Speaking Out in School

By David L. Hudson Jr., First Amendment Scholar, and Freddie Wolf, First Amendment Center Fellow

Last updated: September 18, 2017

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.”  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.”

Following a series of sensational school shooting incidents, several students were punished for writing poems, essays or displaying artwork that school officials deemed disruptive or inappropriate.  More recent issues surrounding this topic have been related to online speech and cyberbullying.  For example, in 2012, North Carolina passed a law prohibiting students from making online comments meant to “bully or torment” a school employee.  Some have argued that many schools have overreacted to a few outlier incidents by clamping down on any student expression deemed offensive or disagreeable.  Though school officials must ensure a safe learning environment, some fear that school officials have ignored students’ First Amendment rights.