Limiting the Tinker Doctrine

Pages 117-123

By Gerald Card

Title and CitationBethel School District No. 403 v. FraserSupreme Court of the United States 1986478 U.S. 675

FactsFraser gave this speech on Apr 26, 1983 at a high school assembly:

“I know a man who is firm-he’s firm in his pants, he’s firm in his shirt, his character is firm-but most….of all his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts-he drives hard, pushing and pushing until finally-he succeeds.”

FactsIt was a school sponsored programSpeech was predetermined inappropriate by 2 teachers who warned not to give it

He admitted to giving the speech and received 3 days suspension

His Father brought the action to Western District Court of Washington for violation of 1st amendment to free speech

FactsDistrict Court held that the school violated the 1st amendment Right to free speech

Schools disruptive rule was unconstitutionally vague

Student was banned from speaking at commencement and that was not a listed consequence-which violated 14 Amendment Due Process Clause

9th Circuit affirmed the District Court rulings

IssueWent to Supreme CourtTinker v. Des Moines Independent School District was a non-disruptive passive expression. It did not concern speech or actions that intrude on the work of the school or the rights of other students.

HoldingsRole and purpose of school is to instill fundamental values of habits and manners of civility.

There is a balance between tolerating political and religious views and consideration to the sensibilities of others and socially appropriate behavior.

Determination of improper manner of speech in a school rests with the school board

School Sponsored Expressive Activities

Pages 123-130

Title and CitationHazelwood School District v. Kuhlmeier

Supreme Court of United States 1988484 U.S. 260

Student Publications-sexually suggestive, advocating drug use, and libel.

FactsSchool newspaper was written by the Journalism II class.

Funded mostly by the school and partially from the sales of the paper

A school is a forum for public expression only if a policy or practice opens it for indiscriminate use by the general public

FactsSchool board policy 348.51 states:“school sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities.”

District Court determined the teacher had exercised the authority to control the paper within the rules of responsible journalism

IssuesEducators can exercise control over student expression to:Assure they learn the lessons the activity teaches

Audience is not exposed to material inappropriate to the maturity level

Views of speaker are not attributed to the school

Ungrammatical, poorly written, inadequately researched, biased, prejudiced, vulgar or profane, or unsuitable for immature audiences are grounds for not printing material.

HoldingsThe reversed the decision of the circuit court in favor of the school

Legal DoctrineVulgar, lewd, obscene, and offensive speech is governed by Frazer

School sponsored speech is governed by Hazelwood

Expression of social, political, and economic issues that may cause “material and substantial” disruption of the school is governed by Tinker

SignificanceMcCann v. Fort Zumwalt School District

50F.Supp.2d 918 (MO.1999)

Court upheld prohibiting a marching band from performing a song thought to promote illegal use of drugs

SignificanceBannon v. Palm Beach County School District387F. 3d 1208 (11th Cir.2004) cert denied,

546. U.S. 811 (2005)

Court stated murals by FCA occurred in context of a curricular activity and considered school sponsored. Use of explicit religious wording was unconstitutional.

SignificanceSan Diego Committee Against Registration and the Draft v. Governing Board of Grossmont Union High School District790 F.2d 1471 (9th Cir. 1986)Advertising in a school creates a limited public forum if opened to the public

Court ruled against school because school had allowed other elements of political speech

Planned Parenthood v. Clark County School District941 f.2d 817

Same Court 5 years laterRuled against Planned Parenthood because a non-public forum was established and the content would be controversial to the school mission

Yeo v. Town of Lexington131 F. 3d 241 (1st Cir. 1997), cert Denied524 U.S. 904 (1998)Student editors who had autonomy rejected an advertisement promoting sexual abstinence.

Court decided the decision was by students and not a state action.