Academic journal article Teacher Education Quarterly

Secondary Preservice Teachers' Knowledge of the First Amendment

Academic journal article Teacher Education Quarterly

Secondary Preservice Teachers' Knowledge of the First Amendment

Article excerpt

The First Amendment to the Constitution is a cornerstone of American democracy and students, like all members of the nation, are entitled to its protections. Justice Fortas, writing for the majority in Tinker v. Des Moines (1969), described how the First Amendment protects students at school when he wrote,

   First Amendment rights, applied in light of the special
   characteristics of the school environment, are available to
   teachers and students. It can hardly be argued that either students
   or teachers shed their constitutional rights to freedom of speech
   or expression at the schoolhouse gate. (p. 2)

However, the rights protected by the First Amendment can clash with the need to provide order at school and to effectively educate students (Imber & Geel, 2001). Clashes such as these require teachers to understand the complexity of First Amendment issues in their classrooms (Hills, 2003). Lacking an understanding of the complexity of teacher responsibilities in dealing with First Amendment issues can lead to lawsuits which can damage teachers' careers, cost school districts millions of dollars in legal fees, and have profound effects on the education of students.

While the number of lawsuits involving schools and teachers leveled off during the 1990s, cases involving the First Amendment rights of students have increased in this decade, and the fear of litigation persists on the part of politicians, principals, and teachers (Lupini & Zirkel, 2003; Schachter, 2007; Wagner, 2007). According to a poll conducted by Harris Interactive in 2004, a majority (64%) of the teachers surveyed were concerned about the risk of lawsuits or legal challenges, and nearly two-thirds of teachers had the same or higher levels of concern about the possibility of facing a lawsuit as they did about results on standardized tests (Harris Interactive, 2004). Tracking litigation against teachers and schools is difficult because most studies tend to focus on court decisions and do not track the costs inflicted on school districts from cases that are threatened, filed, or settled (Hutton, personal communication, 2004). According to Mark Goodman, executive director of the Student Press Law Center, due to a lack of proper education, many administrators and teachers ignore laws that protect student speech until families force them to back down using lawsuits or the threat of a lawsuit (Billups, 2007).


Several well-publicized cases decided by the Supreme Court have established tests for when administrators and teachers can or cannot limit the First Amendment rights of students. However, these tests require that school personnel understand the Court's decisions and apply that understanding to their unique situation. In making these decisions, the Supreme Court has identified four main criteria for limiting student expression in school: the expression must be associated with the school, the expression must be considered a "true threat," it must be determined to be obscene, or the expression must be capable of causing a "substantial and material disruption" to school activities (Dowling-Sendor, 2001).

Expression Associated with the School

The Court has ruled that expression associated with the school or sponsored by the school does not have the same protection as individual student expression and can be regulated by school officials. The primary justification of limiting student expression is "to ensure that the student expression does not interfere with the educational mission of the school" (Taylor, 2000, p. 7). In Morse v. Frederick (2007), the Court upheld a school's decision to punish a student who held a banner reading "Bong Hits 4 Jesus" even though the student was standing across the street and not actually on school property. The Court's justification in Morse was that student speech directed at the school equals speech that occurs "at" school. Other courts have regarded Morse as a broad license to extend school authority beyond school boundaries when it comes to limiting expression (LoMonte, 2009). …

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