STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 26, 1969

Dr. Gordon A. Diedtrich
State Superintendent Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-47

Freedom of speech in public schools

Dear Dr. Diedtrich:

You have requested my official opinion upon the following question:

"Does the Federal constitutional rights of freedom of speech permit a student in a public school to express personal opinions and convictions relative to sectarian doctrines in classroom discussions and during free time periods in public school?"

This question has been repeatedly answered in the affirmative by the Supreme Court of the United States, and in the recent case of Tinker v. Des Moines Community District School, 21 L ed 2d 731, the court noted with approval the case of Keyishian v. Board of Regents, 385 US 589, 17 L ed 2d 629, 87 S Ct 675, wherein the court stated:

"'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American Schools.' Shelton v. Tucker, 364 US 479, 487, [5 L Ed 2d 231, 236, 81 S Ct 247]" The classroom is peculiarly the 'market-place of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection ...."

Also, in this same case, Justice Fortas made the following statement:

"The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among these activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school, but it is also an important part of the educational process. A student's rights therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so 'without materially and substantially interfering with appropriate discipline in the operation of the school' and without colliding with the rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech. Cf. Blackwell v. Issaquena City Bd. of Educ. 363 F 2d 749 (CA5th Cir. 1966),

"Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom."

Respectfully submitted,

Gordon Mydland
Attorney General