Student Speech & Expression

In September of 2023, Kirk Strang presented at the WASDA New Superintendents Academy. The topic was Student Rights and Responsibilities in the Era of Polarized Political Landscape.

The following five-part series takes a deep dive into this topic, focusing on the many aspects of student speech and expression, including:

Part 1: Basic Principles, Seminal Case Law & Building Your Defense
Part 2: Oral or Written Speech
Part 3: Clothing
Part 4: Prayer
Part 5: Summary of Speech Schools Might Be Able to Regulate (Sometimes)

Let’s get started with Part 1 …

BASIC PRINCIPLES

Students have First Amendment rights to free speech. School officials, however, may prohibit or limit student speech that:
1. Is indecent, lewd, vulgar, obscene, or plainly offensive.
  1. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)
  2. Schools have an “interest in teaching students the boundaries of socially appropriate behavior.”
2. Could reasonably be construed to promote illegal drug use.
  1. Morse v. Frederick, 551 U.S. 393 (2007)
  2. Schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”
3. Can reasonably be perceived as part of the curriculum or school-sponsored activities
  1. E.g., speech in a school-sponsored newspaper
  2. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
  3. Schools may exercise editorial control over school newspapers “so long as the[] actions are reasonably related to legitimate pedagogical concerns.”
4. Conveys a true threat
  1. E.g., a reasonable person would believe the speech was intended to cause present or future harm to another or loss to property, considering surrounding circumstances
  2. Mahanoy Area Sch. Dist. v. B.L., 141 S.Ct. 2038 (2021) (citing Virginia v. Black, 538 U.S. 343 (2003)
If speech does not meet one of the preceding exceptions, school districts may generally justify regulations on speech or expression if it:
1. materially disrupts classwork,
2. involves substantial disorder, or
3. invades the rights of others.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

SEMINAL CASE LAW

The Tinker Test.
1. Students on campus (e.g., in class, at the cafeteria, on an athletic field, or during authorized campus hours) have free speech rights, “even on controversial subjects,” unless the speech or expression “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school” or invades “the rights of others.”
2. NOTE: The test left open whether the same test would apply to off-campus speech.
N.J. by Jacob v. Sonnabend.
1. In 2022, the Seventh Circuit held that speech restriction in schools should be governed by the Tinker test, even when the restriction is viewpoint neutral.
2. This decision overruled prior case law that established the Muller test (asking whether the restriction on student expression was reasonably related to legitimate pedagogical concerns).

BUILDING YOUR DEFENSE

Conduct fact finding on student body and faculty observations and opinions.
We should ask ourselves: what do the answers tell us about what will be disruptive going forward?
1. What behavior, symbols, words, and slogans reasonably tend to stir passions and promote conflict and disruption?
  1. Words that are deemed “fighting words” or that otherwise do not merit Constitutional protection.
  2. Symbols that are intrinsically so hostile, that the symbol itself is disruptive (e.g., swastikas or the symbol of the SS).
2. What speech or expression truly disrupts classwork? Teachers aren’t simply allowing their classes to be commandeered by students, so we have to consider what speech or conduct:
  1. Violates the class rules. Teachers and schools can seriously restrict speech and expression in classroom settings because it is relatively easy to prove that an advocate speaking out interferes with class instruction and dialogue. Still, a fair number of teachers do not have viewpoint-neutral class rules restricting expression in the interest of delivering the curriculum.
  2. Is so impactful and pervasive that it is disruptive for the entire building (e.g, threats).
Time, Place, and Manner.
These are often the factors we consider to determine whether speech and/or expression are protected. While other factors apply, the school district’s strength to weakness in regulating speech and expression looks something like this:
1. In class, tight curriculum.
2. In class, more flexible curriculum that might accommodate speech or expression in, e.g., a term paper.
3. In the hallway during passing time.
4. On campus, school day.
5. On campus, after school day during activity.
6. On campus, public access.
7. Off campus, student in activities that signs code.
8. Off campus, student not in activities.
Discrimination.
Speech and expression can be regulated in certain circumstances, provided that the rule and its application are viewpoint neutral.
Creating or Compounding Risks To Safety.
This is an area where we have to make distinctions and reflect those distinctions in our policies and handbooks.

*Example: Guns.

One might argue that a school district can regulate speech about guns if the speech celebrates indiscriminate shootings, makes threats, implies capacity to use guns against others, and other more dangerous statements.

Similarly, one can also argue that statements about supporting the Second Amendment, images of guns with, e.g., deer, to suggest a love of deer hunting and a more “sportsmen’s” perspective on the use of guns, and freedom to own guns are protected speech.

This brings us to the end of Part 1 of this series. Next up, in Part 2, we’ll cover student speech and expression as it pertains to oral or written speech.

Additional articles based on WASDA Conference presentations that may be of interest:

May 24, 2024

Student Speech & Expression, Part 1:

Basic Principles, Seminal Case Law & Building Your Defense

Student Speech & Expression