Student Freedom of Speech and School District Actions

Jan 9, 2017

Freedom of Speech

The political atmosphere of 2016 was certainly extraordinary culminating with the presidential election in November followed by public marches, protests, and pickets - especially by young people many dismayed by the results of the election. The election and its results have been used by many educators as valuable learning opportunities to teach students about our political system, the importance of voting, peaceful protesting, and our country’s historic tradition of the peaceful transfer of power. This has however, raised the issue of what is protected for “student freedom of speech” in schools.

With inauguration day, Friday, January 20, 2017, approaching this may once again create controversial events and comments in schools regarding differing political viewpoints between students. While freedom of speech is one of the tenants of our constitution, district administrators, school board members, and teachers should be well aware of the established limits of free speech in schools. To ensure appropriate student behavior and preserve the needed educational environment within schools, educators should be prepared to act and react within their proper authority regarding student freedom of speech.


What is protected under Student Freedom of Speech?

The First Amendment of the United States Constitution protects student freedom of speech, although the rights in a school setting are not the same as the rights in a non-school setting. This places district and school administrators in a precarious position when it comes to balancing student freedom of speech against what some students may classify as harassment or intimidation.

The First Amendment protects student speech and conduct in narrow circumstances, typically where a student expresses a political or religious viewpoint which does not result in an actual or potential material and substantial disruption, and which is not vulgar, lewd, indecent, or promoting illegal drugs. School officials may not prevent or discipline students for expressing their personal, political, or religious views or opinions on school premises.  Courts have consistently upheld a student’s right to speech or conduct that is political in nature and does not cause a disruption to the educational environment.

One of the most famous cases of student freedom of speech was decided in 1969 by the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503. This case remains relevant today as it involved students wearing an armband to school in protest of the Vietnam War.  This was protected by the First Amendment because the student activity was a “silent, passive expression of opinion, unaccompanied by any disturbance or disorder.”  Accordingly, the court ruled that the school district erred when it disciplined students who wore the armband in school.


Can a school discipline a student who is claiming Freedom of Speech?

In the Tinker case, the Supreme Court further held that students may be disciplined when student speech or conduct will “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or “impinge upon the rights of other students.”  It is important for a school district to consider the intent of the student’s speech.

A school district may not discipline a student for his or her speech or conduct when the purpose is to express a political viewpoint or opinion. A school district may discipline a student for speech or conduct that demeans certain individuals or groups, such as racial or ethnic groups; for conduct that may promote illegal drug use; and when student speech is vulgar and offensive.

In a more recent case, the Second Circuit found that a school district impermissibly suspended a student who wore a shirt in protest of President George W. Bush that included an image of the President superimposed on the body of a chicken with drugs and alcohol.  Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006).  The school district attempted to argue that it properly disciplined the student as its dress code prohibited “any aspect of a student’s appearance which constitutes a real hazard to the health and safety of self and others or is otherwise distracting, including clothing displaying alcohol, drugs, violence, obscenity, and racism.”  The court found that the shirt was permissible as the images were not lewd, vulgar, or indecent, they did not cause a disruption to the educational process, and they were part of the student’s political message.

On the converse, the courts have identified and found circumstances where a school district may discipline or limit student speech or conduct in certain instances. These prohibited situations  include: 1) Promoting Illegal Drug Use, Morse v. Frederick, 551 U.S. 393 (2007); 2) Use of Vulgar and Offensive Language, Bethel Sch. Dist. v. Fraser, 478 U.S. 676 (1986); 3) Depictions of the Confederate Flag, West v. Derby Unified School District No. 260, 206 F.3d 1348 (10th Cir. 2000); and 4) Racist Conduct to Assert Violence,  Dariano v. Morgan Hill Unified School District, 745 F.3d 354 (9th Cir. 2014).


How should a district determine whether or not a student is protected by Freedom of Speech?

When determining whether or not a school can restrict a student’s speech or discipline the student based on speech, it may be helpful to consider the following two –part test: 1) whether the student speech and/or expression demeans certain individuals or groups and 2) whether it disrupts the educational environment. If a student’s speech fails either part of this test, the school may have grounds to restrict the speech or expression.

For example, a student wearing a Black Lives Matter symbol, without any other expression of violence or racism, would be protected for wearing that symbol under the First Amendment.  The student is expressing her political opinions in a nonviolent manner, similarly to the armbands in Tinker as a “silent, passive expression of opinion, unaccompanied by any disturbance or disorder.”

In contrast, a student displaying the Confederate flag would require districts to apply the two part test. Is the student speech: 1) demeaning individuals or groups; and, 2) disrupting the educational environment? Schools have typically banned this symbol from being used as it is widely viewed as racist and symbolic of white supremacy, thus failing the first portion of the freedom of speech test. Overwhelmingly, the courts have agreed with this position. It is worth noting that while some southern states and students have argued that the Confederate flag is “part of history,” this reasoning has not stood up against legal challenges.

Given the upcoming presidential inauguration which will likely open up many of the political controversies of 2016 in the weeks ahead, school districts may want to add these issues of balancing student Freedom of Speech and the preservation of an appropriate learning environment as part of their very timely civic lessons.  For school personnel with further questions on student freedom of speech, we encourage you to contact the Harris Beach educational law team.

Please note this post does not purport to be a substitute for advice of counsel on specific matters.


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