Free Speech Rights of Students
By Balrina Ahluwalia, Esq. | Legally reviewed by Edward Maggio, Esq. | Last reviewed August 23, 2024
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Students’ First Amendment free speech rights are protected in our public schools but are also subject to regulation under certain circumstances. In this article, we explore the Supreme Court’s interpretation of these rights and their boundaries for public school students.
The First Amendment to the U.S. Constitution protects our right to free speech. It reads in the relevant part, “Congress shall make no law…abridging the freedom of speech…"
This constitutional right stems from a limitation on Congress. The U.S. Supreme Court has interpreted this limitation to apply to government action of any type and at any level, also known as “state action.”
Therefore, our right to free speech is safeguarded against restrictions imposed by the state. However, this right is not absolute. The Supreme Court has delineated various acceptable limitations on speech and has formulated legal frameworks and standards to assess if a governmental restriction unjustly violates our free speech rights. These frameworks vary depending on the circumstances.
What Types of Speech Are Protected?
The Court has also expanded the definition of speech in the First Amendment context. As a result, the First Amendment right to free speech also protects other forms of expression. This can include symbolic actions, the written word, and other expressive conduct, like messaging on a t-shirt or refusing to salute the American flag.
Through case law, the Supreme Court has developed specific standards for evaluating the constitutionality of restrictions on student speech in public schools. These standards apply to public schools because the government owns and operates each public school district.
Teachers and other employees of public schools also have First Amendment rights. Yet, the Court applies different legal standards for government employees. Whether government speech is at issue may also be relevant.
Student Free Speech Rights in Public Schools
The public-school setting presents unique considerations. Our educational system's and its community's objectives must be balanced with First Amendment protections.
Tinker v. Des Moines Independent Community School District
In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court established the predominant legal standard for evaluating whether a public-school speech regulation properly balances these interests. In Tinker, the Court reviewed a free speech challenge brought on behalf of Mary Beth Tinker and other high school students.
In violation of a high school policy, the students wore black armbands to represent their opposition to America’s involvement in the Vietnam War. The school suspended them. Tinker challenged the suspension for violating the student’s First Amendment rights to free speech and free expression.
The Court agreed. It recognized that the First Amendment protects students’ rights to free speech in public schools, which presents special considerations. To justify the ban, the Court said the school must show that it implemented the policy for reasons beyond “a mere desire to avoid the discomfort and unpleasantness that always go with an unpopular viewpoint.”
Rather, the school needed to show that the expression or conduct would substantially disrupt or materially interfere with the school's operation or the rights of others. Fear or concern that such an interference or disturbance will occur is insufficient.
As the Court famously reasoned, “neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The Tinker Court also affirmed the power of schools to regulate and control student conduct in schools, consistent with constitutional protections. So, schools can restrict speech to prevent disruption. But the regulations need to be justified. The Tinker decision laid the groundwork for increased deference to school regulations restricting speech.
Bethel School District v. Fraser
In Bethel School District v. Fraser, the Court reviewed a high school policy restricting student speech. The policy prohibited student conduct that "substantially interferes with the educational process…including the use of obscene, profane language or gestures."
Student Matt Fraser gave a speech containing sexual innuendos at a school assembly with six hundred students present. The school issued a suspension in response. Fraser claimed this action infringed on his First Amendment rights and filed a lawsuit. The Supreme Court eventually supported the school's decision to suspend him. It found the sexual innuendos in Fraser’s speech to be offensive to students, teachers, and “any mature person.”
The Court distinguished Fraser’s speech from the political speech protected in Tinker. Specifically, it considered Fraser’s speech inconsistent with "fundamental values of public-school education.”
The Court reasoned that public schools may decide they can’t effectively teach the fundamentals of mature and civil conduct in an environment that tolerates such lewd or offensive expression.
Morse v. Frederick
In Morse v. Frederick, the Court reviewed another high school’s restriction on student speech. Specifically, a student displayed a banner reading "BONG HiTS 4 JESUS” at a school-sponsored event. Even though the banner didn’t cause substantial disruption, the Court upheld the restriction.
It held that schools can protect the students in their care from messaging or speech that encourages unlawful drug use. The Court distinguished this from a situation where a banner displayed a position on marijuana legalization, for example.
However, as Justice Alito noted in his concurrence, the Court didn’t offer guidance for addressing speech restrictions on social or political commentary.
The Court did establish three categories of student speech subject to school restrictions in specific situations. These include:
Vulgar, lewd, or indecent speech at a school assembly on the school premises
Speech promoting illegal drug use during a school trip
Speech that may be reasonably perceived by others as endorsed by the school
Hazelwood School District v. Kuhlmeier
In 1988, the Court distinguished the from cases like Tinker. In Tinker and cases that apply the Tinker standard, the issue is whether a school must permit certain student speech under the First Amendment.
Conversely, the Hazelwood Court addressed whether the First Amendment requires schools to “affirmatively…promote particular student speech” under the First Amendment. In Hazelwood, a high school principal censored certain student-written articles from a school newspaper. One article named and criticized a divorced parent. The other described teen pregnancy in a manner the principal considered to be inappropriate for younger audiences. The newspaper at issue was considered part of the curriculum, providing journalism students a “supervised learning experience.”
The Court used a public forum analysis to review the principal’s censorship of the articles. It held that a “school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ . . . even though the government could not censor similar speech outside the school.”
Thus, the Court balanced students' free speech rights with educator authority. It reasoned that censorship and editorial control of a public school-sponsored student newspaper were only “reasonably related to legitimate pedagogical concerns.” Meeting this standard, the Court upheld the principal’s restrictions.
Mahanoy Area School District v. B.L.
In 2021, the Court addressed off-campus student expression in Mahanoy Area School District v. B.L. Mahanoy dealt with vulgar social media posts that were also critical of the school. A Pennsylvania high school cheerleader who didn’t make the varsity team posted them on Snapchat from an off-campus convenience store. School administrators subsequently suspended the cheerleader who challenged the suspension on First Amendment grounds.
The Court explained that Tinker is less applicable to off-campus student speech. Not all the special characteristics of a public-school environment that afford it greater leeway to restrict student speech are present, and they diminish when the speech occurs off-campus.
Three aspects of off-campus speech make Tinker less applicable include:
The regulation of off-campus student speech is often more of the parents' duty than the school's.
School regulation of off-campus student speech allows for around-the-clock restrictions, which have the potential to chill protected speech.
As “the nurseries of democracy,” schools (have an interest) in protecting unpopular opinions of students.
Ultimately, the Court determined the suspension violated the student’s right to free expression. Its ability to regulate the speech was lessened by the fact that the social media posts:
Were to a limited audience
Didn’t mention the school's name
Named no school officials
Were made on a personal cell phone
Were made at an off-campus convenience store
Still, the Court held that schools may restrict off-campus student speech, which disrupts the learning environment. It may also be interested in some off-campus speeches, such as online school activities.
Likewise, certain off-campus student speech, even outside of school hours, may demand school regulation, such as bullying or threats. Yet, the Court didn’t establish clear parameters for what makes up off-campus speech.
Do Public Universities Have Free Speech?
It’s not entirely clear whether Tinker and later case law applies in the higher education setting. The Supreme Court has applied the principles of Tinker in cases involving public colleges and universities. However, the Court has also recognized the distinct role of these institutions in fostering open debate.
In Healy v. James, for example, the Court suggested that how courts balance considerations under the Tinker test may vary depending on the students’ ages. It explained, “the college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’”
But in Papish v. Bd. of Curators of Univ. of Missouri, the Court said that Tinker might apply to “reasonable rules governing conduct” in higher education. However, traditional First Amendment standards of scrutiny apply when schools take disciplinary action against college students on the basis of disfavored speech. The Papish Court further explained that the First Amendment doesn’t allow for a dual standard in academia for content-based speech restrictions.
As a general rule, restrictions on student speech in public schools or any environment must be consistent with the First Amendment. The public-school setting presents unique considerations for regulations restricting speech. Evolving Supreme Court precedent provides instructive guidance on balancing students’ First Amendment free speech rights with the objectives of the public education system.
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