In Part II, you read about many different court cases that have shaped First Amendment law in a school setting. In this section, that information will be presented to you in a different way.

Each of the 50 cases that follow is presented as a brief—or an outline of the specifics of a case—to help the reader digest the most important facts. To brief a case, the following categories have been used:

• Case: What is the name of the case? Where can the full case record be found? In what year was the case decided?
• Facts: What are the key issues between the central parties of the case? What happened that is of legal significance?
• Issue: What are the central legal issues the court must decide to arrive at a decision?
• Holding: What did the court decide?
• Reasoning: Why does the court decide the way it does? What is its logic and analysis of the facts?

For every case, a quote from the majority opinion has been provided. Wherever it seems helpful or noteworthy, an excerpt from a dissenting opinion has also been given. These quotes have been provided to allow the reader to hear directly from the judges and to better understand how a legal argument is framed.

The cases that follow are not meant to be the definitive list of First Amendment school cases. Rather, they were chosen to help readers understand how the courts apply the First Amendment in a school setting. Although the list is not exhaustive—especially in the lower courts—these 50 cases are essential for understanding how First Amendment law has evolved in public schools. In both the Supreme Court and lower courts sections, the cases are listed chronologically.

Finally, remember that lower court decisions have limited precedent. That means the ruling of one lower court does not necessarily bind other lower courts. A court is bound only by the decisions of higher courts that have direct jurisdiction over it. Because it is the highest court in the country, however, all courts must follow precedent established by the U.S. Supreme Court.

Case Directory

Supreme Court Case Summaries

1. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
2. Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)
3. McCollum v. Board of Education, 333 U.S. 203 (1948)
4. Zorach v. Clausen, 343 U.S. 306 (1952)
5. Engel v. Vitale, 370 U.S. 421 (1962)
6. Abington School District v. Schempp, 374 U.S. 203 (1963)
7. Epperson v. Arkansas, 393 U.S. 97 (1968)
8. Pickering v. Board of Education, 391 U.S. 563 (1968)
9. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
10. Lemon v. Kurtzman, 403 U.S. 602 (1971)
11. Wisconsin v. Yoder, 406 U.S. 205 (1972)
12. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
13. Stone v. Graham, 449 U.S. 39 (1980)
14. Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982)
15. Wallace v. Jaffree, 472 U.S. 38 (1985)
16. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
17. Edwards v. Aguillard, 482 U.S. 578 (1987)
18. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
19. Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990)
20. Lee v. Weisman, 505 U.S. 577 (1992)
21. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
22. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)
23. Good News Club, et al. v. Milford Central School, 533 U.S. 98 (2001)
24. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

Lower Court Case Summaries

25. Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966)

26. Scoville v. Board of Education of Joliet Township High School District 204, 425 F.2d 10 (7th Cir. 1970)

27. Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972)

28. Melton v. Young, 465 F.2d 1332 (6th Cir. 1972)

29. Thomas v. Board of Education Granville Central School District, 607 F.2d 1043 (2nd Cir. 1979)

30. Klein v. Smith, 635 F.Supp. 1440 (Dist. Me. 1986)

31. Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989)

32. Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992)

33. DeNooyer v. Livonia Public Schools, U.S. App. LEXIS 30084 (6th Cir. 1993)

34. Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995)

35. Hsu v. Roslyn School District, 85 F.3d 839 (2nd Cir. 1996)

36. Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996)

37. Beussink v. Woodland R-IV School District, 30 F.Supp. 2d 1175 (E.D. Mo. 1998)

38. Boring v. Buncombe Board of Education, 136 F.3d 364 (4th Cir. 1998)

39. Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998)

40. Henerey v. City of St. Charles, 200 F.3d 1128 (8th Cir. 1999)

41. Boroff v. Van Wert City Board of Education, 240 F.3d 465 (6th Cir. 2000)

42. Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000)

42. J.S. v. Bethlehem Area School District, 757 A.2d 412 (Pa.Cmwlth. 2000)

44. West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th Cir. 2000)

45. Adler v. Duval, 250 F.3d 1330 (11th Cir. 2001)

46. Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001)

47. Chambers v. Babbitt, 145 F.Supp.2d 1068 (District of Minn. 2001)

48. Lavine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001)

49 Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001)

50. Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001)

Supreme Court Case Summaries

Case 1: West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

Facts: The West Virginia Board of Education adopted a measure requiring that all public school students salute the flag and recite the Pledge of Allegiance. Students who did not participate could be expelled; their parents could even lose custody of them. A group of Jehovah's Witnesses challenged the law on First Amendment grounds. They argued that the forced flag salute conflicted with their religious beliefs against idol worship and graven images and, therefore, violated their free exercise of religion and freedom of speech rights under the First Amendment.

Issue: Whether school officials violate the First Amendment by forcing students to salute the flag and recite the Pledge of Allegiance.

Holding: By a 6–3 vote, the Court held that school officials do violate the First Amendment by compelling students to salute the flag and recite the Pledge of Allegiance.

Reasoning: The First Amendment prohibits government officials from compelling individuals to speak or espouse orthodox beliefs that are at odds with their conscience and values. “There is no doubt that, in connection with the pledges, the flag salute is a form of utterance.” The purpose of the First Amendment is to ensure that individuals have an individual sphere of freedom of thought and belief that the government cannot invade. “Authority here is to be controlled by public opinion, not public opinion by authority.”

Majority: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (Justice Robert Jackson)

Dissent: “An act compelling profession of allegiance to a religion, no matter how subtly or tenuously promoted, is bad. But an act promoting good citizenship and national allegiance is within the domain of governmental authority and is therefore to be judged by the same considerations of power and of constitutionality as those involved in the many claims of immunity from civil obedience because of religious scruples.” (Justice Felix Frankfurter)

Case 2: Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)

Facts: A New Jersey statute authorized local school districts to make rules and contracts for the transportation of children to and from public and private schools. The Board of Education of Ewing Township authorized reimbursement to parents of money spent by them for the bus transportation of their children on regular buses operated by the public transportation system. A taxpayer brought suit claiming that reimbursement to the parents of parochial school students violated the Establishment Clause of the First Amendment.

Issue: Whether reimbursing parents for their children's transportation to and from religious schools violates the Establishment Clause when it is part of a general transportation reimbursement scheme.

Holding: By a 5–4 vote, the Court held that the state does not violate the Establishment clause when it reimburses parents, as the money flows to the parents as part of a general secular policy designed to keep children safe while en route to and from school.

Reasoning: The Court found that while the Establishment Clause requires that the state remain neutral among religions and between religion and nonreligion, the New Jersey plan merely provided money to parents as part of a general government service that was not inherently religious in character, similar to providing sewer and police services to churches.

Majority: “‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’” (Justice Hugo Black)

Dissent: Although the Court was unanimous in affirming the principle of “neutrality” by the government toward religion, four justices disagreed with the majority's view that allowing reimbursement for bus transportation to parents of students in parochial schools was not a breach of church-state separation. In a dissenting opinion, Justice Wiley B. Rutledge defined “no establishment” this way: “The prohibition broadly forbids state support, financial or other, of religion in any guise, form or degree. It outlaws all use of public funds for religious purposes.”

Case 3: McCollum v. Board of Education, 333 U.S. 203 (1948)

Facts: The Champaign (Illinois) County Board of Education authorized a program of religious instruction in which outside religious teachers, paid for by private third parties, were allowed to enter schools once a week to provide religious instruction. Those students not wishing to participate in the program were sent to another room to continue with their class work. Attendance records were kept, and those not attending either the classes or the alternate classroom were considered truant.

Issue: Whether a school may allow outside groups to send instructors onto school grounds, during the school day, to provide students with religious instruction.

Holding: By an 8–1 vote, the Court ruled that the practice of allowing outside religious instructors into the classroom during the school day violates the Establishment Clause by providing government assistance to facilitate the mission of sectarian groups.

Reasoning: The Court found that allowing religious instruction on school grounds, during the school day, provided assistance to sectarian organizations by “providing pupils for their religious classes through use of the State's compulsory public school machinery.” This arrangement was found to unconstitutionally advance religion and confer upon it symbolic government endorsement.

Majority: “To hold that a state cannot consistently with the First and Fourteenth Amendments utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings.” (Justice Hugo Black)

Dissent: “The prohibition of enactments respecting the establishment of religion do not bar every friendly gesture between church and state.” (Justice Stanley Reed)

Case 4: Zorach v. Clausen, 343 U.S. 306 (1952)

Facts: New York City allowed public school students to be released during the school day to religious centers located off school grounds. There, students choosing to participate would receive religious instruction and participate in devotional exercises. Attendance was kept by these religious centers and provided to the school. Students whose families chose not to participate in the release program stayed at school.

Issue: Whether voluntary “released-time” programs that allow religious instruction occurring off school grounds violate the Establishment Clause.

Holding: By a 6–3 vote, the Court held that noncoercive, off-campus “released-time” programs are permissible accommodations of the religious needs of students and do not violate the Establishment Clause.

Reasoning: The Court found New York's released-time program to be substantially different from the program in McCollum. In the New York program, the students were released to receive instruction off campus. “This ‘released time’ program involved neither religious instruction in public school classrooms nor the expenditure of public funds.”

Majority: “We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for a wide variety of beliefs and creed as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities, it follows the best of our traditions.” (Justice William O. Douglas)

Dissent: In his dissent, Justice Hugo Black argued that released-time programs were no different from the program struck down in McCollum because they “channel children into sectarian classes.” He also warned against the state favoring believers over nonbelievers. “Before today, our judicial opinions have refrained from drawing invidious distinctions between those who believe in no religion and those who do believe. The First Amendment has lost much if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under the law.”

Case 5: Engel v. Vitale, 370 U.S. 421 (1962)

Facts: The parents of 10 pupils in New York schools challenged the constitutionality of a New York state law requiring public schools to begin each day with a state-authorized prayer drafted by the State Board of Regents. These parents argued that state-sponsored prayers in public schools violate the Establishment Clause.

Issue: Whether state legislation can require principals, teachers, and students to begin the day with prayers that are sponsored and written by the state.

Holding: In a 6–1 decision (two justices did not participate), the Court held that school officials may not require devotional religious exercises during the school day, as this practice unconstitutionally entangles the state in religious activities and establishes religion.

Reasoning: Appealing to history, the Court explained that the First Amendment protects religious liberty by keeping government from determining when and how people should pray or worship. Early Americans knew, “some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” The Court found that the Establishment Clause prohibits the government from involving itself in devotional religious exercises. It further explained that such separation of church and state protects both government from religious domination and religion from government tyranny and abuse.

Majority: “[W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” (Justice Hugo Black)

Dissent: “With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.” (Justice Potter Stewart)

Case 6: Abington School District v. Schempp, 374 U.S. 203 (1963)

Facts: Pennsylvania state law required that “at least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.” Two families sued, claiming this violated the Establishment Clause of the First Amendment.

Issue: Whether an official reading of Bible passages, without further comment, at the beginning of each school day violates the Establishment Clause.

Holding: By a vote of 8–1, the Court held that state-sponsored devotional Bible readings in public schools constitute an impermissible religious exercise by government.

Reasoning: The Court found that state-sponsored devotional exercises violate the Establishment Clause. The constitutional defects are not corrected by allowing an opt-out provision. The Establishment Clause constrains government from involving itself in religious matters. Therefore, government action that promotes or inhibits religion violates the Constitution. The state may not draft or conduct religious prayers in schools filled with captive audiences of children.

Majority: “In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.” (Justice Tom Clark)

Case 7: Epperson v. Arkansas, 393 U.S. 97 (1968)

Facts: In 1965, Susan Epperson, a 10th grade biology teacher in Little Rock, Arkansas, brought suit to void a 40-year-old law forbidding the teaching of the “theory or doctrine that mankind ascended or descended from a lower order of animals.” A recently adopted biology textbook included an entire chapter on the theory of evolution. Epperson argued that state law forbade teaching from this textbook; that she would be committing a crime if she did so;and that this law, therefore, violated the First Amendment.

Issue: Whether the state can constitutionally ban the teaching of evolution in public schools.

Holding: In a unanimous decision, the Court held that a state's control over the public school curriculum does not include the right to withdraw from the curriculum secular material that is at odds with certain religious beliefs. Such a selective prohibition on knowledge violates the Establishment Clause.

Reasoning: The court found that the law was passed for religious reasons. The statute's primarily religious purpose violates the First Amendment requirement of neutrality between religions, and between religion and nonreligion.

Majority: “The overriding fact is that Arkansas law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.” (Justice Abe Fortas)

Case 8: Pickering v. Board of Education, 391 U.S. 563 (1968)

Facts: A high school science teacher wrote a letter to the editor of a community newspaper, criticizing the board of education's allocation of funds between academics and athletics. The school board terminated the teacher, saying that the letter contained false statements that impugned the integrity of the school system. The teacher sued, claiming that the board violated his First Amendment rights by terminating him for exercising his right to freedom of speech.

Issue: Whether school officials violate the First Amendment by terminating a teacher for writing a letter to the editor that discusses important matters of public concern.

Holding: By an 8–1 vote, the Court held that school officials do violate the First Amendment when they terminate a public school teacher for speaking out as a citizen on matters of public concern.

Reasoning: Public school teachers, as public employees, are entitled to some First Amendment protections. “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In this case, the teacher was speaking more as a citizen than as an employee when he wrote the letter to the editor. The statements in the letter did not target any school official that the teacher dealt with on a daily basis.

Majority: “While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech.” (Justice Thurgood Marshall)

Case 9: Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

Facts: Several students planned to wear black armbands to school to protest U.S. involvement in Vietnam and mourn the dead on all sides. School officials learned of the impending protest and quickly adopted a no-armband rule, though they allowed students to wear other symbols. Nonetheless, the students wore the armbands to school. School officials suspended them for violating school policy. The students sued, claiming violation of their First Amendment rights.

Issue: Whether school officials can censor nonviolent student speech without showing that the speech will cause a material and substantial disruption of school educational activities or collide with the rights of others.

Holding: By a 7–2 vote, the Court held that school officials cannot censor student speech unless school officials reasonably forecast that the speech will cause a material and substantial disruption of school activities or collide with the rights of others. Mere apprehension of disturbance or an offense given is not enough.

Reasoning: Students do not lose their constitutional rights at the schoolhouse door. School officials' duties to provide a safe learning environment must be balanced against students' free expression rights. School officials may not censor student speech because of an “undifferentiated fear or apprehension.” They must reasonably forecast that the student speech will cause a substantial disruption or invade the rights of others. In this case, “the record does not demonstrate any facts which reasonably may have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”

Majority: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Justice Abe Fortas)

Dissent: This case will help usher in “a new revolutionary era of permissiveness in this country fostered by the judiciary.... I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.” (Justice Hugo Black)

Case 10: Lemon v. Kurtzman, 403 U.S. 602 (1971)

Facts: Pennsylvania and Rhode Island statutes provided state aid to church-related elementary and secondary schools. A group of individual taxpayers and religious liberty organizations filed suit, challenging the constitutionality of the program. They claimed that because the program primarily aided parochial schools, it violated the Establishment Clause.

Issues: Whether states can create programs that (1) provide financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects (Pennsylvania), or (2) pay a salary supplement directly to teachers of secular subjects in religious schools (Rhode Island).

Holding: In a unanimous decision, the Court held that both programs violate the Establishment Clause because they create excessive entanglement between a religious entity and the state.

Reasoning: The Court looked to three factors in determining the constitutionality of the contested programs, factors that would become known as the Lemon test. First, the courts determined whether the legislature passed the statute based on a secular legislative purpose. The Court could find no evidence that the goal of the Pennsylvania or Rhode Island legislatures was to advance religion. Instead, the Court relied on the stated purpose that the bill was designed to improve “the quality of the secular education in all schools covered by the compulsory attendance laws.”

Second, the Court questioned whether the programs had the primary effect of advancing or inhibiting religion. It bypassed this prong by examining the third prong and finding a violation there, thus obviating the need for analysis of this point.

The third factor, and the point at which the Court found the constitutional defect, was over the issue of excessive entanglement. Here, the Court held that the state's oversight and auditing requirements and the propensity for political divisiveness generated by this kind of aid program would entangle the state and the religious entity in unconstitutional ways.

Majority: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘excessive entanglement with religion.’” (Chief Justice Warren Burger)

Case 11: Wisconsin v. Yoder, 406 U.S. 205 (1972)

Facts: Members of the Old Order Amish and Mennonite religions ran afoul of Wisconsin's compulsory education law when, for religious reasons, they withdrew their children from public schools after the 8th grade. Three families brought suit, arguing the compulsory education law violated their right to freely exercise their religion.

Issue: Whether the state's interest in educating citizens outweighs the religious freedom of parents to rear their children according to the dictates of their faith.

Holding: By a vote of 6–2 (one justice did not participate), the Court ruled that the state's interest in educating children past the 8th grade does not outweigh the religious freedom of parents under the Free Exercise Clause of the First Amendment.

Reasoning: The Court was convinced that requiring Amish and Mennonite children to attend school past the 8th grade would substantially burden their religious freedom. The Court also found that the religious groups in question provided a support structure for members of their community that did not require education past the 8th grade. This addressed the state's concern that inadequately educated persons could eventually become a drain on the rest of society.

Majority: “Thus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, ‘prepare [them] for additional obligations.’” (Chief Justice Warren E. Burger)

Dissent: “It is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny.” (Justice William O. Douglas)

Case 12: Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)

Facts: A nontenured high school teacher objected to a newly proposed teacher dress code. He circulated a memo from the school principal and gave it to a radio station, which reported on the dress code issue. When the teacher's contract came up for renewal, the school declined to renew it. He sued, claiming that his employment was terminated in response to his public opposition to the teacher dress code. The school board asserted that it had other valid reasons for not rehiring the teacher. These included an allegation that the teacher made an obscene gesture to two students and was involved in an argument with another teacher.

Issue: Whether a public employer can defend itself in a First Amendment retaliation claim by proving that it would have made the same employment decision in the absence of the employee's protected First Amendment activity.

Holding: In a unanimous decision, the Court held that an employer can successfully defend itself in First Amendment employee litigation by showing that it would have made the same decision in the absence of the protected speech activity.

Reasoning: An employee in a First Amendment retaliation case must show that the adverse employment action was taken in response to protected First Amendment activity. The employee must show that the employee's speech or expression played a “substantial role” in the adverse employment decision. But the employer can show that it would have made the same employment decision even if the employee had not engaged in the protected activity. This is now known as a “Mt. Healthy defense.”

Majority: “The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.” (Chief Justice William Rehnquist)

Case 13: Stone v. Graham, 449 U.S. 39 (1980)

Facts: In 1978, the state of Kentucky enacted a law requiring the posting of the Ten Commandments in every public school classroom. Each plaque would be purchased with private contributions and would bear the following statement: “[T]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”

Issue: Whether the Ten Commandments may be permanently and compulsorily posted in public school classrooms by state law.

Holding: By a vote of 5–4, the Court ruled that a state law requiring public schools to permanently post the Ten Commandments violates the Establishment Clause.

Reasoning: In this case, the Court issued a per curiam decision and reversed the lower court without hearing argument. Invoking the Lemon test, the Court found that there was no secular purpose behind the posting of the Ten Commandments. The Commandments are a sacred religious text, and their posting, without any connection to the curriculum, can only be for the purpose of promoting certain religious views.

Majority: “This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause of the Constitution.” (Per Curiam)

Dissent: “The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin ... Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments.” (Justice William Rehnquist)

Case 14: Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982)

Facts: After several of its members attended a conservative educational conference, an upstate New York school board determined that nine books in a high school library, including Slaughter House Five by Kurt Vonnegut and Black Boy by Richard Wright, should be removed because they were inappropriate for young people. Several students and parents challenged the school board's decision to remove these books from the library.

Issue: Whether school officials can, consistent with the First Amendment, remove books from a school library because they find the books inappropriate or objectionable.

Holding: By a 5–4 vote, the Court held that school officials cannot remove books from a school library simply because they find the ideas in the books objectionable.

Reasoning: The First Amendment protects the right to receive information and ideas. A school library is a special place, “the principal locus of such freedom.” The First Amendment prohibits the suppression of material simply because government officials, including school officials, dislike the material. “Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of public opinion.’”

Majority: “[T]he special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.” (Justice William Brennan)

Dissent: The dissent argued that federal courts should not superimpose their judgments about what books should be included in school libraries. “Were this to become the law this Court would come perilously close to becoming a ‘super censor’ of school board library decisions.” (Chief Justice Warren Burger)

Case 15: Wallace v. Jaffree, 472 U.S. 38 (1985)

Facts: In 1981, the Alabama legislature modified a 1978 statute that had allowed a moment of silence for the purpose of “meditation.” The 1981 amendment specified that the moment of silence was for the purpose of “meditation or prayer.” The sponsor of the legislation went on record as stating that the sole purpose of this change was to bring prayer back into schools. When the Jaffree family brought this case to trial, the defense did nothing to rebut this description of the legislative purpose behind the revised statute.

Issue: Whether a law that authorizes a period of silence in public schools for “meditation or voluntary prayer” is a violation of the Establishment Clause.

Holding: In a 6–3 decision, the Court held that a “moment of silence” law is unconstitutional when the explicit purpose and meaning of such a statute is to promote prayer.

Reasoning: The Court distinguished between implicitly allowing students an opportunity for voluntary prayer during an “appropriate moment of silence during the school day,” and a moment of silence designed explicitly to favor prayer or other religious practices. The Court pointed out that the 1978 law already protected students' rights to pray during the moment of silence and that, therefore, the only purpose for changing the statute was to highlight, endorse, and prefer prayer. For this reason, the Court found that the new law failed the first prong of the Lemon test—that government action must have a secular purpose.

Majority: “The addition of ‘or voluntary prayer’ indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.” (Justice John Paul Stevens)

Dissent: “To suggest that a moment-of-silence statute that includes the word ‘prayer’ unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion.” (Chief Justice Warren Burger)

Case 16: Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)

Facts: A public high school student delivered a nominating speech on behalf of another student at a student assembly. The speech contained elaborate and immature sexual innuendo. The school suspended the student for violating the school's no-disruption rule, which prohibited “obscene, profane language.” The student contended that the suspension violated his First Amendment rights because his speech caused no disruption of school activities within the meaning of Tinker.

Issue: Whether school officials may prohibit a vulgar and lewd student speech at a student assembly even if the speech does not create a substantial disruption.

Holding: In a 7–2 decision, the Court held that school officials may prohibit student speech before a student assembly that is vulgar, lewd, and plainly offensive.

Reasoning: Public school officials have a responsibility to “inculcate values” into students. “Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” The vulgar sexual allusions of the student in this case differ markedly from the pure political message of the blackarmband case of Tinker. School officials were not censoring speech based on viewpoint. Rather, they were punishing the student for using vulgar and lewd terms at a student assembly.

Majority: “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.” (Chief Justice Warren Burger)

Dissent: “It does seem to me, however, that if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. The interest in free speech protected by the First Amendment and the interest in fair procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require this result.” (Justice John Paul Stevens)

Case 17: Edwards v. Aguillard, 482 U.S. 578 (1987)

Facts: Louisiana's “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act (Creationism Act) required any public elementary or secondary school that taught evolution also to teach “creation science.” Although the act did not require evolution or creation science to be taught, it did stipulate that if either theory was presented, the other must also be taught. A group of parents, teachers, and religious leaders challenged the statute as an impermissible advancement of religion in violation of the Establishment Clause. The state officials countered that the legitimate secular purpose of the act was to protect academic freedom.

Issue: Whether a statute that requires schools teaching evolution also to provide balanced treatment of creation science violates the Establishment Clause.

Holding: In a 7–2 decision, the Court held that the Creationism Act was intended to promote religion and, therefore, violated the Establishment Clause.

Reasoning: The Court found that the act did not advance academic freedom, but instead stifled it by restricting what and how educators must teach. As this was the only stated purpose, the Court concluded that the real purpose was to promote a particular religious view of the origins of humanity, or conversely, to limit teaching about theories that are contrary to such religious views. The sponsor of the act clearly indicated that his intention in proposing this legislation was to prevent the teaching of theories that were antithetical to his own religious beliefs. For these reasons, the Court found that the “Creationism Act” violated the Establishment Clause.

Majority: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught... [T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause.” (Justice William Brennan)

Dissent: “Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is critical is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.” (Justice Antonin Scalia)

Case 18: Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

Facts: Students produced a school newspaper as part of their journalism class. One issue was to include student-written articles about teen pregnancy and the impact of divorce on kids. The principal objected to the stories, believing they were inappropriate for the younger students and unfair to the pregnant students who might be identified from the text of the article. He also believed that the parents of the students quoted in the divorce article should have been given an opportunity to respond. He deleted the articles from the school newspaper. Three students sued, claiming a violation of their First Amendment rights under the Tinker standard.

Issue: Whether school officials can censor school-sponsored student publications when they believe material is inappropriate for younger students, or for reasons other than the prospect of material and substantial disruption of the educational process.

Holding: By a 5–3 vote, the Court held that school officials can censor school-sponsored student publications when they have purposes reasonably related to legitimate educational concerns. (Note: Because Justice Lewis Powell retired in 1987, there were only eight sitting justices at the time the Hazelwood case was argued. If the Court had reached a 4–4 split, the decision from the court of appeals, which in this case favored the students, would have stood as the final ruling.)

Reasoning: There is a fundamental difference between private student speech and student speech that occurs in school-sponsored activities. Educators have greater authority to control school-sponsored student speech because the public might reasonably believe such speech bears “the imprimatur of the school.” 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 long as their actions are reasonably related to legitimate pedagogical concerns.” A publication created as part of a class is clearly school sponsored and a part of the curriculum. The school never adopted a policy whereby the publication simply became a public forum open to all views. The school administration thus properly acted as editor of the newspaper.

Majority: “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,’ or to associate the school with any position other than neutrality on matters of political controversy.” (Justice Byron White)

Dissent: The dissent argued that the majority erred in making a distinction between student-initiated and school-sponsored speech. The Tinker standard of material and substantial disruption should govern all student free-expression cases. “The case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the ‘mere’ protection of students from sensitive topics.” (Justice William Brennan)

Case 19: Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990)

Facts: Bridget Mergens, a student at Westside High School in Nebraska, requested permission to start a Christian club. Her request was denied, and she filed suit. Mergens argued that the Equal Access Act (EAA) required the school to grant her request to form a Christian club. The act requires that secondary schools allowing “noncurriculum related clubs” to meet must also allow religious and political clubs, as long as they are student initiated and student led. The act also forbids teachers from participating in student religious clubs (except as monitors) and prohibits outside adults from directing, controlling, or regularly attending the meetings of a student religious club. School officials argued that the EAA did not apply to Westside High and that, even if it did, the act was unconstitutional.

Issue: Whether the EAA requirement that schools permitting non-curriculum related clubs must also permit student religious clubs is a violation of the Establishment Clause.

Holding: In an 8–1 decision, the Court ruled that the EAA does not violate the Establishment Clause. The purpose of the act is to avoid discrimination against student religious and political speech. Allowing student religious clubs on the same basis as other student-initiated clubs is equal treatment, not school endorsement of religion.

Reasoning: The Court found there was no Establishment Clause violation because the EAA does not promote or endorse religion, but protects student-initiated and student-led meetings. The Court noted the “crucial difference between government speech endorsing religion, which the Establishment clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise clauses protect.”

Majority: “The broad spectrum of officially recognized student clubs at Westside, and the fact that Westside students are free to initiate and organize additional student clubs, counteract any possible message of official endorsement of or preference for religion or a particular religious belief.” (Justice Sandra Day O'Connor)

Dissent: “Can Congress really have intended to issue an order to every public high school in the nation stating, in substance, that if you sponsor a chess club, a scuba club, or a French club—without having formal classes in those subjects—you must also open your doors to every religious, political, or social organization no matter how controversial or distasteful its views may be? I think not.” (Justice John Paul Stevens)

Case 20: Lee v. Weisman, 505 U.S. 577 (1992)

Facts: Rhode Island public schools frequently invited local clergy members to participate in graduation ceremonies at the middle and high school levels. These clergy were provided with guidelines for nondenominational and nonsectarian prayers for invocations and benedictions. The father of a student at Nathan Bishop Middle School sued, claiming that inviting a rabbi to lead prayers at the middle school graduation was a violation of the Establishment Clause.

Issue: Whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment.

Holding: By a 5–4 vote, the Court held that schools may not promote religious exercises either directly or through an invited guest at graduation ceremonies.

Reasoning: The Court found that the Establishment Clause forbids government from coercing people into participating in a religious activity. Forcing students to choose between attending a graduation ceremony containing religious elements with which they disagree or avoiding the offending practices by not attending their graduation ceremony was inherently coercive and unlawful. The Court found that students who do attend are exposed to subtle coercion to appear as though they approve of or are participating in the prayer.

Majority: “The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so.” (Justice Anthony Kennedy)

Dissent: [W]hile I have no quarrel with the Court's general proposition that the Establishment Clause ‘guarantees that government may not coerce anyone to support or participate in religion or its exercise,’ I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud.” (Justice Antonin Scalia)

Case 21: Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

Facts: Congress passed provisions in the Communications Decency Act (CDA) of 1996 to protect minors from harmful material on the Internet. Two provisions criminalized the display of “indecent” or “patently offensive” online communications. The American Civil Liberties Union and many other groups challenged the constitutionality of these provisions in federal court. They argued that these provisions infringed on First Amendment free speech rights. A lower federal court ruled the two provisions violated the First Amendment. The government appealed to the U.S. Supreme Court.

Issue: Whether federal laws prohibiting the display of “patently offensive” and “indecent” online speech violate the First Amendment.

Holding: By a 7–2 margin, the Court held that the two provisions did violate the First Amendment.

Reasoning: The government has a very important interest in protecting minors from harmful material. But the government cannot silence adult free speech rights simply to protect minors, and these provisions swept in sexual speech that was not obscene. “In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.”

Majority: “[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium [the Internet].” (Justice John Paul Stevens)

Case 22: Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)

Facts: In Santa Fe, Texas, students were elected by their classmates to give pregame prayers at high school football games over the public address system. A number of students sued, arguing that such solemnizing statements or prayers constituted an endorsement of religion, violating the Establishment Clause. The district countered that the pregame invocations were a long-standing tradition in Texas communities. Moreover, the prayer came from a student, thus making it student speech and not state-sponsored speech.

Issue: Whether a student-led prayer over the public address system before high school football games violates the Establishment Clause.

Holding: In a 6–3 decision, the Court ruled that the pregame prayer given by a student at high school football games communicates a government religious endorsement and, as such, violates the Establishment Clause.

Reasoning: The Court was not persuaded by the district's arguments, finding that the student speech was not private. The control the school maintained over the content of the student speech registered government preference for religious speech or prayer. In view of the history of religious practices in the school district, the district's student election policy appeared to be designed to maintain the practice of pregame prayers. The Court also found that the voting mechanism used by the school to determine whether a message would be given and who would give it only exacerbated the Establishment Clause issues since the different religious groups within the school now became rival political factions. Voting for the speaker ensured not only sectarian conflict, but that only the majoritarian religious voice would ever be heard. These factors led the Court to find that the district policy on pre-game messages resulted in both perceived and real endorsement of religion by the government and, therefore, was unconstitutional.

Majority: “The delivery of such a message—over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer—is not properly characterized as ‘private’ speech.” (Justice John Paul Stevens)

Dissent: “The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of ‘public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.’” (Chief Justice William Rehnquist)

Case 23: Good News Club, et al. v. Milford Central School, 533 U.S. 98 (2001)

Facts: Milford Central School, New York, enacted a community use policy whereby school facilities could be used after hours by community groups engaged in specific activities. Educational and community-oriented activities were specifically authorized. The Good News Club submitted a request to use the school's cafeteria to hold Good News Club meetings immediately following the school day. These meetings involved “a fun time of singing songs, hearing a Bible lesson and memorizing scripture ” for students ages 6–12. The school district superintendent denied the request because the club activities involved religious practices that would violate school policy prohibiting the use of school facilities for worship.

Issue: (1) Whether a school violates the free speech rights of the organizers of a religious club when it denies the club access to school for an after-hours meeting. (2) Whether the Establishment Clause is violated if a public school allows a religious club involving worship to use school facilities during nonschool hours.

Holding: In a 6–3 decision, the Court held that a school district engages in viewpoint discrimination and violates the free speech rights of religious community groups when it denies them equal opportunities to use school facilities after hours on the same basis as other groups. Speech may not be excluded from a public forum because of its religious content or viewpoint. Because a religious speaker in a public forum poses no Establishment Clause problem, this could not be used as a basis for excluding the Good News Club.

Reasoning: The Court noted that the school district had created a limited public forum and, therefore, could not discriminate based on the views of the groups that wanted to use the facilities. The Court found that exclusion of the Good News Club was based on the fact that the club's educational message focused on religious matters and came from a religious viewpoint. Therefore, the school had engaged in religious viewpoint discrimination in violation of the First Amendment. As for the Establishment Clause claim, the Court found that because the club met after school hours and was hosted by private parties and the facilities were made generally available to a number of other outside groups, no Establishment Clause violation occurred.

Majority: “When Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment.” (Justice Clarence Thomas)

Dissent: “It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority avoids this reality only by resorting to the bland and general characterization of Good News' activity as ‘teaching of morals and character from a religious standpoint.’” (Justice David H. Souter)

Case 24: Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

Facts: In an effort to address the problem of failing public schools in Cleveland, the State of Ohio enacted a voucher program that provided vouchers to low-income parents for use at participating public and private schools. Once implemented, the schools that chose to participate were overwhelmingly religious private schools, and the vast majority of participating students went to private religious schools. Local taxpayers and students in Cleveland public schools brought suit claiming that the voucher program unconstitutionally aided religious schools.

Issue: Whether Cleveland's voucher program aided private religious schools in violation of the Establishment Clause.

Holding: By a 5–4 vote, the Court held that Cleveland's voucher program provided a religiously neutral benefit that gave parents a true private choice among a number of educational venues. Therefore, the program did not violate the Establishment Clause.

Reasoning: A majority of the Court examined the Cleveland program in its totality, looking at the options available for students to go to magnet schools, receive after-school counseling, or use a voucher to go to a private school. The twin requirements of neutrality and private choice were key to the decision. Because the program was designed to provide no incentive for either religious private, secular private, or public schools, the Court found that true private choice exists, even if the participants in the program overwhelmingly chose religious schools.

Majority: “We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district.” (Chief Justice William Rehnquist)

Dissent: “There is, in any case, no way to interpret the 96.6% of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6% reflects, instead, the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students.... For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious. And it is entirely irrelevant that the State did not deliberately design the network of private schools for the sake of channeling money into religious institutions. The criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobson's choice is not a choice, whatever the reason for being Hobsonian.” (Justice David H. Souter)

Lower Court Case Summaries

Case 25: Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966)

Facts: A group of public school students at an all-black school in Philadelphia, Mississippi, wore “freedom buttons” to school to protest racial segregation in the state. The school principal ordered the students to remove the buttons. The principal believed that the buttons would “cause commotion” and “disturb the school program.” When several students continued to wear the buttons, the principal suspended them for a week.

Issue: Whether school officials could suspend students for wearing “freedom buttons.”

Holding: By a 3–0 vote, a Fifth Circuit panel held that school officials could not prohibit the wearing of the “freedom buttons” because there was no evidence that the buttons would have caused a substantial disruption.

Reasoning: The record demonstrates that there was no commotion or disruption caused by the wearing of the buttons. “The record indicates only a showing of mild curiosity on the part of the other school children over the presence of some 30 or 40 children wearing such insignia.” Because the wearing of buttons did not cause a disruption, the regulation preventing the wearing of such buttons is “arbitrary and unreasonable.”

Majority: “But with all of this in mind we must also emphasize that school officials cannot ignore expressions of feelings with which they do not wish to contend. They cannot infringe on their students' right to free and unrestricted expression as guaranteed to them under the First Amendment to the Constitution, where the exercise of such rights in the school buildings and schoolrooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” (Judge Walter Gewin)

Case 26: Scoville v. Board of Education of Joliet Township High School District 204, 425 F.2d 10 (7th Cir. 1970)

Facts: Two public high school students in Illinois published an underground paper called Grass High and distributed it on campus. School officials suspended the students because they believed the content in the paper was “inappropriate and indecent.” The newspapers criticized certain school policies. The students sued, claiming a violation of their First Amendment rights.

Issue: Whether school officials could suspend students without a reasonable forecast of substantial disruption.

Holding: By a 5–1 vote, the Seventh Circuit held that school officials could not punish the students for their underground newspaper unless they could reasonably forecast that it would cause a substantial disruption at school.

Reasoning: The student underground newspaper contained language that was offensive to school officials. But school officials cannot punish students for their expression unless they can show a reasonable forecast of substantial disruption. School officials failed to present any evidence of disruption.

Majority: “While recognizing the need of effective discipline in operating schools, the law requires that the school rules be related to the state interest in the production of well-trained intellects with constructive critical stances, lest students' imaginations, intellects, and wills be unduly stifled or chilled.” (Judge Roger J. Kiley)

Dissent: “In my view, plaintiffs' advocacy of disregard of the school's procedure carried with it an inherent threat to the effective operation of a method the school authorities had a right to utilize for the purpose of communicating with the parents of students.” (Judge Latham Castle)

Case 27: Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972)

Facts: A male high school student with long hair sued the principal of a Texas high school after he was denied enrollment because his hair length violated the school's “good grooming” policy. This policy prohibited any male student's hair from hanging over his ears or collar, or from obstructing his vision.

Issue: Whether a public school student has a First Amendment right to wear long hair to school.

Holding: By a narrow 8–7 margin, the Fifth Circuit held that a student does not have a constitutional right to wear his hairstyle however he sees fit.

Reasoning: Observing that “the most frequently asserted basis for a constitutional right to wear long hair lies in the First Amendment,” the appeals court majority stated: “For some, no doubt, the wearing of long hair is intended to convey a discrete message to the world. But, for many, the wearing of long hair is simply a matter of personal taste or the result of peer group influence.”

The appeals court focused on the following statement from the Supreme Court's opinion in Tinker:

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hairstyle or deportment.... Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’”

The majority reasoned that this language from Tinker indicates that students do not have a First Amendment right to wear any hairstyle they desire.

Majority: “For some, no doubt, the wearing of long hair is intended to convey a discrete message to the world. But for many, the wearing of long hair is simply a matter of personal taste or the result of peer group influence.” (Judge Lewis Morgan)

Dissent: “I submit that under the First and Fourteenth Amendments, if a student wishes to show his disestablishmentarianism by wearing long hair or has the whim to wear long hair, antidisestablishmentarians on public school boards have no constitutional authority to prevent it.” (Judge John Minor Wisdom)

Case 28: Melton v. Young, 465 F.2d 1332 (6th Cir. 1972)

Facts: A high school in Chattanooga, Tennessee, prohibited the use of the Confederate flag and discontinued the playing of “Dixie ” as the school pep song because of racial tensions. The school dress code also prohibited the wearing of “provocative symbols on clothing.” The board of education specifically designated the Confederate flag as such a provocative symbol.

When a high school student was suspended for wearing a jacket with an emblem of the Confederate flag, he sued, claiming a violation of his First Amendment rights. A district court determined that the school's dress code policy was unconstitutionally vague but still upheld the suspension as valid. The student appealed.

Issue: Whether school officials could suspend a student for wearing Confederate flag clothing to school when racial tensions existed at the school the previous year.

Holding: By a 2–1 vote, a panel of the Sixth Circuit held that the school could reasonably forecast that the wearing of Confederate flag clothing would cause a substantial disruption at the school.

Reasoning: The school could reasonably forecast substantial disruption because of the history of recent racial tension at the school. Racial tensions had led to a fight at a football game and had led school officials to close school on two occasions the previous school year. Because of the “tense racial situation,” the school officials were justified in suspending the student for wearing Confederate flag clothing.

Majority: “This is a troubling case; on the one hand we are faced with the exercise of the fundamental constitutional right to freedom of speech, and on the other with the oft conflicting, but equally important, need to maintain decorum in our public schools so that the learning process may be carried out in an orderly manner.” (Judge Damon Keith)

Dissent: The lower court ruled that the school dress code policy prohibiting “provocative symbols” was unconstitutional. If that policy is unconstitutional, “it cannot be validly applied” to the student in this case. (Judge William E. Miller)

Case 29: Thomas v. Board of Education Granville Central School District, 607 F.2d 1043 (2nd Cir. 1979)

Facts: Several students in a New York school published a newspaper entitled Hard Times that lampooned the school environment. The students created the newspaper largely on their own time and distributed the paper off campus. Nonetheless, school officials suspended the students for five days for publishing an allegedly “morally offensive, indecent, and obscene” publication.

The students sued, claiming a violation of their First Amendment rights. They argued that school officials did not have the authority to punish them for their off-campus activities. A district court sided with the school. The students then appealed.

Issue: Whether school officials can, consistent with the First Amendment, punish students for the content of publications that were created and distributed off campus.

Holding: In a unanimous panel decision, the Second Circuit ruled that the authority of school officials does not extend beyond the schoolhouse gate, certainly in the context of regulating purely expressive activity.

Reasoning: School officials must have broad discretion to oversee their many responsibilities. “But our willingness to defer to the schoolmaster's expertise in administering school discipline rests, in large measure, upon the supposition that the arm of authority does not reach beyond the schoolhouse gate.” The students' publication was printed and distributed outside the school. The panel reasoned that “any activity within the school itself was ‘de minimis’” or very minimal.

Majority: “When school officials are authorized only to punish speech on school property, the student is free to speak his mind when the school day ends.” (Judge Irving R. Kaufman)

Case 30: EMPH TYPE="2">Klein v. Smith, 635 F.Supp. 1440 (Dist. Me. 1986)

Facts: A high school student in Maine made a vulgar gesture to a teacher off campus and after school hours. School officials suspended the student for ten days for “vulgar or extremely inappropriate language or conduct directed to a staff member.” The student sued, claiming that the suspension violated his First Amendment free speech rights.

Issue: Whether school officials can discipline a student for engaging in vulgar behavior that occurs off campus and after school hours.

Holding: In his decision, Judge Gene Carter held that school officials lack authority to punish a student for conduct that does not occur on school grounds or during the school day. (Note: A single judge decides a case in a federal district court case.)

Reasoning: The court noted that the “conduct in question occurred in a restaurant parking lot, far removed from any school premises.” The court found that the school officials could not establish that the vulgar gesture would adversely affect the orderly operation of the school.

Quote: “The First Amendment protection of freedom of expression may not be made a casualty of the effort to force-feed good manners to the ruffians among us.”

Case 31: Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989)

Facts: A public high school discontinued use of a textbook for a humanities course after receiving a parental complaint. The parent objected to an English translation of the Greek dramatist Aristophanes's Lysistrata and to English poet Geoffrey Miller's The Miller's Tale. The parent believed that the two works of art were too vulgar. Several other parents then sued, saying the removal of the textbook violated the First Amendment.

Issue: Whether school officials may remove a book from the curriculum because of its vulgarity and explicit sexual references.

Holding: In a 3–0 decision, an 11th Circuit panel held that school officials can remove books from the curriculum if they believe they are too vulgar for students.

Reasoning: “In matters pertaining to the curriculum, educators have been accorded greater control over expression than they may enjoy in other spheres of activity.” Schools may remove books from the curriculum if they have a legitimate educational reason for doing so. Removing books because of vulgar or explicitly sexual language qualifies as such a reason.

Majority: “Like the district court, we seriously question how young persons just below the age of majority can be harmed by these masterpieces of Western literature. However, having concluded that there is no constitutional violation, our role is not to second-guess the wisdom of the Board's action.” (Judge R. Lanier Anderson)

Case 32: Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992)

Facts: A group of teachers in McMinnville, Oregon, went on a lawful strike. The school district hired replacement teachers. Two students, whose fathers were striking teachers, wore buttons with the word “scab” on them. The students distributed similar buttons to their classmates.

School officials prohibited the students from wearing the buttons. The students sued, claiming a First Amendment violation. The lower court sided with the school district. The students then appealed.

Issue: Whether a lower court erred in allowing school officials to prohibit students from wearing buttons without a showing of substantial disruption.

Holding: In a 3–0 decision, a Ninth Circuit panel held that the students' wearing of the buttons could not be prohibited unless the school district could show a reasonable forecast of substantial disruption.

Reasoning: Student speech is divided into three basic categories: (1) vulgar and plainly offensive speech; (2) school-sponsored speech; and (3) speech that falls into neither of the first two categories. The buttons in this case were not vulgar and they were not school-sponsored. Thus, the school district had to show that the buttons would cause a substantial disruption of school activities. “The passive expression of a viewpoint in the form of a button worn on one's clothing is ‘certainly not in the class of those activities which inherently distract students and break down the regimentation of the classroom.’” It thus falls within the Tinker standard.

Majority: “The schoolroom prepares children for citizenship, and the proper exercise of the First Amendment is a hallmark of citizenship in our country.” (Judge John Clifford Wallace)

Case 33: DeNooyer v. Livonia Public Schools, U.S. App. LEXIS 30084 (6th Cir. 1993)

Facts: Second grader Kelly DeNooyer was a student at McKinley Elementary School in Livonia, Michigan. Her teacher started a program where a student in her class would be “VIP of the week.” This program was designed to allow students to receive special attention from classmates and be allowed special “show and tell” privileges to present before the class. The goal of this program was to give students a sense of self-confidence and poise based on their verbal presentations. Kelly DeNooyer was chosen as VIP of the Week and was allowed to bring in an item to discuss and display to her classmates. She brought in a videotape of her performance of a religious song at a church service. The teacher reviewed the tape and told Ms. DeNooyer that she would not be allowed to show it in class.

Issue: Whether a teacher's refusal to allow a student to show, as part of a classroom exercise, a videotape of the student singing a religious song violated that student's First Amendment rights.

Holding: In a 3–0 vote, a Sixth Circuit panel held that requiring a student to complete classroom exercises in ways that best achieve the goal of the exercise in question does not violate the free speech rights of the student.

Reasoning: The court found that school classrooms are closed forums, designed not to allow the free expression of ideas, but to create an educational environment. As such, as long as teachers have legitimate pedagogical reasons for their actions, they do not violate the Constitution when they require students to abide by the express rules as well as the goals of assignments.

Majority: “We hold that 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 long as their actions are reasonably related to legitimate pedagogical concerns.” (Judge Nancy G. Edmunds)

Case 34: Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995)

Facts: A teacher at Dickson County Junior High School in Tennessee assigned a research paper to students. Each student was to sign up for the topic of his or her choice, which then required approval of any changes. Brittany Settle, a student in the class, originally signed up for a paper about drama but later changed her topic to “The Life of Jesus” without approval. The teacher refused to accept Ms. Settle's paper and, when she refused to write on another topic, the student received a zero for the assignment. After exhausting the appeals process within the school system, Ms. Settle's father brought suit against the school, claiming that his daughter's free speech rights had been infringed. The teacher defended herself by providing six reasons for her decision.

Issue: Whether a teacher violated a student's free speech rights by refusing to accept her paper on “The Life of Jesus” after she was instructed to write on another topic.

Holding: In a 3–0 decision, a Sixth Circuit panel held that a teacher retains control over curriculum and assignments, and this control includes the power to determine the educational requirements of an assignment and enforcement of such requirements.

Reasoning: Teachers must retain control over their classrooms and their curricula. This includes authority over grades and assignments. A student's free speech rights are not violated by having to abide by the criteria set by the teacher. The court indicated it would only become involved in mistakes made by teachers when they indicated real intrusions on First Amendment rights.

Majority: “Teachers ... must be given broad discretion to give grades and conduct class discussion based on the content of speech.” (Judge Gilbert S. Merritt)

Concurrence: “I do not believe ... that the majority correctly states the law in this regard by holding, ‘learning is more vital in the classroom than free speech.’” (Judge Alice M. Batchelder)

Case 35: Hsu v. Roslyn School District, 85 F.3d 839 (2nd Cir. 1996)

Facts: Emily Hsu and several other students of Roslyn High School in New York contacted school officials to request recognition of a newly forming after-school Bible club in compliance with the EAA. After months of deliberation and meetings, the school requested a club charter from the students. The charter provided to the school included a section on the requirements of officers, one of which was that all officers of the club had to be professing “Christians.” After reviewing the proposed charter, the school board informed the students that they could form the Bible club only after removal of the requirement that club officers be of the Christian faith. The board claimed such provisions violated the antidiscrimination policies of the school district.

Issue: Whether denying clubs the right to form on school grounds because they limited leadership positions to members of a particular faith violates the EAA.

Holding: In a 3–0 decision, a Second Circuit panel ruled that limiting leadership of the club to particular categories of people, if relevant to the message and purpose of the club, is a form of expressive activity protected by the EAA. The school may, however, strike the religion requirement for other leadership positions not central to the identity of the club.

Reasoning: The court passed on the constitutional issues, preferring instead to look to the language and intent of statutory provisions of the EAA. The court found that the act was designed to protect religious and political speech by students, and that part of the speech protected involved forming groups for specific purposes. As long as the requirements for leadership reflected the intended speech of the student club, they were protected. For this reason, the offices of president, vicepresident, and music coordinator could have religion requirements. The offices of social coordinator and secretary were not viewed as being as central to the identity and leadership of the club, and the court allowed the school to strike the religion requirements from these positions.

Majority: “[W]hen the students' desire to hold a meeting covered by the [Equal Access] Act involves a decision not to associate with other students, that decision, depending on its purpose, may constitute an exercise of the students' right of expressive association. On the one hand, an exclusion solely for reasons of hostility or cliquishness, with no direct bearing or effect on the group's speech, does not implicate the right to expressive association. But expressive association is implicated when the decision to exclude is made in order to foster the group's shared interest in particular speech.” (Judge Dennis G. Jacobs)

Case 36: Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996)

Facts: Two public school students wore several “Co-ed Naked...” T-shirts that school officials deemed vulgar. When school officials told the students they could not wear the shirts, the students sued in federal court.

The federal appeals court eventually asked the state supreme court to interpret a state law that seemed to give students greater protection than they receive under the First Amendment.

Issue: Whether, under Massachusetts law, public high school students are free to engage in any expression they choose, even if deemed vulgar by the school, as long as the speech is neither disruptive nor school sponsored.

Holding: In a unanimous decision, the court held that Massachusetts law protects students' rights to engage in vulgar, nonschool-sponsored speech as long as it does not cause a disruption at school.

Reasoning: Massachusetts law provides: “The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.” The state high court noted that this language is “clear and unambiguous.” The statute contains no exception for vulgar or offensive expression that is not disruptive.

Majority: “Our Legislature is free to grant greater rights to the citizens of this Commonwealth than would otherwise be protected under the United States Constitution.” (Judge Paul J. Liacos)

Case 37: Beussink v. Woodland R-IV School District, 30 F.Supp.2d 1175 (E.D.Mo. 1998)

Facts: A high school student in Missouri created a personal Web site on his own computer. His home page contained a hyperlink to the school Web site and lampooned school officials. He used vulgar language on his site. Another student showed the student's Web site to a teacher, who then showed it to the principal. The principal suspended the student for 10 days because of the content of his home page. The student sued, claiming a violation of his First Amendment rights.

Issue: Whether school officials may punish a student because they dislike the content of his personal Web site that he created off campus.

Holding: In his decision, Judge Rodney W. Sippel held that school officials may not punish a student for the content of his or her personal home page unless the material creates a substantial disruption at school. (Note: A single judge decides a case in a federal district court case.)

Reasoning: “Disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech under Tinker.” The student's home page did not create a substantial disruption or material interference with school activities. “Indeed, it is provocative and challenging speech, like Beussink's, which is most in need of the protections of the First Amendment.” Quote: “The public interest is not only served by allowing Beussink's message to be free from censure, but also by giving the students at Woodland High School this opportunity to see the protections of the United States Constitution and the Bill of Rights at work.”

Case 38: Boring v. Buncombe Board of Education, 136 F.3d 364 (4th Cir. 1998)

Facts: A North Carolina high school drama teacher chose the play Independence for her students to perform at a competition. The play depicts a dysfunctional family that includes a lesbian daughter and a daughter with an illegitimate child. The students captured top honors at a regional competition. The principal learned of the script, objected to the play, and eventually only let the students perform it with certain scenes deleted. The principal then transferred the teacher to a new school because she allegedly had failed to follow the school's “controversial materials” policy. That policy gives parents some control over what material their children are exposed to at school. The teacher alleged that the “controversial materials” policy did not cover dramatic presentations. The teacher sued on First Amendment grounds, alleging that she was retaliated against in her transfer because of the content of the play.

Issue: Whether a public school teacher has a First Amendment right to participate in the choice of the school curriculum.

Holding: By a 7–6 vote, the Fourth Circuit held that the plaintiff's selection of the play as part of the school curriculum was not protected expression under the First Amendment.

Reasoning: The majority determined that the teacher's First Amendment claim failed for two reasons: First, the court analyzed the case as a standard public employee free-speech case. In public employee free-speech cases, plaintiffs must show that their speech was a matter of public importance or public concern.

The majority determined that the teacher's selection of the play did “not present a matter of public concern and is nothing more than an ordinary employment dispute.” The majority also said that the school had a legitimate educational reason for editing the play. “While we are of the opinion that plaintiff had no First Amendment right to insist on the makeup of the curriculum, even assuming that she did have, we are of the opinion that the school administration did have a legitimate pedagogical interest” for objecting to her selection of the play.

Majority: “Since plaintiff's dispute with the principal, superintendent of schools and the school board is nothing more than an ordinary employment dispute, it does not constitute protected speech and has no First Amendment protection.” (Judge Hiram Widener)

Dissent: “School administrators must and do have final authority over curriculum decisions. But that authority is not wholly unfettered.” (Judge Diana Motz)

Case 39: Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998)

Facts: A high school English and journalism teacher in Missouri failed to censor her students' creative writing assignments even though some of her students used profanity in their work. After a complaint, the school principal terminated the teacher for violating the school's “noprofanity” rule, which had traditionally not been applied to classroom exercises. The teacher sued, alleging a violation of her First Amendment rights. A jury sided with the teacher. The school district appealed.

Issue: Whether school officials could terminate a teacher for failing to censor her students' written work without violating her First Amendment rights.

Holding: In a 3–0 decision, an Eighth Circuit panel held that school officials did not violate the First Amendment when they terminated the teacher for allowing her students to use profanity in their classroom work.

Reasoning: The court wrote that “a school district does not violate the First Amendment when it disciplines a teacher for allowing students to use profanity repetitiously and egregiously in their written work.” The majority reasoned that the school board policy against profanity was “explicit and contained no exceptions.”

Majority: “We hold, as a matter of law, that the school board had a legitimate academic interest in prohibiting profanity by students in their creative writing.” (Judge Richard Arnold)

Case 40: Henerey v. City of St. Charles, 200 F.3d 1128 (8th Cir. 1999)

Facts: A Missouri high school student campaigned for junior class president. He passed out condoms to accompany his slogan “Adam Henerey, The Safe Choice.” School rules provided that students must obtain prior approval for their campaign materials. The student did not obtain prior approval before passing out the condoms. School officials disqualified him from the election even though he had received a majority of the votes. The student claimed a violation of his First Amendment rights. After a district court rejected his claim, he appealed to the Eighth Circuit Court of Appeals.

Issue: Whether school officials can require students to submit campaign materials for prior approval.

Holding: In a 2–1 decision, an Eighth Circuit panel held that school officials can require students to obtain prior approval for campaign slogans during school-sponsored elections.

Reasoning: The student election was operated under the control of the school. Thus, the speech during the student election was a form of school-sponsored student speech. Under Hazelwood, the school can censor school-sponsored student speech if it has a legitimate educational reason. The school has a “legitimate interest in divorcing its extracurricular programs from controversial and sensitive topics, such as teenage sex.” The student's actions in distributing the condoms “ran counter to the District's pedagogical concern and its educational mission.”

Majority: “School districts have an interest in maintaining decorum and in preventing the creation of an environment in which learning may be impeded, an interest that was particularly strong in the present case because the condom distribution occurred within the context of a school-sponsored election.” (Judge Roger L. Wollman)

Dissent: The majority should not have dismissed Henerey's First Amendment claim. “I disagree with the suggestion that safe sex among high school students is such a controversial topic that school officials may squelch its discussion in a school-sponsored school election contest.” (Judge Charles R. Wolle)

Case 41: Boroff v. Van Wert City Board of Education, 240 F.3d 465 (6th Cir. 2000)

Facts: A high school student wore a T-shirt to an Ohio school bearing the name of the shock rocker Marilyn Manson. The shirt depicted a three-faced Jesus, bearing the words “See No Truth. Hear No Truth. Speak No Truth.” On the back, the shirt contained the word “BELIEVE” with the letters “LIE” highlighted.

A school official told the student that the T-shirt violated the school's dress code policy, which prohibited “clothing with offensive illustrations.” The school official ordered the student to either turn the shirt inside out or leave school. The student left and returned the next day with another Marilyn Manson T-shirt. He was again sent home. The student sued, claiming a violation of his First Amendment rights. A federal district court dismissed the suit. The student appealed to the Sixth U.S. Circuit Court of Appeals.

Issue: Whether school officials can prohibit a student from wearing T-shirts with offensive messages.

Holding: In a 2–1 vote, a Sixth Circuit panel ruled that school officials may prohibit students from wearing clothing that is vulgar or offensive.

Reasoning: The majority quoted the U.S. Supreme Court's decision in Fraser: “It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” In addition, the court ruled that the school could prohibit student clothing which is “patently contrary to the school's educational mission.”

Majority: “The standard for reviewing the suppression of vulgar or plainly offensive speech is governed by Fraser.” (Judge Harry W. Wellford)

Dissent: The dissenting judge argued that school officials cannot forbid students from wearing T-shirts simply because they disagree with the shirt's message. “In sum, the Supreme Court's First Amendment jurisprudence prohibits school officials from telling a student that he cannot wear a particular T-shirt simply because they perceive that the T-shirt is communicating a message with which they disagree.” (Judge Ronald Lee Gilman)

Case 42: Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000)

Facts: Ferrin Cole and Chris Niemeyer, students at Oroville High School in California, were selected to give the invocation and valedictorian graduation speeches, respectively. The district had a policy of reviewing the speeches. During this review process, the school informed the students that their messages were too sectarian and proselytizing and had to be modified. When the students refused, they were denied the opportunity to speak at graduation. The students sued, seeking damages for denial of their First Amendment right of free speech.

Issue: Whether a school's revocation of students' opportunities to give invocation and valedictorian speeches at graduation due to the religious and proselytizing nature of their messages violates the students' freedom of speech.

Holding: In a 3–0 decision, a Ninth Circuit panel ruled that a graduation ceremony is not an open speech forum but a government ceremony, and, as such, the school has a responsibility to avoid Establishment Clause violations during its graduation ceremony.

Reasoning: The court found that the close control the school exercised over every aspect of the ceremony gave the student speeches the implied endorsement of the school. Because the student messages bore the imprimatur of the school, the school had an obligation to make sure that the student messages would not violate the Establishment Clause. For these reasons, the court easily found that the graduation prayer was problematic irrelevant of its specific theological content. The valedictorian speech posed harder problems. Yet in the end, the level of the school's control over the content of the speech indicated that the speech was not purely private student speech, but bore the significant imprimatur of the school.

Majority: “Because district approval of the content of student speech was required, allowing Niemeyer to make a sectarian, proselytizing speech as part of the graduation ceremony would have lent District approval to the religious message of the speech. Equally important, an objective observer familiar with the District's policy and its implementation would have likely perceived that the speech carried the District's seal of approval.” (Judge Raymond C. Fisher)

Case 43: J. S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002)

Facts: A Pennsylvania middle school student created his own Web site, which contained derogatory comments about his algebra teacher and the school principal. The site featured a picture of the teacher's head dripping with blood, showed her face morphing into Adolf Hitler, and contained language offering money to find a hit man to kill the teacher. The teacher allegedly suffered extreme distress after learning of the site. The site also contained derogatory comments about the principal.

The school suspended the student and then brought expulsion proceedings against him. The student argued that the Web site contained mere hyperbole and was not a true threat.

Issue: Whether school officials could punish a student for his derogatory and allegedly threatening online comments about a teacher.

Holding: In a 6–0 decision, the Pennsylvania Supreme Court held that school officials could punish the student because the student's Web site created a substantial disruption of school activities.

Reasoning: The state high court first reasoned that the student's comments did not constitute a true threat, finding the Web site to be a “sophomoric, crude, highly offensive and perhaps misguided attempt at humor.” However, the court still ruled in favor of the school district because the student's Web site had a “demoralizing impact on the school community.” First, the court determined that school officials were justified in punishing the student for his Web site, even though it was created off-campus, because there was a “sufficient nexus between the web site and the school campus to consider the speech as occurring on-campus.” The court then determined that the school district's actions were protected by both the Fraser standard of lewd and offensive speech, and the Tinker standard of substantial disruption. “In sum,” the court wrote, “the web site created disorder and significantly and adversely impacted the delivery of instruction.”

Quote: “Unfortunately, the United States Supreme Court has not revisited this area [of First Amendment rights of public school students] for fifteen years. Thus, the breadth and contour of these cases and their application to differing circumstances continues to evolve. Moreover, the advent of the Internet has complicated analysis of restrictions on speech. Indeed, Tinker's simple armband, worn silently and brought into a Des Moines, Iowa classroom, has been replaced by J.S.'s complex multimedia web site, accessible to fellow students, teachers, and the world.” (Justice Ralph J. Cappy).

Case 44: West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th Cir. 2000)

Facts: A middle school student drew a picture of the Confederate flag in his math class. Officials in his Kansas school learned of the drawing and suspended the student for violating its racial harassment and intimidation policy. That policy provided that “students shall not at school, on school property or at school activities wear or have in their possession any written material ... that is racially divisive or creates ill-will or hatred.” The student sued, claiming that the school officials violated his First Amendment rights.

Issue: Whether school officials violated the student's First Amendment rights when they suspended him for violating a racial harassment policy for drawing a picture of the Confederate flag.

Holding: In a 3–0 decision, a 10th Circuit panel held that school officials had reason to believe a student's display of the Confederate flag would cause a substantial disruption or collide with the rights of others.

Reasoning: The school district, based upon past incidents of racial tension and violence, had good reason to adopt a racial harassment and intimidation policy. School officials could reasonably believe that a student's display of the Confederate flag would cause substantial disruption of school activities or invade the rights of others. “The policy expressly prohibits any student from possessing in his own handwriting a depiction of the Confederate flag.”

Majority: “To be sure, [the child's] display of the Confederate flag could well be considered a form of political speech to be afforded First Amendment protection outside the educational setting.” (Judge Bobby Ray Baldock)

Case 45: Adler v. Duval, 250 F.3d 1330 (11th Cir. 2001)

Facts: Duval County, Florida, instituted a policy for graduation ceremonies that allowed students of the senior class to vote on whether two-minute messages will be given at the beginning and end of the event, and then permitted seniors to elect a student to supply such messages. These messages were to be prepared solely by the students elected, and no school official was to have any input or review over them. The stated goal was to allow students to control their own graduation ceremony without “monitoring or review by school officials.” Several Duval County students brought suit, claiming this policy had the effect of advancing religion and was a violation of the Establishment Clause.

(Note: This case originally reached the Supreme Court the same year as Santa Fe v. Doe. After ruling in Santa Fe, the Court vacated the 11th Circuit's decision and sent the case back for review in light of the Santa Fe decision. The 11th Circuit, using the reasoning in Santa Fe, reinstated their original decision.)

Issue: Whether Duval County's policy of electing student speakers to give two-minute messages constitutes a forum for true private expression of the student or is government-sponsored speech as in the Santa Fe v. Doe decision.

Holding: By a vote of 8–4, the court held that the Duval County policy was constitutional, even in light of Santa Fe v. Doe.

Reasoning: The court analyzed the policy first in light of the Santa Fe decision. It found the differences substantial and important enough to distinguish the two situations. The court found that the lack of oversight by administrators made the speeches the private speech of the students and that it was not transformed into government speech as in the Santa Fe decision. This allowed the court to proceed to analyze the policy under the Lemon test. As it had previously done, the court found that the policy passed muster under Lemon, as it had a secular purpose, did not have the effect of advancing or inhibiting religion, and did not excessively entangle the state with religion.

Majority: “While school officials may make private religious speech their own by endorsing it, schools do not endorse all speech that they do not censor. We cannot assume ... that Duval County seniors will interpret the school's failure to censor a private student message for religious content as an endorsement of that message—particularly where the students are expressly informed as part of the election process that they may select a speaker who alone will craft any message ... No religious result is preordained.” (Judge Stanley Marcus)

Dissent: “The Supreme Court's decision on this issue renders untenable the majority's position that the Duval policy survives constitutional scrutiny.... Indeed, the very mechanism that the majority of this Court claims removes any impermissible coercion from the Duval policy serves to silence students espousing minority views, and forces them to participate in a state-sponsored exercise in which the message is determined by students holding majority views. The First Amendment does not permit such coercion.” (Judge Phyllis A. Kravitch)

Case 46: Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001)

Facts: In the 1998–99 school year, a Louisiana parish school board decided to implement a mandatory school uniform policy. The school board believed the uniform policy would improve the educational process by reducing disciplinary problems. Several parents of students challenged the new dress code on First Amendment grounds. The school presented evidence that, since the adoption of the uniform policy, academic performance increased and discipline problems declined. A district court rejected the parents' lawsuit. The parents then appealed to the Fifth Circuit Court of Appeals.

Issue: Whether a mandatory school uniform policy violates students' First Amendment rights.

Holding: In a 3-0 decision, a Fifth Circuit panel held that adjusting the school's dress code by adopting a uniform policy is a constitutional means for school officials to improve the educational process if it is not directed at censoring the expressive content of student clothing.

Reasoning: The school board uniform policy in this case was passed to improve the educational process by increasing test scores and reducing discipline problems. “This purpose is in no way related to the suppression of student speech,” the panel wrote. “Although students are restricted from wearing clothing of their choice at school, students remain free to wear what they want after school hours.”

Majority: “The uniform requirement does not bar the important ‘personal intercommunication among students’ necessary to an effective educational process.” (Judge Robert M. Parker)

Case 47: Chambers v. Babbitt, 145 F.Supp.2d 1068 (Dist. Minn. 2001)

Facts: On January 16, 2001, Elliot Chambers, a student at Woodbury High School in Minnesota, attended classes wearing a sweatshirt with the words “Straight Pride” and a symbol of a man and woman holding hands. Administrators were notified that certain students were offended by this message. The principal informed Chambers he was not to wear the shirt again.

Chambers sued, asking that the order by Principal Babbitt be declared unconstitutional and that he be allowed to wear his sweatshirt to school while the case was being litigated. The school responded by pointing to several fights and an incident of vandalism to a gay student's car on school grounds as evidence that the shirt and its message created a substantial disruption to the educational environment.

Issue: Whether school officials may prohibit a student from wearing a shirt emblazoned with a political message other students find offensive.

Holding: In his ruling, Judge Donovan W. Frank held that unless the school has a reasonable belief that the message will materially and substantially interfere with the work of the school, it cannot censor a message on a shirt merely because other students find it offensive. (Note: A single judge decides a case in a federal district court case.)

Reasoning: The court found that the Tinker standard requires the substantial disruptions claimed by the school to have some nexus to the student speech in question. The court granted Chamber's request for a preliminary injunction, though left open the possibility that the school could provide evidence that the “Straight Pride” sweatshirt actually caused the substantial disruption required by the Tinker standard.

Quote: “Maintaining a school community of tolerance includes the tolerance of such viewpoints as expressed by ‘Straight Pride.’ While the sentiment behind the ‘Straight Pride’ message appears to be one of intolerance, the responsibility remains with the school and its community to maintain an environment open to diversity and to educate and support its students as they confront ideas different from their own. The Court does not disregard the laudable intention of Principal Babbitt to create a positive social and learning environment by his decision, however, the constitutional implications and the difficult but rewarding educational opportunity created by such diversity of viewpoint are equally as important and must prevail under the circumstances.”

Case 48: Lavine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001)

Facts: A Washington high school student, troubled by a recent rash of school shootings, wrote a poem, entitled “Last Words,” depicting the feelings a student has after killing several classmates. The student handed the poem in to his English teacher, who had said she would be happy to review his written work.

The teacher became alarmed after reading the poem and contacted the school's counselor. The student had previously told this counselor about having suicidal feelings. The counselor also knew that the student had a fight with his father and had recently broken up with his girlfriend.

Based on the content of the poem and these other circumstances, the school officials expelled the student on an emergency basis. The student was eventually allowed to return to school after a psychologist cleared him. The student then sued, claiming that the school officials violated his First Amendment rights. A federal district court agreed with the student. The school appealed to the Ninth U.S. Circuit Court of Appeals.

Issue: Whether school officials violated the First Amendment when they expelled a student for writing a poem that depicted violence from a first-person perspective.

Holding: In a 3–0 decision, a Ninth Circuit panel held that school officials did not violate the First Amendment because they had reasonably forecasted a “potential for substantial disruption.” (Note: The decision of the three-judge panel decision was appealed to all the judges of the Ninth Circuit for an en banc, or full panel, review. The Ninth Circuit then denied en banc review. Three judges dissented from the denial.

Reasoning: Schools have a duty to prevent violence to students. “Tinker does not require school officials to wait until disruption actually occurs before they may act,” the panel wrote. “In applying Tinker, we look to the totality of the relevant facts.”

Given the totality of the circumstances, including the “backdrop of actual school shootings,” school officials could have reasonably believed that there would be substantial disruption of school activities. “Even in its most mild interpretation, the poem appears to be a ‘cry for help’ from a troubled teenager contemplating suicide,” the court wrote.

Majority: “We review, however, with deference, schools' decisions in connection with the safety of their students even when freedom of expression is involved.” (Judge Raymond C. Fisher)

Case 49: Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001)

Facts: A Texas school district adopted a mandatory uniform policy. The policy contained an opt-out provision for those with sincere religious or philosophical objections to the policy. A group of students and parents contended that the mandatory policy violated their First Amendment free expression rights and their free exercise of religion rights. The plaintiffs also alleged that the opt-out procedures violated the Establishment Clause by favoring certain religions over others.

Issue: Whether a public school district's mandatory uniform policy violates the First Amendment.

Holding: In a 3–0 panel decision, the Fifth Circuit ruled that the school's uniform policy was constitutional.

Reasoning: The school district passed the mandatory uniform policy “to improve student performance, instill self-confidence, foster self-esteem, increase attendance, decrease disciplinary referrals, and lower drop-out rates.” The students have failed to show that the policy was intended to suppress free expression. The Free Exercise Clause claim fails because the policy's opt-out provision is neutral and does not target anyone's religious beliefs. The appeals court also summarily rejected the Establishment Clause claim because there was no endorsement of religion implied by the policy and no coercion of students to participate in religion.

Majority: “The record demonstrates that the Uniform Policy was adopted for other legitimate reasons unrelated to the suppression of student expression.” (Judge Carolyn King)

Case 50: Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001)

Facts: Two high school students in Pennsylvania challenged a school district's antiharassment policy, contending it violated their First Amendment rights. The students believed that the policy prohibited them from voicing their religious belief that homosexuality was a sin.

The policy provided several examples of harassment, including: “any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual” because of “race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics.” The district court ruled the policy constitutional. The students appealed to the Third Circuit Court of Appeals.

Issue: Whether a high school antiharassment policy that prohibits a broad range of speech offensive to others violates the First Amendment.

Holding: In a 3–0 decision, a Third Circuit panel held that such a broadly worded policy prohibits too much speech and violates the First Amendment.

Reasoning: The policy prohibits a substantial amount of speech that is neither vulgar within the meaning of the Fraser standard nor school-sponsored within the meaning of the Hazelwood standard. It even prohibits speech that harasses someone based on “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies, or values.” The policy must be judged under the Tinker“substantial disruption” test. This policy could essentially be applied to any speech that another might find offensive. “This could include much ‘core’ political and religious speech,” the panel wrote. “The policy, then, appears to cover substantially more speech than could be prohibited under Tinker's substantial disruption test.”

Majority: “No court or legislature has ever suggested that unwelcome speech directed at another's ‘values’ may be prohibited under the rubric of anti-discrimination.” (Judge Samuel A. Alito, Jr.)