Education Law

When Can Schools Limit Students’ Free Speech Rights?

By E.A. Gjelten, Author and Editor
Students don’t lose their First Amendment rights by going to public school, but they can still be punished for some kinds of speech—or other ways of expressing their opinions.

Public schools must respect students’ rights to freedom of expression, guaranteed under the First Amendment to the U.S. Constitution. But those rights aren’t absolute. In addition to the general exceptions to First Amendment protection, students often face restrictions on their speech that are particular to the school setting.

Special Rules for Speech at School

The U.S. Supreme Court has long recognized that the right to freedom of expression isn’t quite the same for children at school as it is for adults in other settings. This is because K-12 schools have a special responsibility to keep children safe, teach them how to behave properly, and make sure the campus environment is conducive to learning. Not surprisingly, students and administrators often clash over the balance between schools’ dual responsibilities:

  • to respect students’ rights to freedom of expression, and
  • to protect children and the learning environment.

When those clashes lead to lawsuits, courts turn to the basic ground rules that the Supreme Court laid out in four landmark decisions. Schools may restrict students’ speech if it:

  • is likely to disrupt school
  • is lewd
  • promotes illegal drug use, or
  • is part of the curriculum or communications sponsored by the school.

Several lower courts have recognized another principle: The younger the students, the more leeway schools have to control their speech. (By the same token, colleges and universities have less latitude when they try to restrict older students’ speech.)

Disruptive Speech

The Supreme Court found that a school violated students’ First Amendment rights by suspending them for wearing black armbands as an antiwar protest (an example of what’s known as “symbolic speech”). As the court explained, school officials may not squelch the expression of unpopular opinions just to avoid “discomfort and unpleasantness.” Instead, they need to show that the banned speech would create a “substantial disruption” at school or would violate other students’ rights. (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).)

Lower courts have come to different conclusions about what it takes to meet the Tinker standard. (For more details, see our article on disruptive student expression.)

Vulgar Speech

In another case where a high school student gave a speech at school that was filled with explicit sexual metaphors, the Supreme Court found that the First Amendment didn’t prevent schools from disciplining children for offensively lewd and indecent speech. As the court explained, society’s interest in teaching “the boundaries of socially appropriate behavior” outweighed the student’s right to express his views in a way that was highly offensive to many of his classmates. (Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).)

Dangerous Speech

After another high school student was suspended for refusing to take down a banner reading “BONG HiTS 4 JESUS” at a school event, he sued. The Supreme Court found that the principal hadn’t violated the boy’s free speech rights, because it was part of the school’s mission to protect students from messages that could be seen as promoting or celebrating illegal drug use (Morse v. Frederick, 551 U.S. 393 (2007)). Based on the reasoning in Morse, courts have given schools a fair amount of leeway in deciding whether students’ speech poses a danger to their classmates or teachers.

School-Sponsored Speech

Teachers and other school authorities are allowed to censor or change what students write or say in school-sponsored publications (like an official school newspaper or yearbook), school plays, or other activities that involve the expression of ideas and are essentially part of the curriculum. However, the school must have a legitimate educational reason for the censorship. (Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988).) (For more information, see our article on school censorship of student journalists.)

Questions for Your Lawyer

  • What if the principal has punished my high school child for supposedly vulgar speech that was pretty tame compared to how adolescents normally talk? Who decides what’s offensive?
  • Can school officials stop my child from wearing a T-shirt with a design that included small cannabis leaves?
  • Can the school suspend my teenage son for making a threat if he was just joking around with other kids when he said he was going to “bust a cap in your a**”?

Go to the main FAQ page on students’ freedom of expression.

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