January 27, 2025
Part 5

Student Speech & the First Amendment: Student Handbooks & Codes of Conduct

First Amendment in Public Schools Student Handbooks

In September, Kirk Strang presented on the topic of Student Speech & the First Amendment at the WASDA fall conference.

In this seven part series we’ve been covering all of the key points of the presentation, and thus far we’ve covered the following:

In Part 5, we continue our conversation on student speech and the First Amendment with a focus on student handbooks and codes of conduct, specifically legal considerations and strategies.

Let’s begin …

LEGAL CONSIDERATIONS AND STRATEGIES

  1. Review athletic/extracurricular codes of conduct and district policies regulating off-campus speech in light of the Mahanoy2 decision.
    1. The Mahanoy decision identified types of off-campus speech that might be deemed permissible for schools to regulate in the future:
      1. Engaging in serious/severe bullying or harassment that targets particular individuals;
      2. Threatening students or teachers;
      3. Failing to follow rules regarding lessons, writing papers, using computers, or participating in other online school activities; and
      4. Breaching school security devices, including material maintained within school computers.
    2. Morality clauses, such as a provision banning “conduct unbecoming an athlete,” are too vague to withstand free speech concerns.
      1. Instead, identify specific behavior that can be prohibited, e.g., use of alcohol, tobacco, and drugs. 
      2. Then create categories of behavior: behavior that violates certain levels of the criminal code; behavior that offends district policy; or behavior that directly affects the welfare of the student’s athletic team/activity.

    3. While Mahanoy was unsettling to many, the decision is not without limits. The court was asked whether a student’s First Amendment rights could be restricted by a co-curricular code and, if so, to what degree. The Court concluded that they could not in circumstances where a student’s off-campus, profane rant posted on social media (messaging) did not meet the standards the Court has established, when applied in a co-curricular context. 

      Thus, speech and expression are protected, but conduct prohibited by a co-curricular code is not necessarily equally protected, unless the conduct itself rises to the level of Constitutionally protected expression.

  2. If the district regulates private, personal conduct that is outside the school day and off school grounds, consider:
    1. Determine whether speech or expression is involved. If so, the district will have to show that the speech or expression can be regulated because of its content (e.g., speech that includes a true threat) time, place, and/or manner, or, at the very least, that it is not protected speech.
    2. Does the conduct offend or violate policy values that the district is trying to impart? For example, we know that school district policies and programs to promote wellness and discourage illegal drug use can be invoked to sanction speech (the “Bong Hits for Jesus” case).
    3. Does the code regulate, e.g., dress choices in a way that (arguably) promotes traditional gender choices for off-duty attire? If so, be ready to demonstrate why this off-campus matter is a school district issue or why the matter in question is not really an off-campus issue because of its effect on the campus and those in it.
    4. Find conduct unrelated to speech that is rational to prohibit or regulate.
    5. Be careful about claiming disruption based on speech that challenges, lampoons, or speaks against the school board or administration on a current issue. Free speech can be “disruptive” in the sense it may encourage others to question school authorities, but this may be what our courts are trying to defend.

Next up, in Part 6 of the series, our conversation on student speech and the First Amendment shifts to student use of technology.

Additional articles that may be of interest:

© 2022, Strang Law LLC