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Markkula Center for Applied Ethics

How Free is a Student’s Freedom

Jenna Heise

Jenna Heise is the Character Education Intern at the Markkula Center for Applied Ethics. Views are her own.

When a person thinks about school, the Supreme Court is probably not the first thing that comes to mind.  However, schools and the legal system are tightly entwined. Court cases involving student behavior in schools have shaped what does and does not constitute free speech. Students have long advocated for their rights and engaged civically to make school an environment where they are free to express their opinions. Educators’ responses to student free speech can shape students’ school engagement and, potentially, their future civic engagement. 

Dress Code

One aspect of student free speech is, perhaps surprisingly, the school dress code. Schools institute dress codes to create an environment that encourages a sense of responsibility and community, to reduce pressure on students and families living in low socioeconomic status, and to minimize conflict and disturbance. These intentions sound reasonable; however, they may discriminate against certain student sub-groups. Some states have taken steps to advise districts and schools against discriminatory practices. For example, the California Department of Education guides schools to adopt “Nondiscriminatory gender segregated dress codes” which allow students “to dress in accordance with their gender identity.”  

When students speak in defense of their attire or write appeals as a mode of expression, they are expressing that the issue is larger than clothes and text. The larger issue is about students' constitutional rights.

This topic of student's freedom of expression is not new; in fact, groundbreaking work began in 1969 when students in Iowa wore black armbands in protest of the Vietnam War. The students received warning that they would be suspended from school if they went on with the protest. A member of the school staff told one of the students that he was "too young and immature to have too many views."1 The persisting students were suspended. The parents filed a lawsuit with the U.S. district court, which ruled in favor of the school. A U.S. Court of Appeals also sided with the school’s decision to restrict students’ free speech to maintain order and prevent conflict on campus.

However, the Supreme Court interpreted this case differently. The groundbreaking Tinker v. Des Moines Independent Community School District case sent a clear message that students can maintain their constitutional right to free speech when on school property.  To summarize the hearing, a student does not forfeit their constitutional rights at the school gate.  The Supreme Court noted that “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students.  Students in school, as well as out of school, are “persons” under our Constitution.  They are possessed of fundamental rights which the State must respect, just as they themselves must respect obligations to the State.”

Yet, Tinker has received criticism for its ambiguity, and more recently people are wondering if the landmark case still holds weight in today's legal system. Students defending their free speech and free expression have faced multiple defeats in the years since Tinker, and lower courts face a variety of new cases arguing for censorship.  

School-Subsidized Student Newspapers and Freedom of Press

One of the most publicized defeats students faced regarding the First Amendment is Hazelwood School District v. Kuhlmeier (1988). This case came to fruition after articles were redacted from the school newspaper, an act Kuhlmeier and other student journalists said violated their right to freedom of the press. The redacted articles were about parental divorce and teenage pregnancy, topics the student journalists recognized as relevant to their peers. School officials said the content was inappropriate for teen readers.  

The Supreme Court agreed that the school had the right to make this judgement call.  When the newspaper is part of an academic class or other school-based educational activity, the school is given editorial jurisdiction. The court decision has received both criticism and support, and some states have gone on to enact legislation making the court ruling inadmissible with the exception of press that includes libel or illegal content. Since the 1988 Supreme Court ruling, numerous debates over censorship of student articles in newspapers and news websites have taken place, including Omaha High School, NB (2001); Fauquier High School, VA (2015); Burlington High School, VT (2018); and, Elizabethtown Area High School, PA (2018).   

What Can Schools Do?

Tinker and Kuhlmeier are just two of the numerous Supreme Court cases impacting students in the public education systems. Schools should regularly revisit disciplinary policies from the perspective of students’ rights and implications for students’ character development and sense of belonging to the school community. Here are examples of questions that schools can ask:

  • To what extent are we educating students about their constitutional rights?
  • To what extent are we educating teachers, media advisers, and guidance counselors about students’ rights?
  • Which rights are we encouraging and which are we inhibiting?
  • What messages are we giving students through our school policies?
  • To what extent do we engage students in civil discourse about school policies?

To learn about students’ constitutional rights, please join us for a free presentation by Justin Driver, author of The Schoolhouse Gate: Public Education, The Supreme Court, and the Battle for the American Mind, which will be held at Santa Clara University on Wednesday, October 17, 2018 at noon. Click here to register to the event or go to

Character-Based Literacy subscribers can use the lesson plan for the book The Truth about Truman School by Dori Hillestad Butler to introduce the topic of free speech. 


1. Driver, J. (2018). The Schoolhouse Gate (p. 74). New York: Pantheon Books.

Oct 10, 2018

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