General Right of Free Speech

Students a constitutional right to free speech and freedom of religion, both in and out of school.  However, their rights are more restricted in school than they are outside of school.  In school, there are limits to a students exercise of free speech.  Most important, schools may restrict students’ speech if the speech:

All other student speech, however, is protected and schools cannot discipline students for exercising their free speech rights.  As the the Supreme Court has indicated, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

Material Disruption

One of the primary bases for restricting student speech is when the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”  This means that student speech, for instance, prevents or creates a significant problem in a teacher instructing students or interferes with a school’s ability to maintain discipline and order.  Such a disruption can occur because the speech itself is unruly, provocative, and the like, but it can also amount to a disruption because it is inappropriate based on the time, place, or manner.  For instance, while it might be fine to discuss politics at school and a school cannot prohibit this conversation in general, it could prohibit it while a teacher is instructing math class because that would be an inappropriate time for the student to be speaking about matters other than math.  Or during social studies class, it might be appropriate for students to discuss the virtues of various countries, but it would be inappropriate for students to waive large flags at one another in class.  In short, the manner in which they express their speech would be inappropriate. 

Most times, schools simply discipline a student after he or she has exercised speech, but schools can also restrict speech if they can reasonably “forecast substantial disruption of or material interference with school activities.”    With that said, this restriction prior to speech cannot be based on an “undifferentiated fear or apprehension of disturbance.”  Rather the school must have a real basis in fact or experience for projecting that the speech will cause a “material” disruption level.  The point is that just because speech might make the school uncomfortable or be a topic it would prefer to avoid, it cannot prevent the speech unless it actually knows the speech will do more than make people uncomfortable.

One final issue that is important to material disruption analysis is determining the student exercising his free speech rights is actually the cause of the disruption.  If the student’s speech itself is the disruption, the school can prohibit it.  However, when the student’s speech is not the disruption, but rather the immature reaction of other students is the disruption, the appropriate action may be for the school to punish or control the disrupting students rather than the speaker.  In these cases, some courts have held that schools must provide protection to the student speaker and allow the expression to continue.  For instance, one student might offer a presentation explaining why he believes that homosexuals should be allowed to marry and others might attempt to shout him down or disrupt the class.  The appropriate action would be to stop the disrupters not the presenter.

Vulgar Speech

The Supreme Court held that it is “a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”  Moreover, the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”   Thus, the Court has permitted schools to discipline students who make a sexually suggestive speech at public school events.

School Sponsored Speech and Public Forums

            The Supreme Court has set out rules for how schools may regulate student speech during school-sponsored activities   The first question is whether the student speech occurs at a “public forum.”  If the speech is at a public forum, a school’s ability to restrict student speech is limited to those occasions when the speech is vulgar or materially disrupts school.  However, at school, public forums exist “only if school authorities have ‘by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public’… or by some segment of the public, such as student organizations.”  If the school has not established a public forum, then “school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.” 

It is also important to understand that what might seem like a public forum is actually a school sponsored forum.  For instance, a school might have a journalism class that publishes a school paper.  One might normally think of a newspaper as a public forum, but in the context of school, it may not be because the school is actually sponsoring the speech.  A student’s speech through the paper is not simply a “student’s personal expression” which would be protected by the Tinker standard (the speech may only be banned if it will cause a substantial disruption).  Rather a student’s speech in “school-sponsored publications, theatrical productions, and other expressive activities [is speech] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”  Thus, schools have the ability to restrict this speech.

In order to be considered “school curriculum” or school sponsored, the activity, regardless of whether it occurs in a traditional classroom setting” must be “supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”  If an activity is school-sponsored, the school may regulate student speech so long as the regulation serves a “valid education purpose” that is “reasonable given the particular circumstances”.  In the context of a school newspaper, the Court found a school’s censorship of two pages of the school newspaper valid, as there was evidence that the paper was a part of the school’s curriculum (the journalism teacher exercised a large amount of control over the paper) and the decision served a valid education purpose (protecting student and parental privacy, as well as younger students from the “frank talk” of the articles in question).  The Court also indicated that a school could regulate a school newspaper for other legitimate purposes, such as when the writing is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”

Drug Related Speech

            The Supreme Court has also held that schools can ban or punish student speech that encourages or celebrates drug use.  “Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”  However, the Court drew a line between speech that simply encourage illegal drug use and speech that is politically motivated.  Thus, a student could not encourage drug use in general, but a student could advocate for the legalization of drugs because this would be political speech.  The Court pointed out that a school could not prohibit this type of speech simply because the school disagreed with the political message or deemed offensive.  In fact, “much political and religious speech might be perceived as offensive to some,” and schools cannot simply prohibit it.

Many school districts have policies that require students to show materials they wish to distribute to other students to school administrators prior to distribution.  Almost all federal courts allow some kind of prior approval regulation by schools.  However, courts have placed restrictions on prior approval policies.  Such policies must not be used simply to stifle student expression, the policy must have clear guidelines by which students will know which materials are and are not allowed, and the process by which the decision is made must be brief and clear.

Restrictions on Time, Place, and Manner

Schools may also regulate the time, place, and manner of student speech.  In addition, if school officials foresee disruption that would not rise to the level that would allow them to ban the speech under Tinker, they may have more discretion to regulate the time, place and manner of student speech.

Student Defiance and School Retaliation

Off-Campus Speech

In some narrow circumstances, schools can discipline students for speech that occurs off campus.  Courts generally require that such student action affect in-school discipline by causing some sort of disruption.  While courts have asserted that off-campus student speech should be given additional protection above and beyond the “substantial disruption” test, most courts today will apply the basis substantial disruption test to off-campus speech cases.  It is unclear what standard should be used when the speech makes its way onto school grounds without the knowledge or intent of the speaker.  Some courts will take into account whether the speaker intended to bring the speech onto campus, or whether it was reasonable that the speech would somehow come onto campus, while other courts deem such knowledge or intent irrelevant.

Student Associations

Many school districts allow for student clubs on campus and during school hours.  Schools may ban clubs that are not open to all students.  Schools can limit student groups to those that are related to the actual curriculum that the school offers.  For instance, a school cold limit student groups to the math club, Spanish club, football rally group, because those groups are related to the curriculum that the school offers.  Schools, however, cannot exclude or allow student groups based on the viewpoints they express or the nature of their association.  Moreover, once a school opens its student groups to groups beyond those that are related to the school’s curriculum, the school cannot limit student groups “on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”  In short, once the school opens up to one non-curricular student group, it must open itself to everyone.  The argument that these groups are school sponsored would not assist the schools here.

State Laws

            It is always important to examine state law in free expression cases.  While the preceding material describes federal laws which states must follow, states may provide additional protections.  For example, some states may provide additional protections for freedom of the press to students, or detail how dress codes and uniform policies should be enacted and for what reasons.