presidential guidelines. Ultimately, the relationship between religion and public school is governed by the Constitution but overseen and mediated by the U.S. Department of Education.

Conclusion

While the First Amendment prohibits Congress from making laws that inhibit freedom of expression, speech, and religion, the population, as a whole, does not share all the same values. Constitutional challenge and tension arise when stakeholders hold competing values. The process of defending the First Amendment rights of students in the public schools is an ongoing process undertaken by legal organizations, families, and students themselves. At the beginning of the twenty-first century, defending freedom of speech and expression in the public schools is growing increasingly important and difficult as a result of technology, knowledge-sharing, globalization, and heightened student violence (Martinson, 2000).

Terms & Concepts

American Civil Liberties Union: A legal organization, established in 1920, dedicated to protecting civil liberties such as first amendment rights, equal protection under the law, right to due process, and right to privacy.

Bill of Rights: The first ten amendments to the U.S. Constitution.

Equal Access Act: An act, passed in 1984, which ensures that student religious activities are accorded the same access to public school facilities as are student secular activities.

Establishment Clause: The portion of the First Amendment that reads, "Congress shall make no law respecting an establishment of religion."

First Amendment: An amendment to the Constitution that states that the government and Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Free Exercise Clause: First Amendment provision that prohibits the government from interfering with the practice of religion.

Freedom of Expression: A person's right to say or publish what he or she believes.

Libel: The publication of false statements with the potential to damage someone's reputation.

Slander: Spoken defamation of someone's reputation.

Supreme Court: The highest federal court in the United States.

Symbolic Clothing: Clothing that represents political, social, or religious identity.

Symbolic Speech: A form of nonverbal communication.

Bibliography

Bowman, D. (2003). Principals walk fine line on free speech. Education Week, 22 , 1. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9597191&site=ehost-live

Baylis-Heerschop, C. (2006). Prayer and the bible in schools. History of American education web project. Retrieved November 2, 2007, from http://www.ux1.eiu.edu/%7Ecfrnb/prayer.html

Corngold, J. (2006). A paradigm of an intractable dilemma. Philosophy of Education Yearbook, 115-118. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=24627787&site=ehost-live

District wields inappropriate editorial control over newspaper. (2012). Pro Principal (LRP Publications), 7, 7-8. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=71821540&site=ehost-live

Elementary and secondary education. (2013). Journal of Law & Education, 42, 713-729. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=90540781&site=ehost-live

Freedom of expression. (1997). ACLU Position Paper. American Civil Liberties Union. Retrieved November 2, 2007, from http://www.aclu.org/freespeech/gen/11178pub19970102.html

Gereluk, D. (2006). Why can't I wear this?! Banning symbolic clothing in schools. Philosophy of Education Society Yearbook, 106-114. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=24627786&site=ehost-live

Guidance on constitutionally protected prayer in public elementary and secondary schools. (2003). U.S. Department of Education. Retrieved November 2, 2007, from http://www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

Lunenburg, F.C. (2011). Do constitutional rights to freedom of speech, press, and assembly extend to students in school?. FOCUS on Colleges, Universities & Schools, 6, 1-5. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=69712960&site=ehost-live

Martinson, D. (2000). A school responds to controversial student speech: Serious questions in light of Columbine. Clearing House, 73, 145. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=2681678&site=ehost-live

Paxton, M. & Dickson, T. (2000). State free expression laws and scholastic press censorship. Journalism & Mass Communication Educator, 55 , 50-60.

Ratliff, R. (1978). Schools, courts, and student's freedom of expression. Educational Leadership, 35 , 634. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=7730642&site=ehost-live

Riley, R. (1998). Secretary of Education's statement on religious expression. U.S. Department of Education. Retrieved November 2, 2007, from http://www.ed.gov/Speeches/08-1995/religion.html

Sass, E. (2007). American educational history: a hypertext timeline. Retrieved November 2, 2007, from http://www.cloudnet.com/~edrbsass/educationhistorytimeline.html

Schools have legal right to bar Bible stories. (1999). School Law News, 27 , 1-2. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=6905002&site=ehost-live

Simpson, M. (2007). What's disruptive? NEA Today, 25 , 23-23. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=23623400&site=ehost-live

Student freedom in the wake of Hazelwood and Bethel. (1992). The Clearing House, 65 , 269-273.

3d Circuit rules for student in Internet free speech case. (2011). School Law News (LRP Publications), 39, 6. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=65991477&site=ehost-live

Trotter, A. (2006). Student speech on the docket? Education Week, 26 , 23-23. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=23289094&site=ehost-live

Suggested Reading

Holding, R. (2007). Speaking up for themselves. Time, 169 , 65-67. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=25054919&site=ehost-live

Kohl, H. (1991). The politically correct bypass: multiculturalism and the public schools. Social Policy, 22 , 33-40. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9110210742&site=ehost-live

Samuels, C. (2006). Guidelines urge a dialogue on gay issues in schools. Education Week, 25 , 5-14. Retrieved November 2, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=20242516&site=ehost-live