{"id":30887,"date":"2021-07-02T10:19:31","date_gmt":"2021-07-02T15:19:31","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment1\/free-speech-rights-of-students.html"},"modified":"2024-08-23T15:12:56","modified_gmt":"2024-08-23T20:12:56","slug":"free-speech-rights-of-students","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment1\/free-speech-rights-of-students.html","title":{"rendered":"Free Speech Rights of Students"},"content":{"rendered":"\n
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Free Speech Rights of Students<\/h1>\n
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\n By Balrina Ahluwalia, Esq.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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Students\u2019 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\u2019s interpretation of these rights and their boundaries for public school students.<\/p>\n\n <\/div>\n\n

The First Amendment to the U.S. Constitution protects our right to free speech. It reads in the relevant part, \u201cCongress shall make no law\u2026abridging the freedom of speech\u2026"<\/p>\r\n

This constitutional right stems from a limitation on Congress<\/a>. The U.S. Supreme Court<\/a> has interpreted this limitation to apply to government action of any type and at any level, also known as \u201cstate action<\/a>.\u201d<\/p>\r\n

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.<\/p>\r\n

What Types of Speech Are Protected?<\/h2>\r\n

The Court has also expanded the definition of speech in the First Amendment context. As a result, the First Amendment<\/a> 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.<\/p>\r\n

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.<\/p>\r\n

Teachers and other employees of public schools also have First Amendment rights. Yet, the Court applies different legal standards for government employees<\/a>. Whether government speech<\/a> is at issue may also be relevant.<\/p>\r\n

Student Free Speech Rights in Public Schools<\/h2>\r\n

The public-school setting presents unique considerations. Our educational system’s and its community’s objectives must be balanced with First Amendment protections.<\/p>\r\n

Tinker v. Des Moines Independent Community School District<\/h3>\r\n

In Tinker v. Des Moines Independent Community School District<\/i><\/a> (1969), the Supreme Court established the predominant legal standard for evaluating whether a public-school speech regulation properly balances these interests. In Tinker<\/i>, the Court reviewed a free speech challenge brought on behalf of Mary Beth Tinker and other high school students.<\/p>\r\n

In violation of a high school policy, the students wore black armbands to represent their opposition to America\u2019s involvement in the Vietnam War<\/a>. The school suspended them. Tinker challenged the suspension for violating the student\u2019s First Amendment rights to free speech and free expression.<\/p>\r\n

The Court agreed. It recognized that the First Amendment protects students\u2019 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 \u201ca mere desire to avoid the discomfort and unpleasantness that always go with an unpopular viewpoint.\u201d<\/p>\r\n

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.<\/p>\r\n

As the Court famously reasoned, \u201cneither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.\u201d<\/p>\r\n

The Tinker<\/i> 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<\/i> decision laid the groundwork for increased deference to school regulations restricting speech.<\/p>\r\n

Bethel School District v. Fraser<\/h3>\r\n

In Bethel School District v. Fraser<\/i><\/a>, the Court reviewed a high school policy restricting student speech. The policy prohibited student conduct that "substantially interferes with the educational process\u2026including the use of obscene, profane language or gestures."<\/p>\r\n

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\u2019s speech to be offensive to students, teachers, and \u201cany mature person.\u201d<\/p>\r\n

The Court distinguished Fraser\u2019s speech from the political speech protected in Tinker<\/i>. Specifically, it considered Fraser\u2019s speech inconsistent with "fundamental values of public-school education.\u201d<\/p>\r\n

The Court reasoned that public schools may decide they can\u2019t effectively teach the fundamentals of mature and civil conduct in an environment that tolerates such lewd or offensive expression.<\/p>\r\n

Morse v. Frederick<\/h3>\r\n

In Morse v. Frederick<\/i><\/a>, the Court reviewed another high school\u2019s restriction on student speech. Specifically, a student displayed a banner reading "BONG HiTS 4 JESUS\u201d at a school-sponsored event. Even though the banner didn\u2019t cause substantial disruption, the Court upheld the restriction.<\/p>\r\n

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.<\/p>\r\n

However, as Justice Alito<\/a> noted in his concurrence<\/a>, the Court didn\u2019t offer guidance for addressing speech restrictions on social or political commentary.<\/p>\r\n

The Court did establish three categories of student speech subject to school restrictions in specific situations. These include:<\/p>\r\n

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  1. Vulgar, lewd, or indecent speech at a school assembly on the school premises<\/p>\r\n<\/li>\r\n

  2. Speech promoting illegal drug use during a school trip<\/p>\r\n<\/li>\r\n

  3. Speech that may be reasonably perceived by others as endorsed by the school<\/p>\r\n<\/li>\r\n<\/ol>\r\n

    Hazelwood School District v. Kuhlmeier<\/h3>\r\n

    In 1988, the Court distinguished the from cases like Tinker<\/i>. In Tinker<\/i> and cases that apply the Tinker<\/i> standard, the issue is whether a school must permit certain student speech under the First Amendment.<\/p>\r\n

    Conversely, the Hazelwood<\/i> Court addressed whether the First Amendment requires schools to \u201caffirmatively\u2026promote particular student speech\u201d 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 \u201csupervised learning experience.\u201d<\/p>\r\n

    The Court used a public forum<\/a> analysis to review the principal\u2019s censorship<\/a> of the articles. It held that a \u201cschool need not tolerate student speech that is inconsistent with its \u2018basic educational mission,\u2019 . . . even though the government could not censor similar speech outside the school.\u201d<\/p>\r\n

    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 \u201creasonably related to legitimate pedagogical concerns.\u201d Meeting this standard, the Court upheld the principal\u2019s restrictions.<\/p>\r\n

    Mahanoy Area School District v. B.L.<\/h3>\r\n

    In 2021, the Court addressed off-campus student expression in Mahanoy Area School District v. B.L<\/i>.<\/a> Mahanoy dealt with vulgar social media<\/a> posts that were also critical of the school. A Pennsylvania high school cheerleader who didn\u2019t 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.<\/p>\r\n

    The Court explained that Tinker<\/i> 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.<\/p>\r\n

    Three aspects of off-campus speech make Tinker<\/i> less applicable include:<\/p>\r\n

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    1. The regulation of off-campus student speech is often more of the parents’ duty than the school’s.<\/p>\r\n<\/li>\r\n

    2. School regulation of off-campus student speech allows for around-the-clock restrictions, which have the potential to chill protected speech<\/a>.<\/p>\r\n<\/li>\r\n

    3. As \u201cthe nurseries of democracy,\u201d schools (have an interest) in protecting unpopular opinions of students.<\/p>\r\n<\/li>\r\n<\/ol>\r\n

      Ultimately, the Court determined the suspension violated the student\u2019s right to free expression. Its ability to regulate the speech was lessened by the fact that the social media posts:<\/p>\r\n