Generally speaking, most courts have divided student speech into these three categories:

I. Vulgar, lewd, obscene, and plainly offensive speech (Fraser standard)¹

II. School-sponsored speech (Hazelwood standard)

III. All other student speech (Tinker standard) ²

To help clarify how courts review the actions of students and school officials, let’s take an example involving the controversial symbol of the Confederate flag.

If a student were disciplined for wearing a piece of Confederate flag clothing to school, a reviewing court would likely begin by applying the Tinker "substantial disruption" standard. Why? Because the speech is student initiated (not school sponsored) and is not lewd.

Under Tinker, the court would have to determine whether the school officials could have reasonably forecasted a "substantial disruption" of the school environment, perhaps based on past incidents of racial tension, or if the school officials overreacted out of an "undifferentiated fear or apprehension."

School officials, however, might argue that the expression should be banned based on the more deferential Fraser standard. In one recent case, in fact, a federal appeals court agreed with this logic, reasoning that "the more flexible Fraser standard applies where the speech involved intrudes upon the function of the school to inculcate manners and habits of civility."³

More recently, a federal appeals court ruled that students could not be ordered to remove clothing adorned with Confederate flags absent a reasonable fear of disruption based on past experience. Even then, the court indicated that school officials must be willing to apply the ban evenhandedly to other racially divisive symbols, such as a Malcolm X T-shirt.⁴

To use a slightly different example, imagine if a principal decides to change her school's "Johnny Reb" mascot because she has received complaints from members of the community, who believe the symbol to be racially insensitive. Now which standard should apply?

A reviewing court would likely apply the Hazelwood standard because the mascot is a form of school-sponsored speech. In fact, in a decision based on these details, a federal appeals court reasoned that "a school mascot or symbol bears the stamp of approval of the school itself" and concluded that the principal "eliminated the symbol based on legitimate concerns."⁵

Finally, imagine that a group of students published a story about the Confederate flag and how students viewed the symbol in a privately published, underground student newspaper. Which standard would apply here?

In this case, the Tinker standard would apply, because the newspaper is student initiated, rather than school sponsored.

¹ A few courts have determined that the Fraser case only applies to vulgar student speech that is school sponsored. See D.G. v. Independent Sch. Dist. No. 11, 2000 U.S. Dist. LEXIS 12197 (N.D. Okl.)(8/21/2000).

² See Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992).

³ Denno v. Sch. Bd. of Volusia County, 218 F.3d 1267 (11th Cir. 2000).

⁴ Castorina v. Madison County Sch. Bd., 246 F.3d 536 (6th Cir. 2001).

⁵ Crosby v. Holsinger, 852 F.2d 801, 802 (4th Cir. 1988).

Last updated: Wednesday, September 8, 2010 | 23:34:48