Education Law

Freedom of Expression in Schools

The First Amendment to the US Constitution allows you the freedom to speak, write and meet freely with others. And your First Amendment rights to freely express yourself follow you into public school.

There are limits on First Amendment rights at school, and an array of settings where the scope of these rights come up.

Supreme Court and the First Amendment at School

US Supreme Court decisions define the scope of the First Amendment in public school settings. Public schools must have a valid basis to limit free speech rights, and can't act on an undifferentiated fear or apprehension. Schools can:

  • Limit speech based on a reasonable expectation that it will cause a material and substantial disruption of school activities or invade the rights of others
  • Prohibit obscene or vulgar language

Schools can also limit speech if it's in the form of a threat. Not just any expression is a threat, though. Threats must:

  • Be perceived as a threat by others
  • Be clear and convincing, causing others to believe it will be carried out
  • Cause other students to fear for their safety

First Amendment in Action

First Amendment issues arise in a variety of school settings, from dress codes to content on the internet.

Dress Codes

Students often communicate through clothing, but schools are using dress codes and uniform policies more than ever before.

State laws vary considerably about what kind of dress code a public school can enforce, so it's best to contact your local American Civil Liberties Union to find out about laws in your state. In some states, for example, clothing choices are limited only by safety concerns. In others, courts approve strict dress codes unless they are clearly unreasonable or discriminatory.

Social Media and the Internet

The Supreme Court has decided that internet speech has the same high level of constitutional protection as what's written in a newspaper or other written media.

It makes a difference, though, whether a student's internet expressions are made independently or on school time using school equipment and web sites. While there's more leeway when using personal resources, it's wise to avoid lawsuits for libel or slander. For example, a student shouldn't make untrue statements online about school officials or teachers that harm reputations.

When school resources are used, such as online speech for a class project, First Amendment rights can be limited.

School Newspapers and 'Zines

Students are allowed to hand out an independently-produced newspaper or leaflet in school, as long as it isn't indecent and doesn't materially and substantially disrupt school activities. Schools can limit the time, place and manner of distribution.

Schools have greater power to censure speech in official school papers. School officials can censure content that is inappropriate or harmful; they don't have to show it's obscene or disruptive.

Some states have what are called "high school free expression laws," giving students more free speech rights than the US Constitution.

Pledge of Allegiance

The US Supreme Court has decided it's as much a First Amendment violation to make you say something you don't want to say as it is restrict your free speech. Students can't be forced to recite the Pledge of Allegiance, or even stand while others are reciting it.

Religious Instruction

Public schools aren't allowed to push particular religious beliefs or practices, but teachers can teach about the influences of religion on history and culture, including literature and political movements.

Questions for Your Attorney

  • Can schools enforce conduct codes or discipline a student for statements made in a private blog?
  • Are dress codes valid if they only apply to one sex?
  • What is the standard for deciding whether an expression is obscene and barred at school?

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