Johnny can't read or write, but just watch him work: Assessing the constitutionality of mandatory high school community service programs

St. John's Law Review, Fall 1997 by Farrell, James C

Pico appeared to signal a judicial retreat from the notion, implied in Tinker, that schools should encourage student participation in the educational process as a means of facilitating the development of young adults into responsible citizens.31 The Court confirmed its shift towards adopting a more communitarian paradigm32 in Bethel School District No. 403 v. Fraser.33 In Fraser, a public school disciplined a student who delivered a speech nominating another student for a student government position. The student used sexual metaphors to describe his candidate's qualifications for office to the approximately 600 students present at the school assembly.34

The Supreme Court held that the First Amendment did not prevent school officials from disciplining students for using offensive language at school functions.35 The Court acknowledged the need to balance the students' freedom of expression in school against society's interest in "teaching students the boundaries of socially appropriate behavior."36 The Court recognized that the government could not restrict the free speech rights of adults under similar circumstances.37 The Court noted, however, that the rights of students are not necessarily coextensive with the rights of adults, and concluded that the manner of speech appropriate for a school assembly or classroom is a decision within the exclusive domain of school officials.38

The Court, while professing fidelity to Tinker, considerably limited its usefulness for protecting student speech in Hazelwood School District v. Kuhlmeirer.39 In Hazelwood, the principal of Hazelwood East High School ordered the faculty advisor of the student newspaper to remove two articles from the next edition of the school paper; one regarding pregnancy and the other on the effect of parental divorce upon students.40 Members of the journalism class who wrote and edited the school newspaper brought an action against the principal and the school district.41 The Court concluded that school authorities could restrict expression in the school newspaper if such restrictions were reasonable and held that it was reasonable for the principal to reject the articles at issue on the basis that they did not meet the standards and skills for which the newspaper had been reserved.42

The Court began its analysis with reference to Tinker and the protection of students' First Amendment rights. The Court noted, however, that the "special characteristics of the school environment" grant school administrators the duty and power to alter such rights as they deem necessary in order to serve the goal of educating students.43 The Court distinguished Hazelwood from Tinker, emphasizing that the latter involved symbolic student speech in a non-curricular setting while the students in Hazelwood were attempting to use a school-sponsored publication to convey information and various opinions.44 The Court thus distinguished between tolerating student expression, as in Tinker, and "lend[ing the school's] name and resources" to student expression.45 The Court asserted that when a newspaper is published by the school and prepared by students under the direct supervision of a teacher, "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."46