Today's blog post is my second about free speech rights for students in school. My first post addressed what rights the First Amendment guarantees to all citizens and how they may be limited. Today, I'll move and discuss precisely what limits school officials can place on students in public schools. (Remember that private schools that do not receive federal funds have different standards!)
Tinker v. Des Moines: Students have a Right to Free Speech
Recall that the law is composed of legislation and constitutional provisions as well as the case law created by judges who interpret those provisions. Since the First Amendment, like all Constitution provisions, is bare bones in what it says, judges have created a great deal of the law as we saw from the Chaplinsky standard on fighting words.
The most significant case in the area of free speech for public school students came out of a situation in Des Moines in 1969. Five students wore black armbands to protest the Vietnam War. The school system suspended the students, and one of them, Mary Beth Tinker filed suit. As the case made its way to the US Supreme Court, eventually Judge Abe Fortas, writing for the court opinion said that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The bottom line is that free speech does exist within the boundaries of the public school walls.
However, just like reasonable time, place and manner restrictions are permitted on free speech in all public areas, some restrictions are allowed when the speech is not protected. The courts define unprotected speech as speech that when it “materially and substantially interfere” with education in the school.
Public schools may limit speech when they have an interest in doing so for the operation of the school. That tends to fall into a few narrow categories:
- Speech that disrupts the functioning of the school
- Speech that impairs others’ learning
- Speech that creates safety concerns
- Certain offensive speech (it ruins the environment for all students
Additionally, any restriction on speech and any punishment must be content neutral. That means that the schools cannot prohibit t-shirts advocating restrictions on gun control, but permit t-shirts that promote gun ownership or precluding governmental limits on gun ownership.
Students Outside of School
When students are out of school, in public places such as walking down the street, in public parks, or in public buildings, they enjoy the same rights as does anyone else, regardless of their age or what school they may attend. Schools can regulate students' speech on the school property, but not off the property.
It's a little tricky to predict how the courts will address on-line speech. Generally, the school can't regulate what you post online when it is after hours, and a student is not in school. However, the school may limit materials published online while students are on on-campus. Additionally, online speech can be regulated when that speech is disruptive to the environment and creates safety concerns. Our office is aware of cases when school administrators disciplined students have for online speech that was not political and disrupted the functioning of the school. The lower courts refused to protect that speech.
My next post in this series will address free speech protections to actions, specifically student walkouts. Please contact me if you have questions about your rights as a student or if you would like to arrange for us to speak to your class or organization about these important free speech rights.