Student Free Speech Rights
Guiles v. Marineau
The Appeal
Arguments in the appeal were made in October 2005 before a panel of three judges for the U.S. Court of Appeals for the Second Circuit. The arguments lasted about 45 minutes, with each side given the same amount of time for arguments and counter-arguments.
The Second Circuit judges issued their decision in August 2006. In their opinion, written by Judge Richard J. Cardamone, they disagreed with Judge Sessions’ ruling. They said that Zachary Guiles did have a right to wear the T-shirt, uncensored.
In making its ruling the judges acknowledged that student free speech rights are a very difficult area of the law. Nonetheless, they felt it was important that Zachary’s complaint be compared with other student free speech cases to see what rights he had, and what power the school might have to regulate student speech.
The judges described the three main Supreme Court decisions that “govern” the interpretation of student rights. They compared the interpretation Judge Sessions had made of these cases, with what they thought was proper. Their analysis differered from Judge Sessions’ analysis. Since a Circuit Court of Appeals is a higher court than a District Court, their ruling prevailed. Judge Sessions, in other words, was overruled.
Here are the three main court cases that govern student free speech rights. They are all cases that went to the U.S. Supreme Court. That means the decisions are “final” – the decisions cannot be appealed to any other court, and the decisions are considered part of the country’s “case law,” or law determined through cases brought before courts rather than laws made by legislatures or Congress.
- The first case is Tinker v. Des Moines, Iowa, School District. It is a case from 1969 involving students who wore black arm bands to school to protest the Vietnam War. The school told them they couldn’t do that. The students sued, and eventually won. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court said. However, the court said, there are limits to students’ rights. A student’s speech cannot “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”
- The second case is Bethel School District No. 403 v. Fraser. This case is from 1986. It involves a student who made a number of sexual suggestions in a speech he gave before a school assembly. He was disciplined. Saying he had been treated unfairly and his freedom of speech violated, he sued the school. After reviewing the case, the Supreme Court said that a student’s free speech rights do not extend to vulgar, lewd, indecent, or plainly offensive language. The school acted within its authority by disciplining him. The court said that the Tinker standard – a student’s rights can only be curtailed if the speech disrupts the school or collides with other students’ rights – didn’t apply because Fraser’s remarks were “unrelated to any political viewpoint.” Political speech, in other words, has greater protection than vulgar or offensive speech.
- The third case is Hazelwood School District v. Kuhlmeier, a case from 1988. School officials censored articles about teen pregnancy and divorce that students had published in a school newspaper. The Supreme Court ruled that school officials could practice such censorship “so long as their actions are reasonably related to legitimate pedagogical concerns.” Such censorship rights only applied to speech that was part of “school-sponsored” activities, however, not speech by students acting alone.
Reviewing this trilogy of student free speech cases, the Second Circuit judges determined that for speech that isn’t vulgar, and for speech that isn’t “school-sponsored,” the rule established in the Tinker case applies: “Schools may not regulate such student speech unless it would materially and substantially disrupt classwork and discipline in the schools.”
Judge Sessions had relied mainly on the Fraser decision to say it was OK for the Williamstown School to censor Zachary’s T-shirt. The Second Circuit judges disagreed. They said the drug images on Zachary’s T-shirt were not lewd, vulgar, indecent, or plainly offensive. The judges noted that if “plainly offensive” speech could be banned, then Tinker probably would not have been allowed to wear her black armband. Some people would certainly have been offended by her show of what they would consider a lack of patriotism and respect.
The judges further said that the interpretation of “plainly offensive” cannot “be so broad as to be triggered whenever a school decides a student’s expression conflicts with its ‘educational mission’ or claims a legitimate pedagogical concern.” They quoted a decision from another Circuit Court, which said that “All sorts of missions are undermined by legitimate and protected speech – a school’s … anti-alcohol mission would be undermined by a student e-mailing links to a medical study showing less heart disease among moderate drinkers than teetotalers….”
The judges also noted that the images on Zachary’s T-shirt were “an important part of the political message Guiles wished to convey, accentuating the anti-drug (and anti-Bush) message.” Censorship of this sort of speech can occur only if the wearing of the T-shirt were to cause “substantial disruption” in the school. Since Zachary had worn the shirt for more than a month before the school took any action, it was clear that no “substantial disruption” had occurred.
The judges were very careful to say that their decision applied only to the facts of Zachary’s case. They said they were not ruling “with respect to whether images of illegal drugs and alcohol on a T-shirt that promotes drug and alcohol use could be censored….”
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