Beyond the Schoolhouse Gate: Free Speech and the Inculcation of Values

Six. Assisting Student Expression

Six Assisting Student Expression [Educators] do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so 104 Chapter Six long as their actions are reasonably related to legitimate pedagogical concerns. Hazelvvood School District v. Kuhlmeier Students frequently ask school officials for three kinds of assistance in promoting their ideas and beliefs: funding, faculty supervision, and access to school facilities. Fearing that such assistance associates the school system with controversial, distasteful student speech, school officials deny many of these requests. When they do grant them, administrators usually try to control the content and character ,of the student speech. Not surprisingly, their efforts occasionally fuel First Amendment litigation. The distinction between officials tolerating and assisting independent student speech is imprecise. Nonetheless, requiring school officials to tolerate Tinker armbands is different from requiring them to supervise or fund a "student coalition for peace."! As noted in a 1988 Supreme Court ruling, it is one thing for the courts to tell school officials that they must tolerate independent student expression , but quite another to say that they must provide affirmative assistance for student speech.2 Public Forums and Public Schools School policies and practices regarding association are hybrid restrictions , for they are typically content based and they apply only to particular locations or specific speakers.3 The courts have increasingly employed public forum analysis for association disputes.4 Unfortunately , this doctrinal approach has not produced a coherent framework for addressing the key issues and concerns raised in such litigation. On the one hand, federal courts suggest that public forum Assisting Student Expression 105 analysis is seductively straightforward. For example, in Gambino v. Fairfax City School Board, a high school principal censored an article entitled "Sexually Active Students Fail to Use Contraception."5 The federal district court reduced the case to one controlling issue: Is the school-sponsored student newspaper a protected public forum? If the answer is yes, then the article receives First Amendment protection . If the answer is no, then the actions of the school officials need only meet a "reasonableness standard."6 Here, the court found the paper to be a protected designated public forum.? Such straightforward framing of the issues is misleading, for public forum analysis actually entails four related inquiries.8 First, the court must decide if school officials have created a limited public forum. Next, if such a forum has been established, the court must determine if the First Amendment protects the proposed student activity. Third, if the activity is protected, the court must then apply strict scrutiny and determine if the state has a compelling interest and if its actions are closely tailored. Finally, if a limited public forum is not found, or if the proposed activity falls outside a limited forum's parameter, the issue before the court is merely whether the restrictions have a rational basis and do not constitute impermissible viewpoint discrimination. Not surprisingly, the courts struggle with each of these inquiries. To determine if a public forum has been created, the courts must discern the intent of school officials. Although examining the written record and past practices aids in this effort, school boards, like other deliberative bodies, often have multiple purposes and motivations for their actions. Because a public school often includes stadiums, gymnasiums, and auditoriums as well as classrooms, public forum analysis leads the courts into a judicial thicket. For example, in Student Coalition for Peace v. Lower Merion School District, a student organization sought to have a "peace exposition" on school grounds.9 They requested the use of the athletic stadium, the athletic field, the courtyard , and the boys' gymnasium. To determine the forum status of 106 Chapter Six the school, the federal district court examined the past activities permitted on each site.10 Such judicial gymnastics dispel the notion that public forum analysis entails a straightforward inquiry. Public forum analysis for associative disputes yields inconsistent rulings. For example, the courts have employed two conflicting standards for determining whether a school-sponsored student newspaper is a limited public forum. In Gambino v. Fairfax City School Board, the federal district court stated that, if the school-sponsored student newspaper was established as a vehicle for expression, it constituted a limited public forumY This standard ensures a particular outcome, since a student newspaper, like every newspaper, is a "vehicle for expression" and thus becomes a limited public forum. In...