Running Header: GOLDEN SILENCE

Golden Silence: An Analysis of Current Student Speech Policies

Cadmium Daniels
First Colonial High School
Legal Studies Academy

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Abstract

United States Supreme Court cases, Virginia State court cases and laws, and West Virginia court
cases and laws affecting student speech and expression rights were broken down and reviewed to
examine the differenced in decisions and guidelines. Current issues pertaining to student
expression were examined with great attention in the stakeholders and their legal obligations.
With further comparisons of positive and negative impacts because of ethical reasoning were
analyzed.

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Golden Silence: An Analysis of Current Student Speech Policies

Throughout the decades, there have been sayings such as Children should be seen and
not heard and Silence is Golden. The regulation of what students are allowed to say affects
their actions in school. These regulations restrict the topics students are allowed to write about,
clothing they are allowed to wear, debates allowed to be held, assemblies, petitions, and more.
The lack of laws and policies on student expression cause a grey area in which it is unclear when
the line of freedom of speech is crossed.
In the United States of America, students have heavy restrictions on their freedom of
expression and speech. It wasnt until the court case Tinker v. Des Moines Independent
Community School Dist., 393 US 503 - Supreme Court 1969, that it was made official that
students dont leave their constitutional rights at the school doors (Tinker v. Des Moines). This
court case started the movement of increasing students freedom of speech, but it was Bethel
School Dist. No. 403 v. Fraser, 478 US 675 - Supreme Court 1986 that made the decision that
students freedom of speech does have limits (Bethel v. Fraser). It wasnt until these court cases
that all schools had an equal basis upon which to base their school speech policies.
Case Law
The United States has a lack of legislation that has been passed and made into laws that
creates set guidelines for student expression in schools. The United States Federal Government
has historically failed to implement legislation, regulations and policies protecting student
expression. The individual states have also failed to recognize the issue in the lack of laws,
regulations and policies. Conflicts and arguments have traditionally been decided by local
courts, individual school boards, and the administrators of the schools.

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Federal
Tinker v. Des Moines Independent Community School Dist., 393 US 503 - Supreme
Court 1969. A group of students and parents had a meeting to discuss wearing black armbands
to protest the current Vietnam War, and decided to wear them throughout a specific period of
time. The principals heard word of this and quickly created a policy banning these armbands and
determined that a student would be asked to remove the armbands, and if they refused, they
would be suspended until the students would no longer wear the armbands to school. Three
students went to school wearing the armbands and refused to take them off until the end of the
specific time period. Consequently, they were suspended. The students parents appealed the
suspension, and the case went up the system until it was reviewed by the Supreme Court. The
principals defense was that they believed these armbands could cause disorder and disturbances,
but there was no evidence of this happening during the event. It was ruled as a violation of
students 1st Amendment Right of Freedom of Speech and set the precedent that students dont
shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"
(Tinker v. Des Moines).
Papish v. Board of Curators of Univ. of Mo., 410 US 667 - Supreme Court 1973. A
student from the University Of Missouri School Of Journalism had been expelled for the
distribution of a newspaper which violated the Board of Curators bylaw which prohibited any
newspaper from "containing forms of indecent speech" Papish v. Board). The Supreme Court
decided state colleges and universities are not enclaves immune from the sweep of the First
Amendment." And that "clear that the mere dissemination of ideas - no matter how offensive to
good taste - on a state university campus may not be shut off in the name alone of 'conventions
of decency'"(Senat, 2013).

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Bethel School Dist. No. 403 v. Fraser, 478 US 675 - Supreme Court 1986. A
mandatory student assembly was held in order for student elective council nominations to be
held. A student, Matthew N. Fraser, delivered a speech to nominate his candidate. Throughout his
speech, he used elaborate, graphic, and explicit sexual metaphors. Before the delivery of the
speech, two teachers whom he practiced his speech with told him it was "inappropriate and that
he probably should not deliver it It was ruled that a school can restrict a students speech if it
includes lewd, vulgar, and plainly offensive language. "The constitutional rights of students in
public school are not automatically coextensive with the rights of adults in other settings"
(Bethel v. Fraser).
Hazelwood School Dist. v. Kuhlmeier, 484 US 260 - Supreme Court 1988. A
Journalism II class, which was in charge of creating a school newspaper, funded by the school
and reviewed by the principal before publication, submitted their rough drafts for review. The
principal stated that topics of the articles, divorce and the effects on students and teen pregnancy,
were inappropriate for some of the students as they were younger. He also worried that the
identities of some of the people in the articles would be revealed. The newspaper did not have
enough time to change out these articles. They would either print the four page newspaper
without the articles or a six page newspaper with the two articles, or not publish at all. The two
writers, who were students, believed this was a violation of their freedom of speech and press
and brought the situation to court. The case found its way all the way to the Supreme Court
which ruled that a school may censor a school sponsored newspaper if the content is viewed as
not age appropriate because a situation as such "must be `applied in light of the special
characteristics of the school environment'" (Hazelwood v. Kuhlmeier).

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Morse v. Frederick, 127 S. Ct. 2618 - Supreme Court 2007. A student unfurled a 14foot banner bearing the phrase "BONG HiTS 4 JESUS" at a school sponsored event to watch the
Olympic Torch Relay as it passed in front of the school. The banner was confiscated and the
student suspended after he refused to take it down. This was brought to court by student. This
case ended in the Supreme Court where it was decided that the banner was not a form of free
speech as it was not advocating for a political or religious reason. This left for it to be assumed
that it was to promote illegal drug use, which was against school policy (Morse v. Frederick).
Virginia
Pleasants v. Com. (Va. 1974). A student in a public school has First Amendment rights
which he can freely exercise, but, in exercising those rights, he may not do so in a manner which
will materially and substantially interfere with discipline and good order in the operation of the
school or with the rights of others. (Ernest, 2010) As duly authorized agent of school board,
the principal was required to supervise teaching and maintain order and discipline in the school
and was vested with inherent power to revoke, for good cause, the right of any student to remain
upon school property when that student, alone or in concert with others, disrupted regular school
activities or the maintenance of good order and discipline (Westlaw Volume 16B, 2013).
C.A.4 (Va.) 2004 Wofford v. Evans. While students do not shed their constitutional
rights at the schoolhouse gate, full panoply of constitutional rules does not apply with the same
force and effect in the schoolhouse as it does in enforcement of criminal laws (Westlaw Volume
16B, 2013).
E.D. Va. 2004 Ashby v. Isle of Wight County School.

Even if school board ratified

high school principals decision to exclude students performance of religious song from

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graduation ceremony, such that student could bring 1983 action against school board violation
of students First Amendment right to free speech, school board had a compelling interest in
prohibiting religious presentation at graduation which would allow the school board to enforce a
content-based exclusion (Westlaw Volume 16B, 2013).
W.D.Va. 2007 Raker v. Frederick. High School regulation that virtually banned
circulation of all written communication during the instructional day, including during lunchtime
and between classes, violated Tinker disruption standard for free speech: by devising policy that
limited the distribution of non-school material to before and after the school day without any
history or reasonable fear of literature distribution materially disrupting class work or involving
substantial disorder or invasion of the rights of others, school district acted with merely a remote
apprehension of disturbance rather than be specific and significant fear of disruption (Westlaw
Volume 16B, 2013). High school regulation that virtually banned circulation of all written
communication during the instructional day, including during lunchtime and between classes,
violated free speech under forum analysis, regardless of whether school hallways and cafeteria
were classified as closed fora or limited public fora (Westlaw Volume 16B, 2013).
E.D. Va. 2008 A.V. v. iParadigms. The rights of students in public school are not
automatically coextensive with the rights of adults in other settings and the rights of students
must be applied in light of the special characteristics of the school environment (Westlaw
Volume 16B, 2013).
West Virginia
S.D. W. Va 1971 Lambert v. Marushi. Regulations limiting students rights to free
choice of hair style can be validated only in instances where school officials can show a

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reasonable relationship between the forbidden style and the health, welfare, morals and discipline
of the student community (Ernest, 2010). Where school officials failed to show that plaintiffs
long hair style actually created disciplinary problem within the school prior to the time of his
suspension for violation of school dress code forbidding, among other things, long hair on male
students, school officials mere fear that relaxing of ban against long hair would lead to
disciplinary problems was insufficient justification for deprivation of constitutionally protected
rights, and long-haired male student was entitled to readmission (Westlaw Volume 16B, 2013).
S.D.W.Va. 2005 Bragg v. Swanson. Constitutional rights of students in public school
are not automatically coextensive with the rights of adults in other settings (Westlaw Volume
16B, 2013).
S.D. W. Va 2009 Brown ex rel. Brown v. Cabell County. A student had written on his
hands Free A-Train which referred to the nickname of a student whom was recently expelled.
This expelled student was thought to be a gang member and had been charged armed robbery
and attempted murder. The student who had written the slogan on his hands was suspended,
because even though the action was not hostile itself, it was a part of a larger context of hatred,
violence, intimidation, and hostility. This cause reasonable fear of a disturbance being caused by
this slogan, thus his suspension was not a violation of his First Amendment rights. School
administrators have a duty to facilitate education and maintain order and discipline (Westlaw
Volume 16B, 2013).
C.A.4 (W.Va.) 2011 Kowalski v. Berkeley County Schools. Because of the special
characteristics of the school environment, school administrators have some latitude in regulating
student speech to further educational objectives (Westlaw Volume 16B, 2013).

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Case Analysis
Tinker v. Des Moines was one of the first student expression cases to go to the Supreme
Court, and it set the precedent that students were allowed to have freedom of speech. Papish v.
Board had set the precedent that students in college were allowed to have freedom of expression
in press even if vulgar. Bethel v. Fraser set precedent that high school students may not speak
vulgar or obscene language even in student political elections as it is not a true form of
expression. Hazelwood v. Kuhlmeier followed with that school may sensor controversial topics in
high schools newspapers even if they do not contain vulgar language. Morse v. Frederick
allowed high schools to censor students if the expression shown is not for political, religious, or
etc. reasoning. All of these set Federal precedents over the whole country with any smaller
details to be left up to the individual states.
Within Virginia, after the case of Papish v. Board, the case of Pleasants v. Com. set that
students do hold 1st Amendment rights, but may not use them to disturb the classes and education
of other students. Before Morse v. Frederick, Ashby v. Isle of Wight allowed to keep students
from religious song during graduation ceremonies. Within the same year as Morse v. Frederick,
Raker v. Frederick schools may not restrict written forms of communication outside of the
classrooms, even within the halls of the school. Shortly after this decision, the A.V. v. iParadigms
stated that students dont have the exact same rights as adults, even with their 1st Amendment
rights.
West Virginia, though, had a different student body which had different needs in
regulations. This lead to different decisions in the court cases. Two years after Tinker v. Des
Moines, the case of Lambert v. Marushi stated that schools may not regulate males hair length or
style unless reasonable fear of danger. In 2005, Bragg v. Swanson ruled similar to Virginias A.V.

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v. iParadigms, in that students do not have the same rights as adults. In Brown v. Cabell, if a
display presented by a student can directly be connected with dangerous activities or may cause
dangerous backlash, a school may prohibit it, which followed up on the precedent from Morse v.
Frederick. In 2011, Kowalski v. Berkeley states that schools have different student bodies and
needs, which allows different schools to have different policies.
Stakeholders
Students
Students were the center of this controversy. They were to be the future of the world,
being groomed to continue society, but with this, they have to be tactful advocates, and respectful
protestors. These children and teens were taught that they have a right to express their opinions
as long as they do so in a way that will not materially and substantially disrupt classes or other
school activities. Even with these increasing freedoms, prohibited expression still exists. If a
student held a protest on the school steps and blocks the entrance to the building, school officials
have the authority to stop them. They have the authority to also stop them from using language
that the administration thought was "vulgar or indecent. Students have the right to stay seated
during the pledge of allegiance as long as they are silent. Even with support for increasing
freedoms, educators still control the books allowed in the classroom, topics to write and talk
about, clothing worn, and what constitutes a joke or a real threat.
A student was allowed to write In your own publication, it's your right to criticize how
the people who run your school do their jobs. But you can't print something about your teacher
that you know or should know isn't true that makes him or her look bad. That might be libel, and
that could get you into trouble (ACLU, 2015). Students have to focus on all of this and

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academics, sports, clubs, family, jobs, volunteering, and so much more when making decisions
on how to approach communicating their feelings and opinions.
Teachers
Teachers have historically prepared students for college, and within college students have
had fewer restrictions on what they say or protests. Student voices have been able to make a
major impact on society. It has given the perspective of the next generation who will have to deal
with the aftermath of what the current in-charge generation is doing. By teaching students history
and how to handle these issues properly, history may not repeat itself. Students have
demonstrated the need to be taught how to file a petition, how to legally organize a march, how
to make a difference, how to join an organization, and that their voices matter.
Teachers have had to keep neutral ground when teaching. They needed to allow students
to develop their own opinions while being informed. Not only this, but teachers had to keep
arguments from happening and prevent any disruptions in the classroom.
Parents
Parents, since the beginning, wished for their children to be in a safe and healthy
environment for education. There are parents, however, who wished for their children to be kept
out of controversial topics. They entrusted the schools with their children for a third of each work
day. They trusted that the school would teach them the right things while faculty stayed neutral
on certain topics. Some families have specific beliefs and do not want their children to be
exposed to counter subjects.

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School Board
The School Board had to make decisions on what was best for everyone, even if one side
did not see it that way. The Board had to keep equality and general peace while still realizing that
each school had a different student population with different needs and backgrounds. The Board
had take into account any high-risk events or actions and take steps to prevent them while still
following State and Federal Laws, such as School officials may not censor only one side of a
controversy. If they permit an article in the official school paper that says that premarital sex is
bad, they may not censor an article that says premarital sex is good (ACLU, 2015). Private
school are given more allowance for restrictions then public schools (ACLU, 2015). After recent
school tragedies, discipline and expulsions of students increased because of expression of certain
opinions. Schools have taken what was originally thought of as foolish joking of children as
serious threats (Nevin, 2015).
Law Makers and Court System
The court system and states have determined only three types of student speech: vulgar,
lewd, obscene and plainly offensive, school-sponsored, and all other student speech (First
Amendment Schools, 2015).
The judiciary has recognized that defamatory, obscene, and inflammatory
communications are outside the protective arm of the First Amendment. In addition, as
discussed below, lewd and vulgar comments and expression that promote illegal activity
for minors are not protected in the public school context. Also, commercial expression,
although constitutionally protected, has not been afforded the same level of First

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Amendment protection as has speech intended to convey a particular point of view

(Student Expression, Association, and Appearance).
The government, including public school boards, must have a compelling justification to
curtail citizens expression, even of unpopular viewpoints (Student Expression, Association, and
Appearance). [F]ederal courts should exercise particular restraint in classroom conflicts
between student and teacher over matters falling within the ordinary authority over curriculum
and course content (ASCD, 2015).
Current Issues
As of 2016, this topic is still being discussed as a current controversial debate. Students
speak out every day, either against something they believe is wrong or just because they are
angry. The students of Austin High School in Scott County, Indiana, knew it was their duty to
raise awareness on HIV, and they created classes and pamphlets to raise awareness (Student
Voices, 2015). The students of Amherst College, within a year, held dozens of marches, protest,
lectures, and petitions on important topics and issues. They lobbied for legislation to change
some school policies (Editorial Board, 2015). Students have been empowered to speak up. A 4th
grader, Sydney, went to the Hernando County School Board meeting and spoke up against
standardized testing (Smoot).
Controversies and conflicts between policies and events continued to recent times. A
young Muslim boy, Ahmed, in a Texas high school created a clock and was arrested because it
was perceived as a threat (Ashely, 2015). The school stated that students are not allowed to bring
prohibited objects, Ahmed was bringing it to his engineering teacher (Biggs, 2015). The school
had not followed proper bomb procedures when they arrested him and confiscated the clock,

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then proceeded to claim it was a hoax bomb. Ahmed decided to speak up about the schools unfair
discrimination. A middle schooler in Ohio, Sophie, had worn a t-shirt with the word Feminist
across it for her class picture. The shirt was photo-shopped to remove the word. The principal,
Kendra Young, had told Sophie that it was because it was offensive, but told media that it does
not violate school policy but that she wanted to avoid unintended controversies for the students
who also bought the picture (Chittal, 2015).
Recently, within the Commonwealth of Virginia, there was a bill signed into law by
Virginia Governor Terry McAuliffe, which prohibited universities and colleges from having
designated free speech zones. These are areas in the school where debates are held but is
subject only to reasonable, content- and viewpoint-neutral time, place, and manner restrictions.
This law was passed in order to prevent the freedom of speech for students only being restricted
to a few small courtyards within an entire university (Cohn, 2014).
A senior student, Morgan, whose employer wanted to congratulate her on her hard work
in school and work bought a page in her schools yearbook for her. Her family, employer, and
Morgan wished to show her patriotism for the U.S. so they found a backdrop that looked like the
U.S. flag. The photo proceeded to look like she was standing on the bottom portion of the flag
even though it cannot be seen, the school therefore deemed it disrespectful and inappropriate for
the year book and banned it, even though she was not actually standing on the flag and it was
only a backdrop (Bertsche, 2015).
Ethical
According to Kant, people have a duty, which is the distinction between I want and I
ought. A students duty is to prepare for life after school and to learn how to become a

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responsible adult (Cavalier, 2002, para. 6). In order to do so a student must learn how to be
involved in politics and current and import issues. They must learn how to speak up and make a
difference. Further looking into the definition of reason, it is the intellectual ability to apprehend
the truth cognitively, either immediately in intuition, or by means of a process of inference
(Kermerling, 2011). Students must expand their cognitive abilities so they can learn more and
become more successful in life. Without doing so, they will not be able to ask much needed
questions or come to important conclusions.
Cases are never definitely outlined with specific rules. Since it is so vague, a teacher must
tread carefully on what they teach and how they do it, because they have to be politically neutral
(Phillips, 1994). Teachers are also involved in this because they have to show students how to
express themselves, but also to respect teachers. Confucian is the ethics of respecting your
superiors and creating a balance of life from this. Teachers jobs are to prepare students for the
life ahead and to show them how to be responsible adults. According to Kant, in order to get
what you want you must do the actions that lead up to it, meaning in order for teachers to do
their jobs, they must allow students to voice their opinions and show them how to take action and
make a change (Cavalier, 2002, para. 9).
Student voices can make a major impact on society; it gives the perspective of the next
generation who will have to deal with the aftermath. By teaching student history and how to
handle these issues properly we keep from having history repeat itself. Students need to be taught
how to file a petition, how to legally organize a march, how to make a difference, how to join an
organization, and that their voices matter.

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Positive and Negative Aspects of the Issue

Positives
Students who have a more neutral learning area will be able to see both sides of the issue
in a deeper perspective and then be able to create a personal opinion without the influence of
others. A more neutral position will also prevent future arguments and possible disruptions in the
classroom. This will teach students an increased level of respect.
Negatives
The lack of complete guidelines not only affects students but also their parents and
families. Students who are unable to speak out will feel oppressed, ignored and unimportant
which can lead to aggression at home, depression, and anxiety. This leads to an unhealthy life at
home, which affects not only the student, and their parents, but their whole family. Not only this,
but students will not learn how to speak up about a situation that they know is wrong because
they are ill-equipped to do so. They will not learn how to advocate for what they love.
Conclusion
Throughout the years, high school students have been prepared to become functional
adults in society and to be ready for college. Even with this, high school students do not have the
same rights as adults, but as soon as they turn 18 it is immediately expected that they know their
rights as adults. High school students were never taught or given the option to use these rights,
thus they will not know how or when to properly use them. They are taught to keep most of their
views to themselves. It takes a student getting in trouble and bringing the case to court for
students to determine what they are allowed to do. Even without the court cases, it is up to
teachers and administers to use their personal views to determine what is right and wrong, or

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what is appropriate for the school. Congress and the state law makers do not like to interfere with
school policies on freedom of speech and expression, and it takes months of court cases for a
student to get their side of the issue heard. Yet these issues are not even told to future students.
They are not told their current rights or how to use them. So, where do we go from here?

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