This book is part of a larger school reform initiative—“First Amendment Schools: Educating for Freedom and Responsibility.” Sponsored by the Association for Supervision and Curriculum Development (ASCD) and the First Amendment Center, this program calls on all schools to reaffirm First Amendment principles and put them into action. A central goal of the initiative is to help schools become laboratories for democratic freedom—places where students learn how to exercise their rights with responsibility.

An important starting point for becoming a First Amendment School is to know how the principles of the First Amendment should be applied in a public school under current law.¹  This book provides a civic and legal framework for giving all members of the school community—students, parents, teachers, administrators, and community members—a real voice in shaping the life of the school.

About Specific Legal Questions

In this book, we offer a straightforward and concise synthesis of how the courts currently understand and apply the First Amendment in public education. Keep in mind, however, that the answers given here include general information on the subject of First Amendment expression and practice in schools. For answers to specific legal questions about an incident or issue in your school, consult your school board lawyer or another qualified, licensed attorney in your community.

This publication is designed to answer only the most frequently asked questions on how the courts interpret the First Amendment in schools—not all possible questions and answers about a large and complicated area of the law. School districts drafting policies in the areas discussed in this book will want to consult their state statutes and education codes for a fuller understanding of what the law does or does not permit under a properly crafted policy.

A Brief Introduction to the U.S. Court System

A brief description of the courts in the United States may be useful background for understanding the cases mentioned in this book.² 

U.S. courts can be divided into two groups: state and federal. Generally, federal courts hear claims based on alleged violations of federal statutes or the U.S. Constitution. State courts hear cases involving state statutes or common (court-made) law or a state's constitution. For example, a First Amendment claim charging public school officials with censorship is typically brought in federal court because the First Amendment is part of the U.S. Constitution. A lawsuit claiming that a principal has violated a state's student free-expression law will typically be brought in state court.

Federal and state courts are divided into trial courts, which hear the case initially, and one or more levels of appellate court. Although the specific names of state courts vary, all federal trial courts are called district courts. There are 94 district courts in the country, at least one in each state. No district overlaps two states. Each federal district court has jurisdiction to hear cases within its geographic area. Someone who loses a case can appeal from a federal court to a circuit court of appeals. There are 13 of these around the country—11 circuit courts covering different geographic boundaries (see Figure 1), a D.C. Circuit Court, and the U.S. Court of Appeals for the Federal Circuit. All but one have jurisdiction, or legal standing, over district courts within the geographic boundaries of their circuit.

Figure 1. Geographic Boundaries of the United States Courts of Appeals and United States District Courts

Not available for electronic dissemination.

There are no juries at the appeals court level—only judges. Usually, a panel of three judges will decide a case. A litigant who loses before a three-judge panel may petition for en banc, or full panel, review of the case. The number of judges who sit for an en banc review varies from state to state, although it is usually between 11 and 15.

Parties to a lawsuit decided by an en banc review in a federal court of appeals can ask the U.S. Supreme Court to review their case. However, the Supreme Court typically can choose the cases it wants to consider. If the Court does accept a case for review, it issues a writ of certiorari—a directive to the lower court to deliver the case for review.³  There is no appeal beyond the U.S. Supreme Court.

Decisions of a federal court of appeals must be followed by all the district courts located within that circuit. (For more information on the Federal Courts outreach contacts in your area, see Figure 2.) District courts outside that circuit, however, are not bound by such decisions. Further, one district court does not have to follow the rulings of any other district court. A court is bound only by the decisions of higher courts that have direct jurisdiction over it. This is the concept of precedent. Because the U.S. Supreme Court is the highest court in the country, all courts must follow its precedent. Note, however, that state courts do not have to follow the rulings of federal courts on matters solely based on state law, and vice versa. For example, although the U.S. Supreme Court significantly reduced the amount of First Amendment protection available to most high school journalists in the 1988 case of Hazelwood School District v. Kuhlmeier—a ruling based only on federal law—a state court may, nevertheless, find that high school journalists in its state remain protected by state law.

Figure 2. Contact Information for Federal Courts

National Contact  Rebecca J. Fanning  National Outreach & Public Education Manager  Administrative Office, U.S. Courts  One Columbus Circle, N. E.,  Suite 7-400  Washington, DC 20544  202-502-2611
First Circuit  Gary Wente  Circuit Executive/  Outreach Contact  U.S. District Court  One Courthouse Way  Boston, MA 02210-3002  617-748-9613	Second Circuit  Stephen Young  Outreach Contact  U.S. Court of Appeals  40 Centre Street, Room 2904  New York, NY 10007  212-857-8708	Third Circuit  Theresa Burnett  Outreach Contact  U.S. Court of Appeals  601 Market St., Rm. 22409  Philadelphia, PA 19106-1790  267-299-4203
Eastern District of Virginia In the Fourth Circuit  Hilarie Gaylin  Outreach Contact  U.S. District Court  401 Courthouse Square  Alexandria, VA 22314-5798  703-299-2180	Northern District of Illinois In the Seventh Circuit  Daniel J. Lehmann  Outreach Contact  U.S. District Court  219 S. Dearborn Street  Chicago, II 60604  312-435-5607	Eastern District of Missouri In the Eighth Circuit  Sherry Compton  Outreach Contact  111 South Tenth Street  Suite 3.300  St. Louis, MO 63102  314-244-7917
Ninth Circuit  David J. Madden  Outreach Contact  U.S. Court of Appeals  95 Seventh Street, Suite 429  P. O. Box 193939  San Francisco, CA 94119-3939  415-556-6177	D.C. Circuit Court  Robin D. Tabora  Chief Deputy for Administration  U.S. District Court District of Columbia  333 Constitution Avenue, NW  Washington, DC 20001  202-354-3012
Revised June 7, 2002

If a court refuses to follow precedent or misinterprets a precedent, its decision may be reversed by the court above it. A court has the option, rarely exercised, to reverse its own precedent, although usually such precedent is distinguished, meaning that the court decides that the facts in the present case are so different from the facts in the past case that the court need not reach the same conclusion. Courts can be creative in finding differences between fact situations that allow them to distinguish the case in front of them from what might seem, to everyone else, to be binding precedent.

Decoding a Legal Citation

Citations have been provided for all the cases discussed in this book. These citations are not difficult to understand.

Citations are used for locating the decisions, or judicial opinions, of any given case. These opinions are published in sets of books called reporters. All decisions from the federal circuit courts are published in the Federal Reporter. There are now three series of the Federal Reporter books. All decisions from the federal district courts are published in Federal Supplement books. There are now two series of those books. All decisions for the U.S. Supreme Court are officially cataloged in a set of books called the United States Reports. Supreme Court cases may, however, also be found in the Lawyers' Edition United States Supreme Court Reports or in the United States Supreme Court Reporter.

Knowing about these different books is essential if you are interested in learning about how to decipher a legal reference. For example, take a look at the following citation:

Thomas v. Board of Education, 607 F.2d 1043, 1051 (2nd Cir. 1979)

In this case, several students sued their school when they were disciplined based on the content of a publication they had created and distributed off-campus. Let's break down the citation piece by piece:

Thomas v. Board of Education

The last name of the lead student, Thomas, is listed as the plaintiff, or petitioner, in the case.⁴  The plaintiff is the party who has brought the case to court. Because the students were suing their school, their local Board of Education is listed as the defendant, or respondent, in the case. This is the party being sued.

607 F.2d 1043, 1051 (2nd Cir.1979)

This part of the citation tells you that the Thomas case can be found in Volume 607 of the second series of the Federal Reporter. These books are listed as either F., F.2d, or F.3d. If the opinion was published in the Federal Supplement, it would be listed as F.Supp. or F.Supp.2d. For this particular type of note, known as a “pinpoint citation,” two page numbers have been given (1043, 1051). The first number indicates on what page the decision begins; the second number indicates where the passage in question can be found. The parenthetical material (2nd Cir. 1979) indicates that this case was heard by the Second Circuit Court of Appeals, and that a decision in the case was reached in 1979.

Now let's briefly look at a citation from a Supreme Court case:

Wallace v. Jaffree, 472 U.S. 38 (1985).

For Supreme Court citations, U.S. stands for United States Reports. If the case was found in the Lawyers' Edition United States Supreme Court Reports, it would be listed as L.Ed. If it was found in the United States Supreme Court Reporter, it would be listed as S.Ct. By decoding this citation, we know the Wallace case will be found in Volume 472 of the United States Reports, beginning on page 38, and that a ruling was issued in 1985.

If a citation is identical to the previous citation, the word Idem(abbreviated as Id.) is used. If the case is the same but a different page number is being referenced, the format “Id. at 1056” or “Id. at 34 ” is used.

A cite to a scholarly journal or law review article should be read the same way as a court case citation. Citations to state statutes may vary, but they too are generally easy to decipher. If you are interested in reading more about some of the cases listed and discussed here, visit your local law school library, a local courthouse library, or a large public library with legal holdings. For online research, visit www.firstamendmentcenter.org.

Common Abbreviations

A., A.2d

Atlantic Reporter

A.L.R.

American Law Reports

F.

Federal Reporter

F.2d

Federal Reporter, Second Series

F.3d

Federal Reporter, Third Series

F.Supp.

Federal Supplement

F.Supp.2d

Federal Supplement, Second Series

Fed. Reg.

Federal Register

L. Ed.

Lawyers' Edition United States Supreme Court Reports

LexisNexis

Electronic, fee-based legal research tool

Mass.

Massachusetts Reports

N.E.

North Eastern Reporter

N.E.2d

North Eastern Reporter, Second Series

N.W.

North Western Reporter

N.W.2d

North Western Reporter, Second Series

N.Y.S.

New York Supplement

P.

Pacific Reporter

P.2d

Pacific Reporter, Second Series

S.Ct.

United States Supreme Court Reporter

S.E.

South Eastern Reporter

S.E.2d

South Eastern Reporter, Second Series

So.

Southern Reporter

So.2d

Southern Reporter, Second Series

Stat.

Statutes at Large

U.S.

United States Reports

U.S.C.

United States Code

U.S.C.A.

United States Code Annotated

Endnotes

¹  Although the First Amendment applies only to the actions of public school officials (as state employees), the First Amendment Schools project invites all schools—public and private—to fulfill the spirit of the First Amendment by becoming laboratories for democratic freedom.

²  This discussion of the court system is adapted from Law of the Student Press, published by the Student Press Law Center (www.splc.org) in 1994 and is used with permission.

³  Certiorari is a Latin word meaning “to be more fully informed.” Thousands of cases are appealed to the Supreme Court each year; only about 80 to 120, however, are actually accepted, or “granted cert”—shorthand for certiorari.

⁴  Sometimes, however, the petitioner in a U.S. Supreme Court case will be the defendant and not the plaintiff. This is because in a Supreme Court case the petitioner is the person who appeals the Court for review.