Free speech in education is a big and important subject. Free speech on campus also had a lot of laws, rules, regulations, customs, and practices surrounding it. Students may face school discipline over their expression of views that students consider to be free speech, but the school does not. Free speech has its limits on school campuses. Free speech rights can differ markedly at different school levels and in different schools and school programs. Know your free speech rights before risking school discipline. Retain the Lento Law Firm's premier Student Defense Team if you face school discipline for exercising your free speech rights. Call 888.535.3686 now to tell us about your student's case, or complete this contact form. Don't risk your education and future to school discipline.
What Is Free Speech?
Free speech is the right to express oneself as one chooses, within reasonable bounds, without facing the threat of government sanction. Free speech may include the freedom to express one's political, social, moral, religious, or philosophical views. Free speech may certainly include evaluating government proposals, government actions, and government officials or candidates for public office. Free speech may also include freedom of artistic expression including expression that criticizes, mocks, ridicules, or endorses political, social, moral, religious, or philosophical views.
Free Speech in Education
Free speech in education addresses the freedom to speak frankly as one chooses, on a school campus or about a school subject. Free speech rights are important in the public square, the workplace, the home, the religious organization, and government or political forums. But they are also important in education. Indeed, free speech rights may be especially important in education because of a school's role in shaping student character, ambition, attitude, and outlook. As the Supreme Court famously wrote in Tinker v. Des Moines Independent Community School District (1969) when upholding student rights to wear armbands protesting the Vietnam War, “Students don't shed their constitutional rights at the schoolhouse gate.”
The state and federal constitutional clauses guaranteeing free speech rights do not generally distinguish among free speech forums, whether in education or otherwise. But courts applying those free speech guarantees often do consider the forum. Free speech rights in education may be either broader than in the workplace, street, or government or narrower than in those places, depending on the specific case. Consult our Student Defense Team on your free speech rights in education.
Common Disputes over Free Speech in Education
Disputes over free speech in education tend to involve different speakers, forums, subjects, forms, and effects. Free speech disputes aren't always over the same person, forum, or subject, or in the same form, or having the same effect. Students are often involved in free speech disputes on campus. But students are not the only speakers whose free speech rights school officials may question. Students may also claim offense at the exercise of others' free speech rights on campus. Common disputes over free speech in education include:
- the speech of classroom teachers, instructors, or professors in the classroom on controversial current subjects about which students may strenuously disagree;
- the speech of students in the classroom or other public locations on campus on controversial current subjects or in ways that students maintain offend, harass, or disrespect;
- the speech of guests at campus public speaking events, on controversial current subjects on which students, instructors, administrators, alumni, accreditors, or other constituents strenuously disagree; and
- the speech of anyone on campus that tends to threaten, harass, offend, or disrespect members of a protected class under anti-discrimination laws.
What Are Free Speech Rights?
Free speech implies liberty from something. The freedom part of free speech is the right to freedom from government sanction. The phrase free speech does not imply a right to speak freely in all situations to anyone on any subject without consequence. Rather, free speech implies the right to remain free from government retaliation or sanction. Thus, a student at a public school may have the free speech right to avoid school discipline for having stated an unpopular political view at a campus rally. But a private employer might lawfully decline to employ the student, another student might lawfully decline to share an off-campus apartment with the student, and a private charitable organization might decline to accept the student as a volunteer for the same exercise of free speech rights. Free speech means freedom from government action, not freedom from other consequences. Retain our attorneys if your school is interfering with your free speech rights.
What Does Free Speech Accomplish?
The Constitution's framers placed free speech rights in the First Amendment because free speech is at the bedrock of a democratic republic. The framers' view was that free speech is essential to getting at the truth about important public matters, including especially the performance and proposals of government agencies and actors. Free speech is essential to making wise decisions about who should govern the American electorate and how they should govern. To make informed voting decisions, Americans must be free to criticize government officials and actions in ways that the government would otherwise sanction were it not for free speech rights. Free speech discourages tyranny and preserves democracy. As Justice Oliver Wendell Holmes Jr. put it in his famous dissent in Abrams v United States (1919), “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Scholars have advocated other bases for free speech rights such as the rights of autonomy and self-realization.
Constitutional Sources of Free Speech Rights in Education
The Constitution's First and Fourteenth Amendments provide for free speech rights in education. The First Amendment provides in relevant part that “Congress shall make no law … abridging the freedom of speech….” The First Amendment thus only prohibits the federal government, through Congress, from restricting free speech rights. The federal government does not generally operate schools. State government and local state agencies like public colleges and universities and local school districts operate schools. The First Amendment, though, also restricts those state agencies from interfering with free speech through the Fourteenth Amendment. The Fourteenth Amendment prohibits state actors from depriving citizens of due process. Since as early as Gitlow v. New York (1925), the Supreme Court has incorporated the First Amendment into the Fourteenth Amendment through the Fourteenth Amendment's due process clause.
Disputes over free speech rights in education are thus generally disputes over the application of federal law developed under the First and Fourteenth Amendments. Litigation over free speech rights in education is typically in the federal courts. Yet your state's constitution may well also guarantee free speech rights. Your state's courts likely would interpret those rights consistent with the federal protections. Consult our Student Defense Team to understand the federal and state sources of your free speech rights.
Public School Versus Private School Free Speech Rights
Your free speech rights may well differ depending on whether you attend a private school or public school. The First and Fourteenth Amendments only prohibit the state and federal government and local state agencies like colleges, universities, and school districts from interfering with free speech rights. The First and Fourteenth Amendments do not generally prohibit private schools from restricting free speech rights. If you attend a private school, you may have only limited or even no free speech rights. Yet some private schools promise free speech in school policies and codes or simply respect free speech rights to the same extent as the First and Fourteenth Amendments would require of a public school. Consult our Student Defense Team on your free speech rights in private schools.
Free Speech Rights Versus Personal Interests
Rights, though, are not the same as interests. You may have the constitutional right to free speech. But speaking freely may not be in your interest. Your school may not have the right to discipline you for your free speech. But your teachers or professors may decline to write you a recommendation letter or give you a positive reference when you exercise your free speech rights in a disruptive or offensive manner. Your right to free speech may protect you against public school action. It may not protect you against the personal decisions of individuals not to support and encourage you. Do not confuse your exercise of free rights with your wise discretion as to your best interests. Sometimes, exercising your free speech rights on campus is the best personal decision. Sometimes, doing so is not the best personal decision.
Rights Closely Related to Free Speech in Education
Free speech rights are actually a bundle of related rights. The First Amendment protects more than just free speech. It also expressly protects freedom of the press, freedom of assembly, and freedom of petition. By Supreme Court interpretation in U.S. v. O'Brien (1968) and other cases, the First Amendment also protects non-speech freedom of expression. By Supreme Court interpretation in Roberts v. United States Jaycees (1984) and other cases, the First Amendment also protects freedom of intimate or political association. The full First Amendment text states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This bundle of related rights may protect any of the following forms of school expression, depending on the circumstances:
- a student speaks before a crowd at a campus rally on moral, philosophical, and social issues;
- a student speaks privately to other students in witness of the student's religious affiliation;
- a student organization posts flyers with a social message on campus bulletin boards;
- a student organization prints and distributes t-shirts with a political message, and students wear the t-shirts about campus;
- students gather in an informal private club to share their heritage and cultural association;
- a student wears a head covering associated with the student's religious affiliation;
- a student pierces body parts and wears ornamentation associated with the student's cultural heritage;
- a student wears a button professing allegiance to an advocacy organization backing a social movement;
- a student solicits contributions to a charitable organization dedicated to preventing harm to a certain vulnerable population;
- a student dissents respectfully in class from the professor's political and social views when asked for the student's opinions.
What Are the Limits to Free Speech in Education?
Free speech has natural limits in education, such as in the workplace, the public street, and other locations and forums. Freedom of speech in education is not an absolute right. The Supreme Court and lower courts have approved government limits, including school limits on and school discipline for the exercise of free speech. Those limits include the following general doctrines and situations. Consult our attorneys if you face questions or disciplinary charges over school limits on your free speech rights.
Speech in Education Presenting Clear and Present Danger
A first limit on free speech is when the speech threatens imminent danger. The classic example is falsely shouting fire! in a crowded theater, likely to cause a stampede and serious injuries. The educational equivalent might be shouting fire! in a crowded classroom or school assembly. Government, including school officials, may prohibit student speech that endangers other students. As Justice Oliver Wendell Holmes Jr. stated in his famous dissent in Abrams v. U.S. (1919), “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.”
Speech Disrupting Orderly Education
Schools have even greater rights to limit free speech when the speech disrupts the orderly provision of education. Classroom instruction, for instance, generally requires only one speaker at a time for all students to hear. If the teacher is speaking, students should not be speaking, notwithstanding their free speech rights. Teachers and other school officials may thus remove and discipline students who speak out of turn, disrupting classroom instruction. The Supreme Court in Bethel School District v. Fraser (1986) held that while the government could not prohibit adults from speaking offensively to one another when debating political points in a public forum, children in a public school do not have the same free speech rights, given the school's interest in orderly instruction.
School-Sponsored Speech
School officials, especially at the elementary and secondary school levels, may also limit student speech that appears to make the school sponsor and endorse views inappropriate for the student's age level. In Morse v. Frederick (2007), the Supreme Court permitted a high school principal to suspend a student who refused to remove a banner displayed in the school that encouraged illegal drug use. The Court held that the school banner could make it appear to students that the school supported illegal drug use. School officials may limit student speech that appears to come from the school, especially at lower levels where students may be unable to distinguish between school messages and student messages, and especially where the message is inappropriate for student development at their age level.
School Newspapers
Schools, especially at the elementary and secondary level, also have a greater right to limit messages in school newspapers, newsletters, and similar forums closely associated with the school. The Supreme Court in Hazelwood School District v. Kuhlmeier (1988) permitted school officials to remove information about teen pregnancy and the effect of divorce on students from a school newspaper. School newspapers are so closely associated with the school's administration that students may confuse views expressed in them as if coming from the school rather than a student or group of students. This limit is similar to the above school-sponsored speech limit. Schools would be less likely to be able to regulate underground student newspapers that bear no indicia of school sponsorship.
Speech in Education Destroying Reputation
Government, including public schools, may also limit and sanction false speech that unreasonably destroys reputation. The Supreme Court, in Gertz v. Robert Welch, Inc. (1974), approved state laws for civil liability for defamatory remarks as long as the state does not impose that liability on a speaker who was without fault in making the remarks. Subsequent Supreme Court cases have imposed an actual malice requirement to hold a speaker liable for defaming a public official or public figure. Thus, a school could refuse to permit or publish student speech in which the student knowingly or carelessly defames others.
Pornographic Speech in Education
Public schools and other government agencies may also prohibit patent pornographic speech. In Miller v. California (1973), the Supreme Court held that government prohibition of pornography is permissible when the speech, applying contemporary community standards and taken as a whole, appeals to the prurient interest, depicts in a patently offensive way sexual conduct that state law specifically defines, and the work lacks serious literary, artistic, political, or scientific value. Schools may thus limit student speech and expression that community standards would determine to be pornographic under this complex definition.
Lewd or Profane Speech in Education
Public schools, especially at the elementary and secondary school levels, may further limit speech that may not meet the definition of pornography but is nonetheless lewd or profane. In Bethel School District v. Fraser (1986), the Supreme Court permitted high school officials to suspend a student for giving a class officer nomination speech in school, including clear sexual references. The speech violated the school's policy against offensive speech. Even though the speech was not disruptive of instruction, the Supreme Court held that the high school could limit sexually vulgar, lewd speech.
Harassing Speech in Education
School speech codes against harassment present more problematic limits on free speech rights. Schools frequently adopt student codes of conduct that prohibit students from offending and harassing other students based on protected characteristics such as race, sex, and religion. Indeed, colleges and universities receiving federal funding routinely adopt Title IX sexual misconduct policies prohibiting and punishing sexual harassment. Those codes may define sexual harassment to include incidents involving only speech, not accompanied by actions when the speech creates a hostile environment. These codes, though, may chill other free speech rights to speak to social issues involving race, sex, and religion. The Supreme Court has not decided a school speech code case, although lower federal courts have, in some instances, rejected speech codes or their application as violating First Amendment free speech rights. Doe v. University of Michigan (E.D. Mich. 1989) is an example of a lower federal court rejecting a university speech code.
Gang Symbols and Dress in Education
Schools at the elementary and secondary levels may generally use dress codes to prevent students from wearing gang symbols. They may also restrict student speech and displays promoting gang participation. Dress or expression promoting violence among students or likely to intimidate students to submit to gang rule disrupts the school environment and undermines its educational mission. However, students have sometimes successfully challenged dress codes that unlawfully discriminate based on sex, enforce traditional views of sex roles or distinctions, or that bear no relationship to the school's educational mission. Students may also have religious freedom rights regarding their dress or adornment, such as the display of religious symbols. And courts would even more likely reject suppression of dress or expression in higher education for any reason.
School Walkouts as Free Speech
School officials at the elementary and secondary school levels may generally punish student walkouts under standard attendance, absence, disruption, disobedience, and school departure rules. Schools have the obligation to enforce truancy laws and apply their absence and attendance policies uniformly toward the compulsory education statute's purposes. If students protest school policies or other matters by leaving the classroom, leaving the campus, or staying home from school, schools may apply the same policies they would apply to students who engage in those behaviors for non-expressive reasons. Schools may suspend students for leaving campus in protest when that action violates usual school rules. But school officials must not treat protesters more harshly than other students who break the same rules. Colleges and universities, where truancy laws do not apply, would not have the same broad authority, although they might well apply their basic attendance policies without discriminating as to protest speech.
Non-Curricular School Clubs as Free Speech
Schools at the elementary and secondary levels may generally adopt policies limiting school clubs to curricular matters. Schools that do limit clubs to curricular matters may refuse to authorize a non-curricular club, even though club participation would involve free speech and freedom of association. Thus, the school would approve a band club, glee club, history club, or writing club but not approve clubs promoting political or social causes. But if the school instead permits clubs of any kind, then school officials should not generally distinguish among clubs based on the content of the club's expression. Doing so could violate the participating students' free speech rights.
Typical Subjects in Free Speech Disputes
Free speech disputes in education can arise around any subject. However, free speech disputes in education tend toward common subjects. Those subjects tend to reflect current debates and issues of the day. Typical free speech disputes on campus may involve:
- student support in a classroom discussion, student discussion board, or similar authorized forum for a political candidate or public official unpopular with other students;
- student support in an authorized discussion forum for a social or moral stance unpopular with, or considered offensive by, other students;
- student support in an authorized discussion forum for a political referendum on a controversial subject, especially around social reforms;
- student support in an authorized discussion forum for economic policy arguably restrictive of personal or property rights;
- student interruption of instruction with personal political, social, moral, or religious opinions that may not be germane to the instruction.
Free Speech Rights in Elementary Schools
School officials have greater latitude to limit student speech in elementary schools than in other educational settings. The Supreme Court consistently holds that schools may limit student speech to achieve their legitimate instructional goals. In Mahanoy Area School District v. B. L. (2021), the Court recognized again that:
“Schools have many responsibilities: They must teach basic and advanced skills and information; they must do so for students of different backgrounds and abilities; they must teach students to work independently and in groups; and they must provide a safe environment that promotes learning.”
Generally, the younger the student, the greater the school's need for preserving instructional order, reducing confusion over school-sponsored messages, and protecting the student from lewd and profane speech. School officials may use these grounds to restrict elementary school student speech and punish students who violate their restrictions. At the same time, elementary students generally have a lesser understanding regarding the nature and limits of speech. School officials should not overreact to episodic innocent, unknowing, or uncontrolled expressions of lewd, profane, or other inappropriate speech. Let us help if your student's elementary school is punishing your student for in-school speech.
Free Speech Rights in Secondary Schools
A student's free speech rights increase somewhat in middle school and high school, especially if the speech is not disruptive and does not place the school in the position of appearing to sponsor the speech. The Supreme Court, in Tinker v. Des Moines Independent Community School District (1969), upheld the right of high school students to wear black armbands in non-disruptive protest of the Vietnam War. Similarly, the Supreme Court in Mahanoy Area School District v. B.L. (2021) upheld the right of a high school student to post vulgar criticism of a school decision denying her a spot on the cheerleading team on her social media account. The student's speech was off-campus and not disruptive.
But high school officials may still limit speech if disruptive or fitting another exception, depending on the circumstances. The Supreme Court has several times held that secondary school officials may restrict student speech and punish students who violate their reasonable restrictions. The Supreme Court approved high school restriction and punishment of lewd or profane speech on campus in Bethel School District v. Fraser (1986), speech advocating illegal drug use on a school banner in Morse v. Frederick (2007), and speech in school newspapers and yearbooks in Hazelwood School District v. Kuhlmeier (1988).
Free Speech Rights in Higher Education
Free speech rights expand further in higher education. Students at colleges and universities are generally much more able to hear dissenting speech without the speech disrupting instruction. Students at colleges and universities are also generally much more able to distinguish student messages from school messages. College and university students are also generally more able to make informed judgments about the appropriateness of behaviors that student speech may advocate, such as sexual conduct or drug use. The Supreme Court decisions restricting student speech on those bases involved high school speech, not college or university speech.
However, the same principles could still apply to limit student speech at a college or university in more extreme cases. See, for example, the University of Texas's handbook of operating procedures on freedom of expression, detailing where, when, and how the university will limit or allow student speech. See also the University of Florida's policy on free expression. Under policies like this one, a student who advocates drug use or sex in a class discussion might not unduly disrupt instruction. The college or university would likely not have the authority to punish the student for the protected speech. Yet if the student spoke out of turn while using lewd and profane language in threats directed at other students in the class, the disruption may well authorize school punishment. Likewise, a student might criticize professors or programs on social media, and the college or university would not have the authority to punish the student. But if the criticism included threats of violence against the professors or school, the school would likely have the authority to suspend and expel the student for safety and security concerns. Consult our attorneys if your college or university punishes you for your free speech.
Free Speech Rights in Graduate School
Student free speech rights in graduate school should generally track free speech rights in undergraduate programs. Graduate students should generally have the liberty to exercise their free speech rights when not disrupting instruction. A graduate student brought the Doe v. University of Michigan (E.D. Mich. 1989) case rejecting a university speech code. However, the focused nature of graduate school may somewhat proscribe the customs and conventions for free student expression. Immature, undeveloped, emotional speech not reflecting graduate school community standards may be more disruptive than the same speech would be in an undergraduate setting. Graduate students also generally depend more than undergraduate students on close relationships with faculty advisors. Controversial or disruptive speech may affect those relationships. Consult our attorneys for help in understanding your graduate school's free speech rights and interests.
Free Speech Rights in Professional School Programs
Professional school programs further alter the free speech rights and interests of students. While college and university professional programs will generally fall under the school's general free speech policies and obligations, professionalism may dictate modifications in how, when, and what the student expresses. The Association of American Medical Colleges, for instance, lists examples of medical student discipline for unprofessional speech posted to social media. When a professional student shares clinical experiences and patient information on social media, even in the context of criticism or personal opinions, the professional school may discipline for unprofessional breaches of confidentiality. Professional schools have broader authority to protect the image and reputation of the profession for public trust. That authority may reach to limit student speech. Consult our attorneys for help interpreting your free speech rights in professional school. Don't risk your professional education without informed advice.
Off-Campus Speech
Student free speech rights expand when off campus. Schools may not generally claim that off-campus speech is disruptive. Nor would off-campus speech generally appear to confuse students over whether the school endorses an inappropriate view. Off-campus speech is also less likely to offend and distract students from instruction. The Supreme Court thus held in Mahanoy Area School District v. B.L. (2021) that a high school student whose coaches passed over for the cheerleading team had the right to post vulgar criticism of the cheerleading team, school, and coaches on her social media account. The school's only aim was to suppress student dissent to a school decision. That aim directly contradicts the goal of the First Amendment. The right to speak freely off campus would likely not extend, though, to threatening or harassing conduct directed at another student if it affects the student's ability to study at school.
Content Restrictions of Free Speech in Education
School officials at all levels have less authority to restrict speech based on its content. If a school prohibits student speech of any kind in a certain non-public forum, such as posting flyers in school halls that may damage walls or interrupt pedestrian flows or hanging banners on school structures in ways that damage, deface, or distract, then the school may have authority to discipline students who break that blanket speech ban. However, school officials may not single out political speech, artistic expression, or other speech based on its content while allowing other speech in the same forum. Thus, if a school allows student non-curricular posts on a student bulletin board, then it must generally allow all posts, not just speech that school officials favor. Consult our attorneys about content restrictions on your school speech. You may well have relief from discipline and the right to resume or continue posts.
Censorship Versus Selection of Materials in Education
In determining what free speech rights students have, it helps to distinguish between school censorship of speech and school selection of instructional materials. Schools may generally determine the materials they will use for instruction. Professors and department heads need not adopt materials the students propose or favor. A professor who rejects materials for instruction, even materials that students present and propose, is not likely violating student speech rights. However, schools may run afoul of free speech rights when attempting to remove student materials or student-favored materials from general collections based on the materials' content. Some students, parents, or members of the public may object to including materials of questionable educational value in general collections, such as a school library. And school officials may make reasonable judgments about the age appropriateness of those materials. But censoring general materials to exclude certain political, social, religious, or other messages may violate student free speech rights.
The Role of a Defense Team in School Free Speech Disputes
If you face school discipline over your exercise of free speech rights, your school will have disciplinary procedures like those at the University of Tennessee. That policy, typical of other school policies, expressly provides that the discipline policies will in no event “be construed to discipline a student for speech protected by the First Amendment to the United States Constitution (e.g., mere insulting or offensive speech).” Our attorneys may be able to help you invoke your school's similar procedures to safeguard your education and reputation, raising your First Amendment rights. Academic administrative procedures can be complex. Disciplinary charges can be embarrassing, frightening, and confusing. Don't risk your education, reputation, and future to self-representation or representation by an unqualified local criminal defense lawyer. Our Student Defense Team has the skills and experience you need for your best outcome to disciplinary charges based on your free speech.
Premier Defense Representation Available Nationwide
The Lento Law Firm's premier Student Defense Team is available nationwide if you face school discipline related to your exercise of free speech rights. We have helped hundreds of students at all levels of education face and overcome school disciplinary charges, including charges related to the exercise of free speech and other First Amendment rights. Call 888.535.3686 now to tell us about your student's case, or complete this contact form.
