Could an elementary school bar a student from distributing anti-abortion material in 1995?

Official title

Concerning whether an elementary school student has a right, Under the First Amendment of the United States Constitution, to distribute anti-abortion material at his school.

Requester

The Honorable Joe Wilson, Senator, District No. 23, Lexington County

Plain-English summary

A senator asked whether an elementary school student had a First Amendment right to distribute anti-abortion material at school. The 1995 informal opinion did not decide whether the particular distribution could be restricted. It said that answering required review of the material and circumstances, factual work outside the AG opinion process.

The letter surveyed cases protecting student expression while recognizing school authority over speech in the educational setting. It observed that courts had treated student age as relevant and that more limits might be permissible in elementary schools than high schools. It did not assess the merits of the material or the wisdom of any school policy.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG say the school could prohibit these particular leaflets? A: No. The letter said it lacked the factual review needed to decide whether this material could be barred.

Q: Did the opinion say students have no speech rights at school? A: No. It cited cases protecting student expression, alongside cases recognizing limits in school settings.

Q: Why did the student’s elementary-school age matter? A: The letter cited authority treating age as relevant and suggested that more speech restrictions might be permissible in elementary school.

Q: Did the AG evaluate the message in the material? A: No. It expressly declined to express a view on the merits of the material or the wisdom of restricting it.

Background and statutory framework

The letter discussed Tinker v. Des Moines Ind. community Sch. Dist. on disruption, Burch v. Barker on review of student publications, and cases concerning school-sponsored speech and the age of students. It stopped short of applying those principles to the unreviewed material.

Citations and references

• Tinker v. Des Moines Ind. community Sch. Dist.
• Burch v. Barker

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-18-1995-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/95aug18wilson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

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August 18, 1995

The Honorable Joe Wilson
Senator, Lexington County
P.O. Box 142
Columbia, South Carolina 29202
Dear Senator Wilson:
You have requested the advice of this Off ice as to whether an elementary school student has a right, under the First Amendment of the Qnited States Constitution, to distribute anti-abortion material at his school. Set forth below is some case law which may be of guidance concerning this question. In Tinker v. Des Moines Ind. community Sch. Dist., 393 us 503, 89 s.ct. 733, 21 L.Ed.2d 731 (1969), the Court indicated that restriction of expression by students on school property as to matters such as the Vietnam conflict or opposition to it would at least require " ... a showing that the students' activities would materially and substantially disrupt the work and discipline of the school." 393 us 513, 89 s. Ct. at 740; See Baxter by Baxter v. Vigo County School Corp., 26 F.3rd 728, 737 (7th Cir. 1994). Burch v. Barker 861 F.2d 1149 (9th Cir. 1988), cited Tinker in reviewing a lengthy history of cases in this area for the purpose of considering a school policy for pre-distribution review of written materials for censorship purposes. The Court found that the policy was of unlimited scope and duration, was overbroad and violated the students' First Amendment rights as to a non- school sponsored publication. However the court expressly did not decide "under what more limited circumstances, if any, a school may impose a policy of pre-distribution review." Id., 861 F.2d at 1159. Nevertheless, as follows, the Supreme Court and other courts have noted that some limits exist on expression in the public schools: The United States Supreme Court has recognized that ... the First Amendment rights of students in the public schools "are not automatically co-extensive with the rights of adults in other settings," Bethel School District No. 40 v. Fraser, 478 us 675, 682, 106 S.Ct. 3159,

RDIBERT

c. Df'~~IS BL'ILDl'IG

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Joe Wilson, Senator
August 18, 1995
Page 2
3164, 92 L.Ed.2d 549 (1986), and must be "applied in light of the special characteristics of the school environment .... " Hazelwood School District v. Kuhlmeier, 484 us 260, 266, 106 S. Ct. 562, 567,98 L.Ed.2d 592
{1988).

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"[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," Id., fi83, 106 s. Ct., at 3164, rather than with the Federal Courts. Id, 484 US 267, 108 S.Ct. at 567. Hazelwood addressed issues concerning a high school newspaper published by journalism students under the supervision of a teacher, and Bethel addressed issues of a 11 lewd and indecent 11 nominating speech by a high school student at a student assembly. Neither of these factual circumstances are the same as the one presented by your request, but these cases do emphasize that schools retain some degree of authority with respect to the appropriateness of speech in the school environment. Similarly, in Planned Parenthood v. Clark County School District, 887 F.2d 935 (9th Cir. 1989), the Court upheld the school district's refusal to publish Planned Parenthood's advertisement in school- sponsored publications. Significantly, the Court stated that "nowhere [has the Supreme Court] suggested that students, teachers or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environment for ... unlimited expressive purposes." 887 F.2d at 941, quoting from Perry Education Association v. Perry Local Educator's Association, 460 us 37, 103 S . Ct . 9 4 8 , 7 4 L. Ed. 2 d 7 9 4 (19 8 3 ) . the More recently, Baxter v. Baxter, supra, found that Supreme Court has indicated in Fraser and Hazlewood that "age is a relevant factor in assessing the extent of a student's free speech right in school .... "26 F.3rd at 738. Although the court did not articulate a standard for elementary school students, it clearly conveyed that more restrictions on speech may be permissible in that setting as compared to the high school setting. The 7th Circuit concluded that the plaintiffs had not demonstrated that an elementary school student had a "clearly established" right to wear an expressive t-shirt at elementary school. Id. In Tinker, supra, in which the wearing of an armband, was at issue, the setting was a high school rather than an elementary school. To determine whether the particular material at issue may be barred from distribution in an elementary school would require a

The Honorable Joe Wilson, Senator
August 18, 1995
Page 3
review of the material and the circumstances of its distribution; however, such investigation of factual matters is beyond the scope of opinions of this Office. ~ Atty. Gen. {December 12, 1983). Nevertheless, the above cases indicate that some restrictions on speech and distribution of material may be permissible in school settings and that a greater degree may be permissible in the elementary setting. Of course, this letter, does not, in any way, express an opinion about merits of the material being distributed or the wisdom of school policy in restricting it.

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I hope that the above case law will provide some guidance as to these matters. This letter is an informal opinion. It has been written by the designated Assistant Deputy Attorney General and represents the opinion of the undersigned attorney as to the specific questions asked. It has not, however, been personally reviewed by the Attorney General nor officially published in the manner of a formal opinion. I hope that this information is of assistance to you. Yours very truly,
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J. Emory SJl'(ith, Jr.

Assistant/Deputy Attorney General

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