Student Speech

Public education is an important part of our society. Students, like all Americans, have freedom of speech rights protected by the U.S. Constitution. The First Amendment of the Constitution protects the rights of students to speak, but when it comes to student speech at school, things can get complicated. The line between students' free speech rights and school officials' authority to maintain a safe school environment can sometimes blur.

Here we look at some of the free speech lawsuits involving public schools as well as literary works placed on the infamous Banned Book List. This section provides helpful information and resources on free speech basics for students, as well as free speech lawsuits involving public schools.

Click on the links below to learn more.

Student Speech Rights: A Brief Overview

Freedom of speech is a constitutional right, but for students there are some limits to freedom of speech. In public education settings, school officials have the power to set rules. This authority has been given through court cases over time. On campus, these officials can limit student speech if it causes substantial disruption or interferes with school activities. 

The rules can change slightly when students are off-campus. Thanks to the internet and social media, what students say off-campus can reach the schoolhouse gate quickly. This has led to many questions about how much power schools have over off-campus speech.

Free Speech Lawsuits Involving Public Schools

There have been many lawsuits about student speech rights. These laws have shaped school policies and education law. The first court case establishing that students have some First Amendment rights and protections was West Virginia State Board of Education v. Barnette (1943). 

West Virginia had passed a law requiring all students to salute the flag and recite the pledge of allegiance. Several students and parents who were Jehovah's Witnesses complained that their religion prevented vows of allegiance. The Supreme Court sided with the students and struck down the law as infringing upon their First Amendment rights.

It wasn't until 1969 that the next important free speech lawsuit involving students made it to the Supreme Court. Tinker v. Des Moines Independent Community School District centered on a group of students who wore black armbands to protest the Vietnam War. School administrators passed a rule banning black armbands and suspended any student caught wearing one. 

Suspended students sued the school district. The Court's decision ruled that students have First Amendment protections but created an important caveat that schools could limit free speech to prevent the disruption of order in the classroom.

Another case is Hazelwood School District v. Kuhlmeier (1988), where the U.S. Supreme Court ruled that school officials could control the content of a school newspaper. The court held that they have the right to censor information in student newspapers published as part of the school's curriculum. Student newspapers, therefore, are not established as forums for public expression for high school students. They are subjected to a lower level of First Amendment protections.

In Morse v. Frederick (2007), the court made an influential decision by ruling against a student who promoted illegal drug use at a school-sponsored event. Another important case is Mahanoy Area School District v. B.L. (a minor) (2021). In this case, the Supreme Court discussed off-campus speech on social media. They said that public school students have free speech rights off-campus unless it severely disrupts school activities.

Access the links below for more information on these and other student free speech lawsuits.

School Dress Codes

Clothing is an important mode of expression, and there has been significant debate about whether dress code policies limit students' right to free expression. Tinker and similar lawsuits have established that schools may limit self-expression if there is a legitimate concern that such expression will be either disruptive to the learning environment or violate the rights of others. Dress codes have been implemented to ban:

• Gang-related clothing
• Revealing clothing, including baggy pants or short skirts
• Clothing bearing lewd, obscene, or otherwise offensive imagery

However, schools cannot prevent students from expressing their religious beliefs. Bans on religious head scarves, cross necklaces, rosaries, and traditional dress at graduation have all been struck down as improperly preventing student expression of religious beliefs.

Schools do retain the right to create rules that provide an effective education for their students and can develop and enforce a dress code, provided they can show that their dress code furthers their goals and prevents violent or abusive behavior. If students do not abide by the dress code, they may be subjected to school discipline by school authorities.

Public vs. Private Schools

Public school students have rights protected by the U.S. Constitution, but private schools are different. Students still have free speech rights protected by the Constitution because they are American citizens, but private schools are free to set their own rules. This means they can set their own standards for student speech. Students at private schools still have rights, but they might not have the same protections that public school students do.

Getting Legal Help

Some students may feel their free speech rights are being violated. In these scenarios, it is crucial to get help. Education law can be tricky. It's not always clear how the U.S. Constitution protects and applies to minors. For those with disabilities, there may be additional rights to consider. If there's a concern about school policies, it's a good idea to talk to an education lawyer.

Speak to an education law attorney today about your legal issue.