As any conservative columnist, billionaire Redditor, or smart-alec 7th grader getting sent out of social studies class knows, it's easy enough to cry "First Amendment foul!" any time a governmental actor puts a limit on someone's communications.
Being right about such objections, however, takes a bit more legal savvy. Over the last century, the Supreme Court has made plain that there are numerous exceptions to free speech — though the courts' logic on when they apply is complicated, perhaps even inconsistent.
As the school year came to a close recently, public high schools in Illinois and North Carolina curtailed a kind of student speech in similar ways: by recalling and reprinting yearbooks that included photos the administration determined could be seen as racist or hateful.
This season's yearbook for Oak Park and River Forest High School near Chicago contained 18 photos of students making the "OK" sign with thumb and index finger touching — a symbol that has come to be associated with white nationalism during the Trump era. (The district is spending $53,794 to reprint the yearbooks.) In North Carolina, Thomasville High School realized that the cover of its 2018–19 yearbook included a throwback picture from 1968 featuring a Confederate flag. (Thomasville is also reprinting its yearbooks.)
As was probably inevitable, the Oak Park reprinting decision precipitated a heated First Amendment debate in the comments section of a local Illinois news site. There, a robust commentariat cited Supreme Court precedents and disagreed about whether the recalling and reprinting of yearbooks for their content constitutes a First Amendment violation.
So who's right? Is student speech protected? As with so many legal questions ... it depends.
The most iconic student free speech case, Tinker v. Des Moines, was decided in 1969, in the heat of the anti-war movement. The four adolescent children of Des Moines peace activist Lorena Tinker and a family friend all made plans to attend school wearing black armbands in protest of, as the Supreme Court later put it, "this Nation's part in the conflagration in Vietnam."
The school district learned of their aesthetic plan, and rapidly whipped up a new school policy banning armbands. When the children went through with their armband protest undeterred by the district's threat, those in high school and junior high were suspended. With the help of the American Civil Liberties Union, they sued — citing a First Amendment violation.
The Supreme Court agreed with the children, declaring that First Amendment rights are not "shed ... at the schoolhouse gate," even for minors. The court ruled that unpopular or discomfiting speech — especially political speech — cannot be censored unless it will "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."
"Material and substantial disruption" is a pretty high bar for censorship. But whether the yearbook cases would meet it turns out to mostly be a moot point, because, since Tinker, the high court has continually clarified its position on student speech, adding significant exceptions where schools can curtail it.
"The court itself is a is a bit inconsistent," says Derek W. Black, a law professor at the University of South Carolina. "While it's not unusual for the court to announce a broad standard, and then begin to chip it away over time," — due to a different set of specific facts — "part of that chipping away is probably the result of a more conservative court."
Charles Russo, an education law professor at the University of Dayton, says that the protections of progressive protest speech outlined by the court in Tinker were partially a reflection of the larger political atmosphere of radical upheaval in the late '60s. However, he says, "The law is pretty much a matter of whose fannies are sitting in those nine seats." And by the '80s, when the subsequent student speech cases were decided, those "fannies" were largely Republican-appointed.
The next student speech case, Bethel School District v. Fraser, ruled that a student council campaign speech filled with sexually suggestive double entendres was not protected speech. In 1983, Matthew Fraser gave a speech endorsing his friend for student body vice president of their Bethel, Washington, high school.
"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," the speech began. "Jeff is a man who will go to the very end — even the climax, for each and every one of you." Et cetera.
For his display of juvenile creativity, Fraser was suspended and prohibited from speaking at graduation. When he sued, the Supreme Court — with two President Ronald Reagan-appointed justices voting in the majority — ruled 5–4 that his punishment was not a violation of the First Amendment, and that sexually vulgar speech qualified as substantial and material disruption, and thus could be banned in schools.
Not quite two years later, the Supreme Court — now with three Reagan-appointed justices voting in a 5–4 majority — returned to the question of student speech in Hazelwood v. Kuhlmeier, adding far more substantial restrictions to the First Amendment and setting a precedent whereby, in most cases, yearbooks are now treated as school speech, not student speech. Since Hazelwood, "the courts are going to say, if it's subsidized by the school, they're going to have greater authority," Russo says.
Hazelwood involved the censorship of a student newspaper, produced as part of journalism class in a St. Louis-area high school. Two students had each written about a controversial subject for the May of 1983 edition. One of the articles interviewed students who had dealt with teen pregnancy. Another focused on the experience of going through a parental divorce. When the faculty adviser submitted the proofs to the principal before publication, the principal blocked the publication of the pieces about divorce and pregnancy and published a much shorter May edition of the paper. In response, the two reporters and the paper's editor sued under the First Amendment.
The Supreme Court, now with the famously conservative Antonin Scalia added to the bench, ruled in favor of the school. "The Hazelwood case stands for the proposition that when a student publication — like a newspaper or yearbook — operates under the editorial control of the school, then teachers and school administrators can make content decisions that align with their educational goals," says Leonard Niehoff, a law professor at the University of Michigan.
The decision is double-sided, however. If the publication does not operate under the editorial control of the school — if, as the Court put it, "school authorities have, by policy or by practice, opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations" — then, absent a risk of substantial disruption, any form of censorship by the school would be a First Amendment violation.
Publications that aren't under a school's control are rarely allowed to exist in K-12 schools, but something like a law review at a public university would almost certainly qualify for "public forum" speech protections. With high school yearbooks and newspapers, thanks to Hazelwood, "even if the students produce it, it's generally under the auspices of the school," Black says.
And if it's under the auspices of the school, then, according to the Court in Hazelwood, it can censor speech for any "legitimate pedagogical concerns." This is why, for example, "a student does not have a First Amendment right to answer an exam in a biology class by discussing South Park or, for that matter, Elizabethan poetry," Niehoff says.
In Hazelwood, the court paid close attention to the school's reasons for censoring the articles. For the divorce article, an interviewed student portrayed her father in a poor light, but the article had not given him the chance to respond. Thus, the court saw the censorship as defensible on the grounds of teaching journalism ethics — a legitimate pedagogical concern of the journalism class that produced the paper, Russo says. However, Black finds the court's discussion of journalism ethics a little suspicious, especially with regard to the teenage pregnancy article. "I think there was a little bit of morality police going on there," he says.
Still, legitimate pedagogical purposes need not be clearly connected to textbook curriculum — and they can get pretty close to morality policing. A school's mission "could be to promote a drug free lifestyle, health, good civic values, and maybe to delay pregnancy," Black says. "I think the Court has given schools a little bit of opportunity to abuse that sort of civic values argument."
Since public colleges usually have very different pedagogical purposes and pre-established policies than high schools, the bar for curtailing speech is often higher. "Colleges still retain considerable control over speech that is curricular in nature," Niehoff says. "But they also tend to grant students much greater independence because of their age and maturity."
For example, in 1972, the Supreme Court ruled that a state college in Connecticut could not bar the recognition of the local chapter of Students for a Democratic Society — known for its disruptive tactics in support of leftist causes — based on speculative fear of disruption. Additionally, although the Supreme Court has ruled against government-imposed prayer in public schools, the 6th and 7th Circuit Courts of Appeals have ruled that it is constitutional to feature prayer at college graduations, because the students and university employees are old enough not to mistake its presence as the establishment of religion.
In the face of Hazelwood's speech curtailment, at least 14 states have adopted their own laws adding additional protections for student speech that go beyond what the Supreme Court has determined the First Amendment requires. Many of the laws are based on the Tinker rationale — that non-disruptive student speech is protected by the First Amendment — without the Hazelwood exceptions allowing censoring for legitimate pedagogical concerns. States with such laws include California, Washington, Arkansas, Iowa, Colorado, and ... Illinois.
If someone were to bring a state lawsuit under Illinois' Speech Rights of Student Journalists Act, the case would come down to the question of whether yearbook editors count as student journalists. "If we're talking about a student newspaper, a student would have an easy win there," Black says. "There's an argument to be made that yearbooks are not journalism, and that this law does not protect them. However, the fact that the law mentions photographs makes me think that this is an expansive protection, not just limited to written pieces of news and opinion."
Of course, that decision might also depend on the fannies sitting on the Illinois court.
This story originally appeared as Are racist yearbook photos protected student speech? on Pacific Standard, an editorial partner site. Subscribe to the magazine's newsletter and follow Pacific Standard on Twitter to support journalism in the public interest.