Case: 12-60264
Document: 00513162565
Page: 14
Date Filed: 08/20/2015
No. 12-60264
(13) the school-district’s discipline policy; (14) the school-board attorney’s letter
to Bell’s mother informing her of the school-board’s determination; and (15) the
transcript of the preliminary-injunction hearing.
A.
Students qua students do not forfeit their First Amendment rights to
freedom of speech and expression.
Tinker, 393 U.S. at 506, 511 (“School
officials do not possess absolute authority over their students . . . . In the
absence of a specific showing of constitutionally valid reasons to regulate their
speech, students are entitled to freedom of expression of their views.”). On the
other hand, the First Amendment does not provide students absolute rights to
such freedoms, and those rights must be tempered in the light of a school
official’s duty to, inter alia, “teach[] students the boundaries of socially
appropriate behavior”, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681
(1986), and “protect those entrusted to their care”, Morse v. Frederick, 551 U.S.
393, 408 (2007). As Justice Oliver Wendell Holmes, Jr., wrote nearly a century
ago: “[T]he character of every act depends upon the circumstances in which it
is done. The most stringent protection of free speech would not protect a man
in falsely shouting fire in a theatre and causing a panic.” Schenck v. United
States, 249 U.S. 47, 52 (1919) (citation omitted).
Therefore, because “the
constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings”, Fraser, 478 U.S. at 682,
certain speech, which would be protected in other settings, might not be
afforded First Amendment protection in the school setting.
Balancing these competing interests, Tinker provided in 1969 the
standard for evaluating whether the First Amendment protects a student’s
speech. There, the Court considered the suspension of students for wearing
black armbands in protest against the Vietnam War. Tinker, 393 U.S. at 505–
14
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