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School theatre and the First Amendment

How the courts have defined student speech within the first amendment

The United States Supreme Court has never heard a case involving a school theatre production, but in a series of rulings beginning in 1969 it has defined the extent of First Amendment protection of student speech in a school setting.

In December, 1965, three Des Moines, Iowa high school students were suspended from school for wearing black armbands to protest the Vietnam War. They sued, and ultimately Tinker v. Des Moines Independent Community School District was argued before the Supreme Court. “The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says,” Justice Abe Fortas wrote in the majority opinion, handed down in 1969. The court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In Bethel School District v. Fraser (1986) the court limited the broad sweep of Tinker, drawing a distinction between the passive protest of wearing armbands and a student’s use of an “elaborate, graphic, and explicit sexual metaphor” in a speech during a school assembly. “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,” Chief Justice Warren Burger wrote in the majority opinion.

When the principal of Hazelwood East High School near St. Louis ordered articles about pregnancy and divorce removed from the school newspaper in the spring of 1983, three journalism students sued, alleging their First Amendment rights had been abridged. The Supreme Court held in Hazelwood School District v. Kuhlmeier, 1988, 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…. It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment… require[s] judicial intervention to protect students’ constitutional rights.”

There is one case at the appellate level just below the Supreme Court that speaks directly to the question of play selection and the First Amendment, and it’s not good news for theatre educators. In Boring v. Buncombe County Board of Education(1998), the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, considered the First Amendment implications of North Carolina drama teacher Peggy Boring’s disciplinary transfer after a dispute with her principal over her selection of the Lee Blessing play Independence for production. The court concluded that there were none, and that the conflict over the play “does not present a matter of public concern and is nothing more than an ordinary employment dispute.”