School speech (First Amendment)

School speech concerns the freedom of speech and types of speech that are permissible in schools, particularly public schools, in the United States. School speech deals with students and sometimes teachers and administrators expressing themselves in school. The First Amendment guarantees that the government cannot limit people’s speech or expressions of opinion. The US Supreme Court has determined that since public schools are public institutions, the First Amendment does allow students the right to free speech in school. However, because the need for organization and order during school hours is necessary to facilitate learning, students’ speech is regulated more strictly than speech outside of schools. The issue has been at the heart of many Supreme Court cases that have shaped what is allowed and what is restricted in relation to school speech.

Background

The Constitution is the foundational legal document of the United States. Drafted in 1787 and ratified by the states over the next few years, the Constitution provided a framework for the US federal government. The Constitution was created after an earlier document, the Articles of Confederation, failed to create an effective federal government. The Articles of Confederation gave too little power to the federal government, which prevented the government from collecting taxes. While the Constitution gave more power to the federal government, some critics believed it did not grant the citizens of the United States enough rights. Therefore, some of the Founding Fathers added the Bill of Rights to the Constitution in 1791. The Bill of Rights contains the first ten amendments to the Constitution, guaranteeing specific rights to the citizens of the United States. The First Amendment is one of the most well-known and states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment has played an important role in public life in the United States. Americans’ expectations of free speech and freedom of assembly come from this amendment. Questions about free speech and other aspects of the First Amendment have been raised since the early 1800s.

Free speech does not mean that people can say whatever they like in any venue. For example, a person may not freely protest a business inside that particular business. The business, a private organization, has the freedom to set its own rules concerning its operations. If the business does not like what a person is saying, the business has the right to force the person to leave. However, the government, and the various parts of the government, is different. Public schools are the most common type of school in the United States. Public schools are free and all American children are permitted to attend public school. Children under a certain age are compelled to attend school, but their parents or guardians can choose to send them to private school instead of a public school.

Local and state governments run public schools in the United States. Since these institutions are part of the public sector, the issue of free speech in school is an important one. Private schools are different as they are not government-run organizations and have more ability to limit free speech.

Free speech in public schools has been controversial for many years. Some people believe that free speech should be unrestricted by schools, giving students the same opportunities for free speech adults have outside of school. Others believe that limits on free speech must exist to maintain order and make school an environment where students can learn. The laws regarding free speech in public schools have evolved as court cases have shaped legal precedent and social norms have shaped individual beliefs.

Overview

A number of Supreme Court cases have dealt with free speech in schools, greatly impacting the rules governing such speech. One of the most influential of these decisions—Tinker v. Des Moines Independent School District—occurred in 1969 during the height of the Vietnam War (1954–1975). Americans were divided on the issue of Vietnam, with many young people protesting the war and the country’s involvement in it. Other people disapproved of these protests, claiming they were anti-American and harmful to the country. In 1965, a group of students at Warren Harding Junior High School in Des Moines, Iowa, wore black armbands to school to protest the war. One of those students was thirteen-year-old Mary Beth Tinker. Tinker and several other students were suspended by school officials for wearing the armbands.

The students sued the school district, claiming they had the right to free speech in their public school. The case eventually made its way to the US Supreme Court in 1969 where the students were victorious by a 7–2 decision. In the Court’s majority opinion, Justice Abe Fortas stated that the students did not lose their constitutional rights just because they were in school. Fortas and the other justices did point out that the students’ right to free speech stayed intact because their protest did not inhibit the school’s ability to teach other students. The Court decided that the school could not punish the students solely because the school did not like the students’ message. The Court left open the possibility that a school could punish a student for speech that disrupted class or the ability of the school to operate.

Another important Supreme Court case occurred decades earlier during World War II (1939–1945). In the case West Virginia v. Barnette (1943), children declined to recite the Pledge of Alliance because they said it went against their religion. As Jehovah’s Witnesses, the children were not supposed to make pledges to objects or symbols. The school tried to force the children to recite the pledge, but the Court ruled that the children did not have to say the pledge.

The case, Bethel School District v. Fraser (1986), also affected school speech in the United States. In this case, a student was disciplined for using lewd speech in school. The student lost the case because the Supreme Court decided that, while adults could use lewd speech without being reprimanded by the government, students in a school setting could not use vulgar and offensive language. In Hazelwood School District v. Kuhlmeier (1988), the Court decided that a school newspaper is an extension of the school itself, so school administrators could make the final decision about what information is published in those newspapers. Another case that helped define the limits of free speech in school was Morse v. Frederick (2007). In this case, the court decided that students could not use a banner reading “Bong Hits 4 Jesus,” as the banner was promoting smoking marijuana, which was illegal. The court stated that the speech could be prohibited since it promoted illegal activity. In the case of Mahanoy Area School District v. B.L (2021) the Supreme Court ruled that the school only has the right to limit free speech off campus with topics directly in the school's interest such as bullying, threats, or safety concerns. In this case, the court ruled that the minor's use of foul language outside of school did not warrant school intervention and instead fell under the common law doctrine of in loco parentis. 

The overarching impact of the Supreme Court’s decisions involving public school speech has established certain rules and norms regarding such speech. The first is that schools cannot limit students’ free speech based on politics or religion. So, a school cannot stop a student from wearing a button supporting a particular political nominee or stop a student from talking about their religion with other students. However, schools can limit speech that is disruptive or could possibly incite violence. For that reason, schools have been permitted to stop students from wearing clothing with the Confederate flag or wearing clothing that represents a particular gang. Schools are also allowed to limit vulgar speech and speech that includes sexual references. This means that while a student may be permitted to criticize a teacher, a student may not be permitted to use vulgarity when criticizing the teacher. Schools also have the right to limit speech that promotes illegal drug use or other criminal activities.

Another important rule about school speech is that the school newspaper is not necessarily a place where students can freely express themselves. The law views the school newspaper as being a vehicle for the school’s speech. For that reason, school administrators have the final say about what can be published in the school newspaper. However, some states have laws that give further free speech rights to students. For example, California, Colorado, Iowa, and other states have laws that prohibit school administrators from controlling the school newspaper. This is permissible because the Supreme Court’s decisions lay out the minimum amount of free speech students are guaranteed, but states have the right to increase the free speech rights of students if they wish.

It is widely accepted that schools are also still allowed to have dress codes that regulate what students wear for reasons such as maintaining order. People who believe schools are justified in having dress codes point to wording used in the Tinker case, where the students were permitted to wear armbands in protest of the war, “The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. It does not concern aggressive, disruptive action or even group demonstrations.”

The Internet has complicated the issue of school speech. Some schools have punished students for what they say on the Internet, even when the students conduct the speech outside of school or after school hours. Some schools target bullying speech or other speech seen as negative. Though some people support schools monitoring students’ speech outside school, others are wary of what they see over the overstepping of school authority.

Bibliography

Bomboy, Scott. “Public School Student Free Speech: A Primer.” Constitution Daily, 16 Mar. 2018. constitutioncenter.org/blog/public-school-student-free-speech-a-primer. Accessed 21 Jan. 2025.

“The Debate over Student Off-Campus Speech and First Amendment Protection.” Constitution Daily, 9 May 2016, constitutioncenter.org/blog/when-does-student-off-campus-speech-get-first-amendment-protection/. Accessed 21 Jan. 2025.

Eidelman, Vera, and Sarah Hinger. “Some Schools Need a Lesson on Students’ Free Speech Rights.” American Civil Liberties Union, 18 Sept. 2018, www.aclu.org/blog/free-speech/student-speech-and-privacy/some-schools-need-lesson-students-free-speech-rights. Accessed 21 Jan. 2025.

“First Amendment.” Legal Information Institute, www.law.cornell.edu/constitution/first‗amendment. Accessed 21 Jan. 2025.

“This First Amendment in Schools.” National Coalition against Censorship, 2019, ncac.org/resource/the-first-amendment-in-schools-the-first-amendment-and-public-schools. Accessed 21 Jan. 2025.

“Facts and Case Summary—Hazelwood v. Kuhlmeier.” United States Courts, www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-hazelwood-v-kuhlmeier. Accessed 21 Jan. 2025.

"The First Amendment in Schools." National Coalition Against Censorship, 2 Aug. 2024, ncac.org/resource/first-amendment-in-schools. Accessed 21 Jan. 2025. 

Hudson Jr., David L. “Bethel School District No. 403 v. Fraser (1986).” First Amendment Encyclopedia, www.mtsu.edu/first-amendment/article/675/bethel-school-district-no-403-v-fraser. Accessed 21 Jan. 2025.

"Mahanoy Area School District v. B.L." Harvard Law Review, vol. 135, no. 1, Nov. 2021, harvardlawreview.org/print/vol-135/mahanoy-v-b-l/. Accessed 21 Jan. 2025. 

Mazzotta, Symone. “West Virginia v. Barnette: The Freedom to Not Pledge Allegiance.” Constitution Daily, 14 June 2017, constitutioncenter.org/blog/west-virginia-v.-barnette-the-freedom-to-not-pledge-allegiance. Accessed 21 Jan. 2025.

Wheeler, David R. “Do Students Still Have Free Speech in School?”Atlantic, 7 Apr. 2014, www.theatlantic.com/education/archive/2014/04/do-students-still-have-free-speech-in-school/360266/. Accessed 21 Jan. 2025.