Monday, April 15, 2013, Attorney Lisa Schmidt presented Straight Talk on Students’ Rights at the Ferndale Public Library. This first of a 4 part series on the talk will cover Students’ Free Speech rights in public schools.
The Supreme Court has famously said that students do not “shed their constitutional rights . . . at the schoolhouse gate.” However, those rights are often restricted by the school’s compelling government interests in:
- Educating its students
- Teaching civic values to young citizens
- Protecting the safety of children
Schools also act in loco parentis (as the local parent) for children in their custody, which allows them to regulate student behavior more easily than public colleges or other government entities that deal with adults.
Student speech can only be disciplined if it substantially disrupts a school function or educational purpose or interferes with another person’s rights. For example, the courts have ruled:
- Students may wear black arm bands to protest war
- Students can’t be required to recite the Pledge of Allegiance and must be given the ability to opt out
However, the school is generally only permitted to discipline students for behavior on school property or at a school function. So when a student gave his teacher the finger at a restaurant one evening, the school was not allowed to discipline him the next day.
Schools are still allowed to restrict the time, manner, and place of speech (for example by banning obscenities or requiring students to remain quiet in the library).
They have much broader authority to regulate speech that could appear to be endorsed by the school. In that context, schools are allowed to exclude or punish speech that does not match their educational purpose. Decisions can be based on the content of the speech, which is very rarely allowed outside the school context. It has been used to discipline students who:
- Use lewd innuendo in a speech during an assembly,
- Run articles on teen pregnancy and divorce in the school paper, and
- Hold up drug-related signs during a school field trips.
Today’s big issues center on Internet speech and bullying. Michigan schools are required to have anti-bullying policies that prohibit speech intended to harm or harass another student. The limits of these policies have not been tested, but likely will be in the future.
Schools are also trying to punish speech that occurs on the Internet (through Facebook, Twitter, or Instagram). The courts are divided on how to address this issue, but generally the school must show a disruption did or was likely to happen at the school before disciplining the student. Most courts also require some connection between the speech and some school function:
- Where the speech was created,
- Where it was viewed,
- Whether it created on a school-owned device, or
- Whether it was directed at a teacher or administrator.
The courts have made clear that Free Speech cases are fact-driven, so results can vary based on each case’s circumstances. They are hard to predict, but interesting to follow.
For more information: