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1. Students in the public schools do not "shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate." Tinker, supra, at 506 . They cannot be
punished merely for expressing their personal views on the school
premises — whether "in the cafeteria, or on the playing field, or on the
campus during the authorized hours," 393 U.S. at 512-513 — unless
school authorities have reason to believe that such expression will
"substantially interfere with the work of the school or impinge upon the
rights of other students." Id. at 509.
2. We have nonetheless recognized that the First Amendment rights
of students in the public schools "are not automatically coextensive
with the rights of adults in other settings," Bethel School District
No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and must be
"applied in light of the special characteristics of the school
environment." Tinker, supra, at 506; cf. New Jerseyv.
T.L.O., 469 U.S. 325, 341-343 (1985). A school need not
tolerate student speech that is inconsistent with its "basic educational
mission," Fraser, supra, at 685, even though the
government could not censor similar speech outside the school.
Accordingly, we held in Fraser that a student could be
disciplined for having delivered a speech that was "sexually explicit"
but not legally obscene at an official school assembly, because the
school was entitled to "disassociate itself" from the speech in a manner
[p*267] that would demonstrate to others that such vulgarity is "wholly
inconsistent with the ‘fundamental values’ of public school education."
478 U.S. at 685-686. We thus recognized that "[t]he determination
of what manner of speech in the classroom or in school assembly is
inappropriate properly rests with the school board,"id . At
683, rather than with the federal courts. It is in this context that
respondents’ First Amendment claims must be considered.
A
3. We deal first with the question whether Spectrum may
appropriately be characterized as a forum for public expression. The
public schools do not possess all of the attributes of streets, parks,
and other traditional public forums that "time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions." Hague v. CIO,307 U.S. 496,
515 (1939). Cf. Widmar v. Vincent, 454 U.S. 263, 267-268,
n. 5 (1981). Hence, school facilities may be deemed to be public forums
only if school authorities have "by policy or by practice" opened those
facilities "for indiscriminate use by the general public," Perry
Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 47
(1983), or by some segment of the public, such as student organizations.
Id. at 46, n. 7 (citing Widmar v. Vincent). If the facilities
have instead been reserved for other intended purposes, "communicative
or otherwise," then no public forum has been created, and school
officials may impose reasonable restrictions on the speech of students,
teachers, and other members of the school community. 460 U.S. at 46, n.
7.
4. The government does not create a public forum by inaction or
by permitting limited discourse, but only by intentionally opening a
nontraditional forum for public discourse. Cornelius v. NAACP Legal
Defense & Educational Fund, Inc., 473 U.S. 788, 802 (1985).
[p*268]. The policy of school officials toward Spectrum was reflected in
Hazelwood School Board Policy 348.51 and the Hazelwood East Curriculum
Guide. Board Policy 348.51 provided that school sponsored publications
are developed within the adopted curriculum and its educational
implications in regular classroom activities. App. 22. The Hazelwood
East Curriculum Guide described the Journalism II course as a
"laboratory situation in which the students publish the school newspaper
applying skills they have learned in Journalism I." Id. at 11.
The lessons that were to be learned from the Journalism II course,
according to the Curriculum Guide, included development of journalistic
skills under deadline pressure, "the legal, moral, and ethical
restrictions imposed upon journalists within the school community," and
"responsibility and acceptance of criticism for articles of opinion."
Ibid. Journalism II was taught by a faculty member during regular
class hours. Students received grades and academic credit for their
performance in the course.
5. School officials did not deviate in practice from their policy
that production of Spectrum was to be part of the educational
curriculum, and a "regular classroom activit[y]." The District Court
found that Robert Stergos, the journalism teacher during most of the
1982-1983 school year, "both had the authority to exercise, and in fact
exercised, a great deal of control over Spectrum." 607 F.Supp. at 1453.
For example, Stergos selected the editors of the newspaper, scheduled
publication dates, decided the number of pages for each issue, assigned
story ideas to class members, advised students on the development of
their stories, reviewed the use of quotations, edited stories, selected
and edited the letters to the editor, and dealt with the printing
company. Many of these decisions were made without consultation with the
Journalism II students. The District Court thus found it clear that Mr.
Stergos was the final authority with respect to almost every aspect of
the production and publication of Spectrum, including its content.
Moreover, after [p*269] each Spectrum issue had been finally approved by
Stergos or his successor, the issue still had to be reviewed by
Principal Reynolds prior to publication. Respondents’ assertion that
they had believed that they could publish ‘practically anything" in
Spectrum was therefore dismissed by the District Court as simply "not
credible." Id. at 1456. These factual findings are amply
supported by the record, and were not rejected as clearly erroneous by
the Court of Appeals.
6.
The evidence relied upon by the Court of Appeals in finding Spectrum to
be a public forum, see 795 F.2d at 1372-1373, is equivocal, at
best. For example, Board Policy 348.51, which stated in part that "[s]chool
sponsored student publications will not restrict free expression or
diverse viewpoints within the rules of responsible journalism," also
stated that such publications were "developed within the adopted
curriculum and its educational implications." App. 22. One might
reasonably infer from the full text of Policy 348.51 that school
officials retained ultimate control over what constituted "responsible
journalism" in a school-sponsored newspaper. Although the Statement of
Policy published in the September 14, 1982, issue of Spectrum declared
that "Spectrum, as a student-press publication, accepts all rights
implied by the First Amendment," this statement, understood in the
context of the paper’s role in the school’s curriculum, suggests, at
most, that the administration will not interfere with the students’
exercise of those First Amendment rights that attend the publication of
a school-sponsored newspaper. It does not reflect an intent to expand
those rights by converting a curricular newspaper into a public forum.
[n2] Finally, [p*270] that students were permitted to exercise some
authority over the contents of Spectrum was fully consistent with the
Curriculum Guide objective of teaching the Journalism II students
"leadership responsibilities as issue and page editors." App. 11. A
decision to teach leadership skills in the context of a classroom
activity hardly implies a decision to relinquish school control over
that activity. In sum, the evidence relied upon by the Court of Appeals
fails to demonstrate the "clear intent to create a public forum,"
Cornelius, 473 U.S. at 802, that existed in cases in which we
found public forums to have been created. See id. at 802-803
(citing Widmar v. Vincent, 454 U.S. at 267; Madison
School District v. Wisconsin Employment Relations Comm’n, 429 U.S.
167, 174, n. 6 (1976); Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 555 (1975)). School officials did not evince either "by
policy or by practice," Perry Education Assn., 460 U.S. at 47,
any intent to open the pages of Spectrum to "indiscriminate use," ibid.,
by its student reporters and editors, or by the student body generally.
Instead, they "reserve[d] the forum for its intended purpos[e]," id.
at 46, as a supervised learning experience for journalism students.
Accordingly, school officials were entitled to regulate the contents of
Spectrum in any reasonable manner. Ibid. It is this standard,
rather than our decision in Tinker, that governs this case.
B
7. The question whether the First Amendment requires a school to
tolerate particular student speech — the question that we addressed in
Tinker — is different from the question whether the First
Amendment requires a school affirmatively [p*271] to promote particular
student speech. The former question addresses educators’ ability to
silence a student’s personal expression that happens to occur on the
school premises. The latter question concerns educators’ authority over
school-sponsored publications, theatrical productions, and other
expressive activities that students, parents, and members of the public
might reasonably perceive to bear the imprimatur of the school. These
activities may fairly be characterized as part of the school curriculum,
whether or not they occur in a traditional classroom setting, so long as
they are supervised by faculty members and designed to impart particular
knowledge or skills to student participants and audiences. [n3]
8. Educators are entitled to exercise greater control over this
second form of student expression to assure that participants learn
whatever lessons the activity is designed to teach, that readers or
listeners are not exposed to material that may be inappropriate for
their level of maturity, and that the views of the individual speaker
are not erroneously attributed to the school. Hence, a school may, in
its capacity as publisher of a school newspaper or producer of a school
play, "disassociate itself," Fraser, 478 U.S. at 685, not
only from speech that would "substantially interfere with [its] work . .
. or impinge upon the rights of other students," Tinker, 393 U.S.
at 509, but also from speech that is, for example, ungrammatical,
poorly written, inadequately researched, biased or prejudiced, vulgar or
profane, or unsuitable for immature audiences. [n4] A school must be
able to set high standards for [p*272] the student speech that is
disseminated under its auspices — standards that may be higher than
those demanded by some newspaper publishers or theatrical producers in
the "real" world — and may refuse to disseminate student speech that
does not meet those standards. In addition, a school must be able to
take into account the emotional maturity of the intended audience in
determining whether to disseminate student speech on potentially
sensitive topics, which might range from the existence of Santa Claus in
an elementary school setting to the particulars of teenage sexual
activity in a high school setting. A school must also retain the
authority to refuse to sponsor student speech that might reasonably be
perceived to advocate drug or alcohol use, irresponsible sex, or conduct
otherwise inconsistent with "the shared values of a civilized social
order," Fraser, supra, at 683, or to associate the school
with any position other than neutrality on matters of political
controversy. Otherwise, the schools would be unduly constrained from
fulfilling their role as a principal instrument in awakening the child
to cultural values, in preparing him for later professional training,
and in helping him to adjust normally to his environment. |