By David L. Hudson Jr., First Amendment Scholar
Updated March 2018
Public school students do not lose their constitutional rights when they walk through the schoolhouse doors. The U.S. Supreme Court has recognized that “students in school as well as out of school are ‘persons’ under our Constitution.” This means that they possess First Amendment rights to express themselves in a variety of ways. They can write articles for the school newspaper, join clubs, distribute literature, and petition school officials.
But public school students do not possess unlimited First Amendment rights. Two legal principles limit their rights. First, as the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Second, the government generally has greater power to dictate policy when it acts in certain capacities, such as educator, employer or jailer. For instance, a school principal can restrict a student from cursing a teacher in class or in the hallway. However, the principal would have limited, if any, authority to punish a student for criticizing a school official off-campus.
This principle of greater government control applies broadly in the public schools. The paramount duty of public school officials is to educate children in a safe environment. As one federal court put it: “Learning is more important in the classroom than free speech.”
However, public school officials act as arms of the government — state actors — and thus must respect the Bill of Rights and the First Amendment. The problem comes in ensuring that public school officials have authority to do their jobs without trampling on student free-expression rights. As Professor Erwin Chemerinsky has written: “Schools cannot teach the importance of the First Amendment and simultaneously not follow it.”
Balancing school officials’ educational concerns against students’ First Amendment rights is not easy. As the Supreme Court wrote: “Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.”
These collisions seem to be occurring with increasing regularity, particularly in the wake of student walkouts against the easy access to guns after the school shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Many years earlier, another school shooting, particularly the the April 1999 tragedy at Columbine High School in Littleton, Colorado, led to other free-speech controversies in the public schools. Today, many First Amendment struggles occur in the public schools. Here are some of the leading issues:
The First Amendment protects the right of citizens to express themselves in a variety of ways. Public school students, as young citizens, may engage in many modes of expression — from the words they speak to the ideas they write and even the clothes they wear.
Students can engage in political speech, which is considered the type of speech at the core of the First Amendment. The Founding Fathers considered such speech essential to the development of a constitutional democracy. The U.S. Supreme Court spelled out those rights in a case concerning public school students who spoke out on a major political issue of their time — the Vietnam War.
In the 1969 case Tinker v. Des Moines Independent Community School District,the high court ruled 7-2 that school officials violated the First Amendment rights of three Iowa students by suspending them for wearing black armbands to school. Even though the students were not technically speaking, the high court determined that the wearing of the armbands to protest the war was a form of symbolic speech “akin to pure speech.” The court referred to the wearing of the armbands as a “nondisruptive, passive expression of a political viewpoint.”
The Supreme Court established a protective standard for student expression in Tinker, which says that school officials cannot censor student expression unless they can reasonably forecast that the expression will cause a substantial disruption of school activities or will invade the rights others.
Though public school students possess the right to free speech, they are not free to express themselves in an unlimited form or fashion. In 1986, the Supreme Court ruled in Bethel School District No. 403 v. Fraser that school officials did not violate the First Amendment rights of a student suspended for giving a vulgar and lewd speech before the student assembly.
In Fraser, the high court wrote that “the freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”
In recent years, several students have been punished for authoring social media posts that criticize school officials, bullying other students online, or writing violent-themed material that that school officials deem disruptive or inappropriate. The school officials generally must show that they had a reasonable forecast (expectation that) the student expression would cause a substantial disruption. They cannot overreact with what the Supreme Court in Tinker called “undifferentiated fear or apprehension.”
Some have argued that many schools have overreacted to a few sensational cases of bullying by passing arguably overbroad anti-cyberbullying laws. . Though school officials must ensure a safe learning environment, some fear that school officials have ignored students’ First Amendment rights.
Students often communicate through their clothing. They can express their political, social or religious beliefs or show their support for a particular sports team, musical artist or even lifestyle.
But more and more schools are regulating what students may wear through dress-code and uniform policies. Proponents argue that they increase student attendance, instill discipline and ensure positive attitudes toward authority. They also say dress codes and uniforms make schools safer by making it easier to identify school visitors and intruders. Others contend uniforms reduce the peer pressure associated with wearing expensive clothes.
Those opposed to uniforms contend that they threaten students’ free-expression rights and parents’ liberty interests in rearing their children free from government intrusion. They also argue that dress codes and especially uniforms discourage individuality and critical thinking. Uniform opponents counter that schools should not be in the business of sacrificing individuality on the altar of conformity. The courts are divided in how they analyze dress codes, though the general trend has been to side with school districts.
But some cases have shown that school officials do not have carte blanche to regulate all student dress. For example, a federal court in Texas ruled in favor of two high school students punished for wearing rosary beads to school. Another federal court in California struck down a prohibition on the wearing of any sports apparel in a junior high school.
Many students are punished for wearing T-shirts that draw the ire of school administrators. Confederate flag garb and T-shirts featuring anti-gay and lesbian messages are common targets for censorship by school officials. Several schools punished students for wearing “I Love Boobies” bracelets even though the students wore the buttons to raise awareness about breast cancer. Administrators argue that they should have broad authority to regulate clothing that detracts from the learning environment or that offends others. As in many other areas involving student First Amendment rights, the courts are divided on how they resolve these claims.
Many public school students who work on their school papers or yearbooks find that they do not have the freedom to write on certain controversial subjects. In 1988, the U.S. Supreme Court ruled in Hazelwood School District v. Kuhlmeier that public school officials can censor school-sponsored student expression as long as they have a valid educational reason for doing so.
This decision has given school officials broad authority to regulate school-sponsored publications. Generally, such publications are deemed to be non-public — as opposed to public — forums, which are defined as places that traditionally have been open to diverse viewpoints and First Amendment activity. A school can create a public forum when it “by policy or practice” opens up a publication for student control.
Several states responded with so-called “anti-Hazelwood laws,” which give greater free-expression protection to student journalists. Those states are Arkansas, Colorado, Iowa, Kansas, Massachusetts and Oregon. (California had adopted greater protection for student expression before the Hazelwood ruling.) In recent years, the movement continues against the Hazelwood decision with the so-called New Voices movement. In August 2017, the American Bar Association supported this movement.
Many students have turned to producing their own “underground” newspapers rather than writing for their school-sponsored papers. Students have more freedom to tackle controversial subjects in underground rather than school newspapers because the Supreme Court has afforded students more free-speech protection if the expression is student-initiated rather than sponsored by the school.
Students generally may distribute their underground newspapers at school as long as they do not create a substantial disruption of school activities. School officials, however, can enforce reasonable regulations with respect to the time, place and manner of distribution. School officials have even less authority to regulate off-campus speech — particularly if that expression is never distributed at the school.
But that doesn’t mean school officials haven’t tried. In fact, one Texas principal allegedly went so far as to try to prohibit a student from writing letters to the editor to the local town newspaper.
Most people agree that the process of education involves confronting new ideas and challenges. However, because books often present controversial ideas or challenge the status quo, they are frequent targets of censorship. Even classics such as Mark Twain’s The Adventures of Huckleberry Finn are not immune from the specter of censorship.
School officials seeking to rid school libraries of controversial titles and shield children from certain information must tread carefully, however, as the U.S. Supreme Court has found that the First Amendment protects the right to receive information and ideas.
In 1982, the high court determined in Board of Education v. Pico that “the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.”
The high court determined that school officials could not remove books from the library because they disagreed with the ideas in the books. However, the court determined that officials could remove the books if they were “pervasively vulgar” or educationally unsuitable.
The high court specifically limited its ruling to the removal of a book already on the shelf and said the question of acquiring certain books raised a different question under the Constitution. In addition, the court’s ruling does not apply to the issue of whether certain books can be used in the curriculum. Most courts have determined that school officials have a broad degree of control over the curriculum.
Many students have turned to the Internet to express a variety of viewpoints, including criticism of school officials. The U.S. Supreme Court has said that speech on the Internet is entitled to the highest level of protection on par with the print medium.
Students generally have broad freedom to express themselves on the Internet on their own time, using their own off-campus computers. However, some school officials have suspended students for their off-campus Internet postings that lampooned or criticized school officials, mocked other students, or contained vulgar commentary.
Some courts have sided with the students, saying that school officials may not censor student speech unless they can reasonably forecast that the speech will cause a substantial disruption of the school environment or invade the rights of others. Other courts and commentators have said that school officials simply lack the authority to regulate students’ off-campus behavior — on or off the Internet.
However, if a student creates certain online expression as part of a class or even using a school computer outside of class time, then school officials will argue that the speech is in fact school-sponsored and therefore subject to less protection.
Another major issue regarding cyberspeech concerns state laws or school policies that prohibit cyberbullying. Even in the Tinker decision, the U.S. Supreme Court cautioned that students do not have a First Amendment right to engage in speech that invades or impinges on the rights of other students. If a student engages in speech that bullies another students, whether online or offline, that speech can invade the rights of the victim. However, some of these cyberbullying laws and policies arguably are too broad.
Some school officials have implemented speech codes, arguing that they help to ensure a safe learning environment by prohibiting students from engaging in harassing speech or so-called hate speech. However, critics contend that some of the policies go too far and prohibit protected speech. A federal appeals court based in Pennsylvania struck down an anti-harassment policy for precisely that reason.
Sometimes it isn’t students’ speech but their choice of symbols that is interpreted by school officials as harassing or hateful. There is perhaps no symbol more controversial in the public schools than the Confederate flag, which supporters say is merely a symbol of heritage, but critics charge is a symbol of hate. Many students have been suspended for wearing such garb or even for drawing pictures of the flag in class.
Students often form different clubs at school, including clubs that are not related to the school curriculum. In 1984, Congress passed the Equal Access Act, which forbids schools from discriminating against clubs, or denying them equal access to school facilities because of their philosophical or religious viewpoints. The act was largely passed to prevent widespread discrimination against religious clubs.
In 1990, the U.S. Supreme Court ruled in Westside Community Board of Education v. Mergens that the Equal Access Act was constitutional. In that case, the high court determined that a school district violated the Equal Access Act by denying use of its facilities to a religious club, while allowing a chess club, a scuba diving club and other “noncurriculum related” groups to use school facilities.
Under the law if a school opens its facilities to “any noncurriculum related group,” it must open its facilities to all student groups. A recent area of controversy regarding student clubs involves the efforts of gay and lesbian students to obtain recognition for their groups.
In the aftermath of the Sept. 11, 2001, terrorist attacks, a resurgence of patriotism has swept the nation. Public schools have helped fuel this patriotic zeal by requiring students to recite the Pledge of Allegiance.
After the attacks, school officials in Georgia suspended two high school students for failing to stand during the Pledge of Allegiance. A bill was introduced in Colorado that would have required all public school students to recite the pledge.
These examples are somewhat surprising given the historic 1943 Supreme Court decision West Virginia Board of Education v. Barnette. A West Virginia law penalized students and their parents if the students failed to salute the flag and recite the pledge. A group of Jehovah’s Witnesses, who refused to comply for religious reasons, challenged the law.
The Supreme Court, overruling another decision issued only three years prior, sided with the Jehovah’s Witnesses. The court wrote that school boards must engage in “scrupulous protection of Constitutional freedoms of the individual … [so as] … not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” The court reasoned that the First Amendment free-speech clause included the right not to speak.
In recent times, a related controversy involves whether student-athletes have a right to refuse to stand for the Pledge of Alleigance or kneel during the playing of the national anthem as a form of protest. Students should have the right to engage in such peaceful protest. In January 2018, a federal judge ruled a student-athlete had a First Amendment right to kneel as a form of protest.