Communication Currents

Four students at a San Francisco area high school are sent home for wearing US flag t-shirts to school on Cinco de Mayo. A Connecticut student is barred from running for student office after she writes a blog calling school administrators who had postponed a student concert “douchebags.” The principal of a Kansas City area high school demands that a student send a letter of apology to governor Sam Brownback, after she tweets that “#heblowsalot.” While the Supreme Court established in 1969 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the precise limits of those rights are anything but clear. The one constant is that when cases such as these are adjudicated, the courts tend to interpret the speech activities of youth through a series of metaphors that highlight their materiality, while interpreting the same activities conducted by adults as expressive.

The Supreme Court has revisited the question of free speech in the public schools three times since its landmark 1969 ruling in Tinker v. Des Moines. Each time the majority has been unable to find suitable grounds for its ruling in existing precedents, and has instead crafted an entirely new legal test to limit the constitutional rights of youth. This uncertainty is problematic for students, school administrators, parents, and lawyers because even if existing precedents are clear, there is no way of knowing what exceptions will be carved out the next time a student advocate sits before the Court.

Or so it would seem. Beneath the seemingly haphazard array of limitations on the constitutional rights of youth, the Court has maintained a consistent yet flexible rhetorical framework. This framework was evident already in the 1969 case of Tinker v. Des Moines, when several students were suspended for wearing black armbands in protest of the Vietnam War. The Supreme Court was very deferential to the student advocates in this case, interpreting the protest as an expression of their opinions and sentiments on the issues of the day. This seemingly obvious interpretation, which explained the protest as a form of symbolic expression, is unusual when contrasted with later rulings. And even in 1969, the Court was unwilling to apply this idealistic terminology to youth broadly. Equally prevalent in its decision was a materialist terminology that explained the behaviors of student audiences as products of causality. The majority ruled that student advocacy was not protected if it resulted in a “material or substantial disruption” to education, and they determined that student advocates would be held responsible for all disruptions, even when those were instigated by other students in response to their speech. School administrators were called upon to predict the reactions of the student body to speech, and to censor any speech that might produce a chain of causation, however distant, ultimately resulting in disruption. 

In other words, the majority used a behavioralist terminology to interpret the actions of student audiences. Unlike the protest itself, these actions were not expressive of ideas; they were reactions or conditioned responses, predictable but not morally responsible. While Tinker is rightly celebrated as a victory for student rights, therefore, it simultaneously limited those rights severely. Such an extreme curtailment on free speech would be unthinkable, were it applied to adult speakers and audiences, because their behaviors are almost universally interpreted as products of meaningful choice.

The materialist framework, which explains speech acts not as symbolic expression but as unmindful conduct, would become typical of the Court’s later rulings. The next time the Court visited the question of free speech in the public schools was the 1984 case of Bethel v. Fraser. Matthew Fraser had been suspended after giving a student government speech that employed a heavy dose of sexual innuendo. While the Supreme Court found no evidence of a “material or substantial disruption,” and therefore could not apply the Tinker precedent, it was convinced that Fraser’s speech was outside the universe of ideal speech imagined by the Constitution. Instead of interpreting Fraser’s speech as symbolic expression, the majority described it as “conduct” and “deportment,” objects that fell securely within the province of public school administrators. And while the Court had previously distinguished between viewpoints and modes of expression (the former having far more constitutional protection than the latter) in this case they went a step further and described Fraser’s speech as lacking ideas entirely. As pure conduct, the speech could be restricted in any manner and for whatever reasons school administrators wished. As with the case of Tinker, Bethel relied on an interpretive framework somewhat inconsistent with that applied to adult speech. The Supreme Court has been far more willing to interpret lewd or vulgar speech, produced by adults, as expressive of ideas, values, or emotions, even when such interpretations require a degree of creativity.

 Only two years later the Supreme Court would face the question of student advocacy again, in the 1986 case of Hazelwood v. Kuhlmeier. The principal of Hazelwood East High School, Robert Reynolds, had removed two pages from the student newspaper containing articles dealing with divorce and teenage pregnancy. He claimed that the articles were too sensitive for the immature student audience. While there was no reason to suspect “material or substantial disruption,” and while the articles were quite clearly designed to express ideas about subjects of profound social concern, the Supreme Court again ruled in favor of the school district. They held that school sponsored forums such as student newspapers could be subject to editorial oversight for any “legitimate pedagogical concern.” Further, they determined that Reynolds’s concerns were legitimate because schools had to “shield younger students from exposure to unsuitable material.” 

Within the course of laying out this argument, the Court offered a third way of figuring materiality. Even if speech did not cause material disruption, and even if it was not communicated in a manner that violated the norms of ideal speech, it could still be censored if its audience was figured as incapable of reconciling the ideas expressed. In this case, the Court used metaphors of “exposure” and “shielding” to suggest that youth would be affected by these articles in a direct and immediate way that bypassed normal processes of cognition. The result of this framework was a complete loss of agency for student journalists, because their speech was reduced to a “topic,” and they could not appeal to the content of their articles as evidence of their merit.

Despite the variety of constitutional tests the Supreme Court has constructed to limit the rights of student advocates (the 2007 case of Morse v. Frederick created yet another), their rulings demonstrate a great deal of rhetorical consistency. Speech that is figured as expressive of ideas, and that is received by audiences figured as capable of processing those ideas, is protected. Speech that can be interpreted as instigating a chain of effects, or as devoid of signification, or as influencing its audience in an unmediated way, is not protected. Those who are committed to protecting the constitutional rights of youth must learn that identical or nearly identical speech acts can be framed as symbolic or not, meaningful or not, and morally responsible or not, and that seemingly insignificant rhetorical choices, made by school administrators, attorneys, or judges, can determine whether the Constitution truly rules within the gates of the US public school system.