Discussion drawn from "Reversing the Tide: Restoring First Amendment Ideals in America's Schools through Legislative Protections for Journalism Students and Advisors" by Snyder
In the article "Reversing the Tide," Snyder examines how First Amendment protections for students and teachers first developed--then later eroded, depicts the considerable negative impact on school community members, and proposes a legislative solution. She builds her argument with a number of disturbing court cases and examples of student censorship, some of the most important of which I will continue to discuss here.
The Most Concerning Cases Approached by Snyder
Bethel School District No. 403 v. Fraser - "Supreme Court made clear that all First Amendment protections that extend to adults do not necessarily extend to students..."
The first case to make an exception to Tinker v. Des Moines, Bethel contradicted the opinion set forth that stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Although Bethel only applies to lewd or sexually graphic speech, it kicked off a wave of other exceptions to Tinker that have almost taken away the landmark case's protection of students entirely.
Hazelwood School District v. Kuhlmeier - "A school official could censor student speech if the decision to do so was 'reasonably related to legitimate pedagogical concerns.'"
Hazelwood stands out as one of the most disappointing and disturbing cases involving administrative censorship of student publications. because it established a much more deferential standard in the broad requirement that administrators need only prove "legitimate pedagogical concerns," instead of "substantially or materially" disrupting the school environment, to substantially restrict student journalists. Since the conclusion of this case, many officials have gone overboard in their censorship of school publications, citing this case that may or may not apply, with many students and advisers unable or uneducated enough to fight back.
Pickering-Connick Test - "By limiting teacher speech rights to only issues related to matters of public concern--and even then, applying a balancing test to determine if the teacher's rights outweigh those of the school as a public entity--the Pickering-Connick test is a major step back from Tinker."
Combining the precedents set by Pickering v. Board of Township High School and Connick v. Myers, this test significantly restricts advisers' rights, not just students', by insisting that government employees' speech can ONLY be protected in issues related to public concern that simultaneously outweigh the government's (or school's) interests. If teachers do not meet these standards, their speech is not protected, regardless of whether or not it substantially or materially disrupts the school environment. In my personal opinion, it places teachers' duties as employees way to far over their role as members of their communities, reducing them to their jobs instead of their entire humanity.
Garcetti v. Ceballos - "Employees have no First Amendment protection when their speech is 'pursuant to their official duties'...they are speaking on behalf of the employer, and the employer must be able to control that speech in order to 'manage their operations' and ensure 'the efficient provision of public service.'"
This is perhaps one of the most disturbing conclusions of any of the cases Snyder discusses, in that government employees are stripped of ALL First Amendment protection entirely "when their speech is pursuant to their official duties," meaning that basically nothing a teacher says during a regular school day is afforded protection. Again, teachers now lose their constitutional rights at the schoolhouse gate. It is shocking how contrary this decision runs to the Tinker case, yet another example of the decline of First Amendment rights in schools.
Weintraub v. Board of Education - "Garcetti is proving to be an almost insurmountable obstacle for teachers wishing to assert their free speech rights in the school."
Weintraub stands out as a later case that shows the terrifying effects of the Garcetti case, as a teacher was terminated for "filing a grievance with his union challenging the school administration's failure to discipline a student who repeatedly threw books at him in class." Despite the fact that the teacher's safety and wellbeing were at stake, the court determined that he still had no First Amendment protections. In the dissent, it was argued that this interpretation of Garcetti "leaves teachers unprotected in almost every situation," which seems to be the case thus far.
Dean v. Utica Community Schools - "What this case also shows is schools' willingness to turn to Hazelwood as an excuse to censor speech indiscriminately..."
Although a student reporter came out on top in Dean, her experience with administration censoring her for a difference of opinion shows how threatened student speech is under the Hazelwood case, and how far they may have to go to have their First Amendment rights returned to them. Dean did everything a good journalist should, and acted as reasonably and objectively as could possibly be expected, yet was still censored and forced to go to court. Even when students do everything right, they're still punished under Hazelwood.
Implications for Student Publications (according to Snyder)
1) "The actions of school officials serve to chill future speech by causing students and advisors to shy away from sensitive topics to avoid confrontation."
2) "Administrators' actions send the opposite message to the student population than what society holds by teaching students that the protections afforded under the First Amendment are not strong."
3) "Administrative oversight of student newspapers, and the chilling effect it may produce, can lead to misconceptions in the school community about the realities of school life."
Implications for Entire Schools (according to Snyder)
1) "A distortion on the 'marketplace of ideas' within the school environment"
2) "an impairment in the development or students' understanding and acceptance of differing ideas"
3) "a misunderstanding of the First Amendment as a core value in American society"
Conclusion
Student and adviser rights have been stripped away again and again over the past several decades, with horrifically detrimental effects not only on their experience, but the education of entire student bodies and whole generations. Snyder suggests a legislative solution to the problem, to restore First Amendment rights as provided by Tinker, but the cases above still show a very disturbing pattern that should be recognized and addressed. Courts have created far too many loopholes in the law to allow for considerable censorship that needs to end, for the sake of American society.
The Most Concerning Cases Approached by Snyder
Bethel School District No. 403 v. Fraser - "Supreme Court made clear that all First Amendment protections that extend to adults do not necessarily extend to students..."
The first case to make an exception to Tinker v. Des Moines, Bethel contradicted the opinion set forth that stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Although Bethel only applies to lewd or sexually graphic speech, it kicked off a wave of other exceptions to Tinker that have almost taken away the landmark case's protection of students entirely.
Hazelwood School District v. Kuhlmeier - "A school official could censor student speech if the decision to do so was 'reasonably related to legitimate pedagogical concerns.'"
Hazelwood stands out as one of the most disappointing and disturbing cases involving administrative censorship of student publications. because it established a much more deferential standard in the broad requirement that administrators need only prove "legitimate pedagogical concerns," instead of "substantially or materially" disrupting the school environment, to substantially restrict student journalists. Since the conclusion of this case, many officials have gone overboard in their censorship of school publications, citing this case that may or may not apply, with many students and advisers unable or uneducated enough to fight back.
Pickering-Connick Test - "By limiting teacher speech rights to only issues related to matters of public concern--and even then, applying a balancing test to determine if the teacher's rights outweigh those of the school as a public entity--the Pickering-Connick test is a major step back from Tinker."
Combining the precedents set by Pickering v. Board of Township High School and Connick v. Myers, this test significantly restricts advisers' rights, not just students', by insisting that government employees' speech can ONLY be protected in issues related to public concern that simultaneously outweigh the government's (or school's) interests. If teachers do not meet these standards, their speech is not protected, regardless of whether or not it substantially or materially disrupts the school environment. In my personal opinion, it places teachers' duties as employees way to far over their role as members of their communities, reducing them to their jobs instead of their entire humanity.
Garcetti v. Ceballos - "Employees have no First Amendment protection when their speech is 'pursuant to their official duties'...they are speaking on behalf of the employer, and the employer must be able to control that speech in order to 'manage their operations' and ensure 'the efficient provision of public service.'"
This is perhaps one of the most disturbing conclusions of any of the cases Snyder discusses, in that government employees are stripped of ALL First Amendment protection entirely "when their speech is pursuant to their official duties," meaning that basically nothing a teacher says during a regular school day is afforded protection. Again, teachers now lose their constitutional rights at the schoolhouse gate. It is shocking how contrary this decision runs to the Tinker case, yet another example of the decline of First Amendment rights in schools.
Weintraub v. Board of Education - "Garcetti is proving to be an almost insurmountable obstacle for teachers wishing to assert their free speech rights in the school."
Weintraub stands out as a later case that shows the terrifying effects of the Garcetti case, as a teacher was terminated for "filing a grievance with his union challenging the school administration's failure to discipline a student who repeatedly threw books at him in class." Despite the fact that the teacher's safety and wellbeing were at stake, the court determined that he still had no First Amendment protections. In the dissent, it was argued that this interpretation of Garcetti "leaves teachers unprotected in almost every situation," which seems to be the case thus far.
Dean v. Utica Community Schools - "What this case also shows is schools' willingness to turn to Hazelwood as an excuse to censor speech indiscriminately..."
Although a student reporter came out on top in Dean, her experience with administration censoring her for a difference of opinion shows how threatened student speech is under the Hazelwood case, and how far they may have to go to have their First Amendment rights returned to them. Dean did everything a good journalist should, and acted as reasonably and objectively as could possibly be expected, yet was still censored and forced to go to court. Even when students do everything right, they're still punished under Hazelwood.
Implications for Student Publications (according to Snyder)
1) "The actions of school officials serve to chill future speech by causing students and advisors to shy away from sensitive topics to avoid confrontation."
2) "Administrators' actions send the opposite message to the student population than what society holds by teaching students that the protections afforded under the First Amendment are not strong."
3) "Administrative oversight of student newspapers, and the chilling effect it may produce, can lead to misconceptions in the school community about the realities of school life."
Implications for Entire Schools (according to Snyder)
1) "A distortion on the 'marketplace of ideas' within the school environment"
2) "an impairment in the development or students' understanding and acceptance of differing ideas"
3) "a misunderstanding of the First Amendment as a core value in American society"
Conclusion
Student and adviser rights have been stripped away again and again over the past several decades, with horrifically detrimental effects not only on their experience, but the education of entire student bodies and whole generations. Snyder suggests a legislative solution to the problem, to restore First Amendment rights as provided by Tinker, but the cases above still show a very disturbing pattern that should be recognized and addressed. Courts have created far too many loopholes in the law to allow for considerable censorship that needs to end, for the sake of American society.