Free expression in schools: new cases show administrators should study the Constitution

By Jason Hardy Mar 10, 2014, 7:50pm MDT

This year has seen federal courts rule several cases involving student expression at school, each favoring students. The cases coincide with the anniversary of a 1969 Supreme Court ruling, Tinker v. Des Moines, that recognized students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

A junior high school in Greensburg, Ind., unconstitutionally forced a male student to choose between playing basketball for the school and cutting his hair, according to a February ruling. The U.S. Court of Appeals for the 7th Circuit found that a hair-length policy that applies only to boys, and not to girls, is sex-based discrimination.

That isn’t per se unconstitutional — school policies that discriminate based on sex are permitted by the Equal Protection Clause of the 14th Amendment if reasonably related to legitimate pedagogical interests. In the Indiana case, the school’s stated intent was to project “a clean-cut image,” which the court found unconvincing.

The case was remanded to the federal court for the Southern District of Indiana to determine damages.

Earlier in February, the 9th Circuit Court of Appeals ruled that forcing students to wear school uniforms with a motto is a form of compelled speech. Since the free speech clause of the First Amendment protects “both the right to speak freely and the right to refrain from speaking,” uniforms with written speech face a higher burden than plain uniforms.

A second issue invokes the constitutional maxim that clothing is a form of speech. The uniform policy provides an exemption — students may wear national youth organization uniforms, like Scouts, when appropriate. Other clothing, such as uniforms for local youth groups, is always impermissible. The court reasoned that this may favor certain forms of speech over others, which is called content-based restrictions. If this is the case, strict scrutiny applies.

The appellate court remanded the case to the district court, which incorrectly applied intermediate scrutiny and dismissed the case “for failure to state a claim.”

A final First Amendment case was settled on Feb. 17 when the University of Alabama apologized for removing a student organization’s graphic anti-abortion display a few days before a free-speech permit expired, according to

On Monday, the U.S. Supreme Court declined to hear a school district’s appeal in a case involving students’ right to wear “I ♥ Boobies” breast-cancer-awareness bracelets, according to Reuters. The 3rd Circuit Court of Appeals ruled last year in favor of students Brianna Hawk and Kayla Martinez. The judges created a new rule for lewd speech in schools, ruling that plainly lewd speech can be banned, but if the speech is not plainly lewd and it addresses political or social issues it cannot be “categorically restricted.” In this case, the speech was not plainly lewd and commented on a social issue, and “I ♥ Boobies” is therefore constitutionally protected speech.

In the last major Supreme Court case on school speech, Morse v. Frederick,decided in 2007, a public high school student was suspended for displaying a banner reading “BONG HITS 4 JESUS,” which the court found can reasonably be interpreted as promoting illegal drug use.

Since the speech of students at public schools is not “automatically coextensive with the rights of adults in other settings,” and because schools have an important interest in deterring drug use by schoolchildren, it was reasonable for the principal to decide in real-time that the speech could be suppressed, the justices ruled.