This article focuses on freedom of expression and public education. The boundaries and limits of students' rights to free expression in public schools are discussed. This article describes the relationship between freedom of expression in schools, the First Amendment, and the United States Supreme Court. Areas of inquiry include symbolic dress, free speech, and religious expression. The issues associated with government regulation and oversight of religious expression in public schools are addressed.
Keywords American Civil Liberties Union; Bill of Rights; Equal Access Act; Establishment Clause; First Amendment; Free Exercise Clause; Free Speech; Freedom of Expression; Libel; Public Education; Religious Expression; Slander; Supreme Court; Symbolic Clothing; Symbolic Dress; Symbolic Speech
In the United States, freedom of expression is guaranteed and protected by the First Amendment of the United States Constitution. The First Amendment, part of the Bill of Rights, prohibits the national government from limiting freedom of expression. The First Amendment states that the government and “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Freedom of expression refers to a person's right to say or publish what he or she believes and comes with societal and legal parameters. For example, the U.S. Supreme Court has named numerous instances of impermissible speech. Throughout the twentieth century, the Supreme Court ruled on conflict surrounding issues related to freedom of expression, such as free speech, free press, obscenity, libel, slander, symbolic speech, and commercial speech, and, as a result, has defined the parameters of free speech acceptable in society and in public schools.
The U.S. democratic process invites and facilitates questioning and challenging the rights and liberties described in the U.S. Constitution and the Bill of Rights. The U.S. Constitution and the Bill of Rights are living documents subject to ongoing reinterpretation. New environments and scenarios arise that require constitutional interpretation. Public education is a prime location of constitutional challenge and interpretation. Public institutions are held accountable for abiding by and promoting the laws of the nation. Public education and public schools are subject to the laws as specified in the U.S. Constitution. The public school system, in the twentieth century, has become a location of constitutional challenge and interpretation. The U.S. public education system, a relatively new and still evolving public program, is often in tension with constitutional law. Throughout the twentieth century, the Supreme Court has both upheld the rights of administrators to censor students' rights for free expression and the rights of students themselves. The corresponding tension is a ubiquitous part of American society. The current socio-political climate creates students who know their rights and administrators charged with protecting the safety of diverse students and communities.
Students and teachers have significantly different experiences of and protections of freedom of expression in public schools. Students' rights to freedom of expression is, for the most part, protected and guaranteed in public schools. Exceptions to student freedom of expression rights do occur. U.S. courts have found that school officials can censor student expression only when student speech is a substantial disruption of school activities or is determined to be vulgar, profane, or offensive. In contrast to the student experience, teachers, as employees, have their freedom of expression severely curtailed in the public school setting. U.S. courts have ruled that teachers may not introduce personal opinion or belief into their teaching. The First Amendment does not protect teacher speech in a public school setting (Simpson, 2007).
The following section provides an overview of the relationship between freedom of expression, the Bill of Rights, and the United States Supreme Court. This section serves as the foundation for later discussion of the connection between students' rights to free expression and public education. Areas of inquiry include symbolic dress, free speech, and religious expression. The issues associated with religious expression in the public schools, particularly the Presidential Guidelines on Religion in the Schools, are addressed.
Freedom of Expression, the Bill of Rights
The Bill of Rights, which makes up the first ten amendments to the U.S. Constitution, was added to the U.S. Constitution in 1791. The Bill of Rights, which includes ten Constitutional amendments from 1791, three post Civil War amendments, and the Nineteenth Amendment from 1920, protects individual rights. The framers of the Bill of Rights, notably James Madison and Thomas Jefferson, were influenced by the Age of Enlightenment. The First Amendment illustrates the framers' high opinion of reason, truth, inquiry, liberty, and questioning of authority. The First Amendment concerns and protects freedom of speech, association, assembly, press, and religion.
First Amendment stakeholders, including policymakers, students, teachers, religious groups, and legal groups, have taken their challenges on freedom of expression issues, such as prayer, dress, and student publications, to the U.S. Supreme Court. The Constitution and the Supreme Court allow for and encourage Americans to test and establish the social and legal parameters of freedom of expression. The U.S. system of government includes two forces: Majority rule through elected representatives and limitation of power to insure individual rights. First Amendment cases are often brought by legal rights organizations such as the American Civil Liberties Union (ACLU). The American Civil Liberties Union, and other legal defense organizations, believes that freedom of expression requires constant legal vigilance and protection. The American Civil Liberties Union, established in 1920, is a legal organization dedicated to protecting civil liberties such as first amendment rights, equal protection under the law, right to due process, and right to privacy.
Numerous First Amendment cases have been heard in the U.S. Supreme Court. These cases have created the law of the land. The history of the U.S. Supreme Court's protection of First Amendment rights is relatively short. In Abrams v. U.S. (1919), the Supreme Court ruled that speech acts could only be punished if the speech act presented a clear and present danger of imminent harm. Throughout the twentieth century, the Supreme Court heard freedom of expression cases. The Supreme Court has ruled that free speech protections include nonverbal expressions. Constitutionally protected symbolic speech includes works of art, t-shirt slogans, political buttons, music lyrics, and theatrical performances (“Freedom of Expression,” 1997).
The Supreme Court has also passed ruling on unprotected expression. The Supreme Court has found that government may place time, place, and manner restrictions on speech as long as the restrictions are reasonable. Examples include permits for public meeting or demonstrations. Limited exceptions to First Amendment protection were decided in the following cases. In Chaplinsky v. New Hampshire (1942), the Supreme Court ruled that the First Amendment does not protect fighting words intended to inflict injury or incite an immediate breach of the peace. In New York Times Co. v. Sullivan (1964), the Supreme Court held that defamatory falsehoods about public officials may be punished if the offended official can prove the falsehoods were published with malice. In Miller v. California (1973), the Supreme Court established three conditions that must be present if a work is to be deemed officially and legally obscene(“Freedom of Expression,” 1997). The conditions include the following:
• The work must appeal to the average person's prurient interest in sex.
• The work must depict sexual conduct in a patently offensive way as defined by effected community.
• The work, taken as a whole, must be considered to lack serious significant literary, artistic, political, or scientific value.
The U.S. Constitution does not guarantee the right to public education. Historically, public education has been the domain of individual state governments. In the second half of the twentieth century, control of public education began to switch from the state to the federal government. Areas of federal control include funding, administration, and standards. Public education in the United States, which began on a large scale in the twentieth century, is in constant tension and negotiation with the freedom of expression rights and liberties guaranteed in the Bill of Rights.
Civil Rights Act
The modern period of American public education, which began in the 1920s, is characterized by the rise of the testing movement, the development of adult education, the growth of progressive education, the influence of civil rights on education, the spread of federal aid to public schools, and the adoption of academic standards. Students' civil rights and civil liberties were expanded and clarified in the Civil Rights Act of 1964. The Civil Rights Act has the following goals:
• To enforce the constitutional right to vote; to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations;
• To authorize the Attorney...
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