I. Child Advocacy
A. School Law
2. Civil Rights
The First Amendment Protects a Student’s Right to Freedom of Speech, Even in School
Schools and school districts have authority to regulate speech in their schools. However, the First Amendment does protect the free-speech rights of students, to the extent appropriate in the school context. This article discusses the various holdings of the Supreme Court of the United States in cases involving the freedom of speech at school.
First Principles: The First Amendment in School
The Supreme Court has declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). However, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986). In other words, schools may regulate some speech even though the government could not censor similar speech outside the school. The rights of students “must be ‘applied in light of the special characteristics of the school environment.’” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker, 393 U.S. at 506).
The primary Supreme Court case regarding free speech at school involved political speech and is known as Tinker. In that case, when the principals of the city’s schools learned about plans by students to wear black armbands to school to protest the Vietnam War, the principals adopted a policy prohibiting students from wearing armbands at school. Students wore the armbands to school anyway and were suspended. They challenged the suspension in court, and the Supreme Court found that the students’ First Amendment rights were violated.
The Tinker rule is that a school district cannot prohibit a student’s silent, passive expression of political opinion, unaccompanied by any disorder or disturbance, where the expression does not interfere with the school’s work or collide with the rights of other students to be secure and to be let alone. The Supreme Court stated, “the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” Tinker, 393 U.S. at 511 (emphasis added).
Also in Tinker, the Supreme Court defined the scope of the school’s authority. “A student's rights . . . 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 interfer(ing) with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others.” Id. at 512-13 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). On the flip side of the same coin, conduct by the student, in class or out of it, which for any reason materially disrupts class work or involves substantial disorder or invasion of the rights of others is punishable.
Offensively Lewd and Vulgar Speech
Unlike political speech, the Supreme Court has decided that offensively lewd and vulgar speech in school is generally not protected by the First Amendment freedom of speech. In Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986), a public high school student made a speech at a school assembly in the form of an elaborate, graphic, and explicit sexual metaphor. The school suspended him for three days and removed him as a candidate for graduation speaker.
The student (through his father) sued the school district. The Court ruled in favor of the school district and found that it was “perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct [are] wholly inconsistent with the ‘fundamental values’ of public school education.” Id. at 685-86.
Speech That Promotes Illegal Drug Use
Yet another category of school speech that is subject to specific rules is speech that encourages illegal drug use. The case Morse v. Frederick, 551 U.S. 393 (2007) established the rule regarding illegal-drug speech at school.
At a school-sanctioned and school-sponsored event, a high school principal saw some of her students unfurl a banner displaying the words, “BONG HiTS 4 JESUS.” Interpreting the banner as promoting illegal drug use, the principal directed the students to take down the banner. One student refused, and he was suspended.
After unsuccessfully appealing his suspension through the school district, the student filed suit under 42 U.S.C. § 1983. The Supreme Court decided that the school district had not violated the student’s First Amendment rights. The Court’s conclusion was: “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, 551 U.S. at 396.
Some of the Justices of the Supreme Court joined the Court’s opinion on the understanding that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” Id. at 422 (Alito, J., concurring). It therefore seems probable that student speech protesting government policies on illegal drugs has First Amendment protection.
School-Sponsored Student Speech
A different rule controls school-sponsored student speech, or student speech that bears the school’s imprimatur. In Hazelwood, the principal of a high school refused to allow the school’s official newspaper to print stories about student pregnancies and about students’ parents’ divorces. Three members of the newspaper’s staff (Journalism II students) sued the school district.
In this context, the Supreme Court decided, “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.” Hazelwood, 484 U.S. at 273. This rule would apply to school newspapers, yearbooks, and other school-sponsored publications, among other contexts.
The Rules on Students’ Speech
Until the Supreme Court rules on another student speech case, the state of the law regarding First Amendment freedom of speech is as follows:
-When a student’s speech is school-sponsored, educators may exercise editorial control over the style and the content of the speech, so long as their actions are reasonably related to legitimate pedagogical concerns.
-The school may forbid speech that can be reasonably interpreted to encourage illegal drug use.
-The school may prohibit offensively lewd and vulgar speech under the school district’s authority to determine what manner of in-school speech is appropriate.
-In all other cases of a student’s own speech, the school may not prohibit the expression of one particular opinion without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline.
Contact a School Law Attorney
First Amendment law involves a lot of moving parts, is very fact-intensive, and is continually developing. If you believe that you or your child faces a First Amendment speech issue at school, you should contact an attorney who can advise you of your rights under the law as it stands at the time. Not all student speech receives First Amendment protection, but it is important to uphold speech that the Constitution says cannot be suppressed.
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