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Speech and Speech Codes in High Schools and Public UniversitiesWhat is free speech? Is speech ever truly free in an academic setting? Does“freedom of speech” change depending on whether it refers to high school students,college students, and college professors? Are speech codes at public universities a goodidea, and if so, what should they say? These are the questions underlying this paper. Acloser look at US Supreme Court decisions related to free speech in academic settingsreveals that the meaning of free speech changes dramatically depending on whether it isapplied to high school students or college students. The Supreme Court promoted thefree speech rights of high school students in West Virginia State Board of Education v.Barnette (1943) and affirmed these rights in Tinker v. Des Moines School District (1969), but it restricted these rights in Hazelwood School District v. Kuhlmeier (1988). TheSupreme Court and the Appellate Courts have consistently upheld the free speech rightsof college students and professors in cases such as Antonelli v. Hammond (1970), Papishv. University of Missouri (1973), Stanley v. Magrath (1983), and Hardy v. JeffersonCommunity College (2001). In an effort to understand the intricacies of speech rights inacademic settings, I read the individual Supreme Court opinions issued in these cases aswell as commentary regarding the contemporary effects of these rulings. In an effort to better understand why universities enact speech codes and whether the codes are legal, Iread

F.I.R.E.’s Guide to Free Speech on Campus

by David A. French, “Freedom of Expression and Public Morality” by Walter Berns, “There’s No Such Thing as FreeSpeech and It’s a Good Thing, Too” by Stanley Fish, “Ban It! The Initial Arguments for Speech Codes” by Timothy Shiell, and “There’s Such a Thing as Free Speech and It’s aGood Thing Too” by Stephen Smith. I also looked at the speech codes of various public1

and private universities, including Michigan University, Haverford College, andSwarthmore College. First, I will examine the free speech rights of high school students,college students, and college professors, and the limits of those rights; then I willinvestigate the overt and covert rationales for speech codes and the characteristics thatdetermine whether a speech code is legal or illegal; and finally, I will review the ethicaland practical arguments for and against speech codes and make suggestions as to howcolleges and high schools can implement sane speech policies. What I have found is that,so long as speech is not unduly disruptive, high school students, college students, andcollege professors alike have a right to say what they believe even if others consider their speech to be offensive. Speech codes in high schools and public universities that try torestrict speech on the grounds that it may offend others are unconstitutional andimpractical. The best speech policies are narrowly constructed to encourage toleranceand respect in the academic community while affirming a commitment to academicfreedom in ideas, art, and political expression.

PART 1: Speech Rights and Limitations in Academic Settings

High school students have constitutionally protected speech rights. In WestVirginia State Board of Education v. Barnette (1943), the Supreme Court ruled thatelementary and high-school students have a right not to salute the American flag and notto say the pledge of allegiance. The precedent established by that ruling is that schoolscannot compel the speech of students. In Tinker v. Des Moines School District (1969),the Supreme Court ruled that elementary and high-school students have a right to peacefully protest in school with armbands, leaflets, polls, petitions, underground2

newspapers, and rallies. The majority opinion in that case states, “It can hardly be arguedthat either students or teacher shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines School District, 2). The precedent established by that ruling is that high schools cannot prohibit students fromexpressing opinions unless those opinions create a severe disturbance in the school or hurt the rights of other students. As the Court wrote, “A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interferencewith school discipline or the rights of others, is not permissible under the First andFourteenth Amendments” (Tinker v. Des Moines School District, 1). The court thusimplied that the speech of elementary and high-school students can be restricted if it isdisruptive.The speech rights of high school students are hence limited in cases where thespeech is disruptive. In Hazelwood School District v. Kuhlmeier (1988), the SupremeCourt ruled that schools could censor high-school newspapers. In its majority opinion theCourt wrote, “First Amendment rights of students in the public schools are notautomatically coextensive with the rights of adults in other settings, and must be appliedin light of the special characteristics of the school environment. A school need nottolerate student speech that is inconsistent with its basic educational mission, even thoughthe government could not censor similar speech outside the school” (Hazelwood SchoolDistrict v. Kuhlmeier, 1). In that case, the Court made clear that the speech rights of adults are greater than those of minors. The court affirmed that high schools have a rightto prior restraint, which means administrators can view high school newspapers beforethey are published, though administrators cannot censor the newspaper unless it uses3