Litigating Against Schools - First Amendment Violations

When you send your child to a school, you're trusting that school with many decisions regarding your child's life. That school is going to have a lot of input when it comes to organizations your child can join, functions your child can attend, and even - at times - what your child can rightly say or do while they attend that school.

However, just because your school has input does not mean that it is always correct - or that it will remember that your student has legally-protected rights.

If you feel that your student has experienced unfair treatment, and you have gone through the typical channels for registering your disapproval with the school, you may have another avenue for relief. You do have the option to file a lawsuit against your student's academic institution.

To assist with this, you will need experienced legal aid on your side. Litigating against your school will present many confusing challenges. Working with a lawyer who knows precisely how to litigate against schools successfully will be a game-changer for you.

Joseph D. Lento has been assisting students and families for years in as they work to find relief. He can do the same for you and your student.

The First Amendment to the United States Constitution

The First Amendment to the Constitution of the United States of America reads as follows:

“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.”

In slightly more detail, the ACLU notes that the First Amendment entitles each United States citizen to:

  • Freedom of Religion: This means that we have the right to practice the religion of our choice (or no religion) without involvement from the government.
  • Freedom of the Press: This right entitles us to publish and distribute information.
  • Free Speech and Expression: The First Amendment gives us the right to speak our mind, to share the ideas and beliefs that we have, and to express ourselves freely.
  • Freedom of Assembly: We have the right to peacefully protest, gather in groups, and otherwise assemble without violence.
  • Freedom to Petition: This freedom is the right to sue for violation of our rights, as well as to lobby for the policies and laws that we believe in.

This right to the freedom of speech, assembly, and each person's own opinion does not end at the doors of any academic institution in the United States. In fact, as as the National Coalition Against Censorship put it, teachers and students alike do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

One small exception may exist, continues the NCAC: Schools can implement and practice the right to free speech “in ways that do not interfere with schools' educational mission” — for example, students cannot argue that they have the right to correct answers on a test. Outside of specific scenarios that pit First Amendment rights against the practicalities of education, students have those same protections as anyone else.

United States Schools and First Amendment Violations

These assurances have not stopped some schools across America from ignoring students' rights. In one Chicago school, one student said that they received a ‘threatening ultimatum' for ‘negative consequences' should they interrupt a question-and-answer session with the town's mayor. In another case, a Michigan student launched a parody Instagram account “mocking a teacher” before shortly receiving a notice of expulsion from his school.

In both cases, the students were able to claim that their respective schools had violated their First Amendment rights. Both were able to seek compensation for damages and reduced disciplinary measures from their schools.

First Amendment violations at United States schools are nothing new. The Supreme Court has even weighed in on students' rights cases ranging from passive, peaceful protests to potentially indecent or inflammatory comments by students, school censorship, and more. For years, schools have routinely steamrolled students' rights regarding their ability to practice their religion, the right to report on school events, and their right to express themselves freely in and out of school.

If your child has experienced this type of censorship or unfair treatment, it may be time to take a stand.

First Amendment Practices in Schools Across America: What Your Student Needs to Know

When your student goes to school and exercises their right to freedom of speech, there are certain best practice guidelines that they should be aware of. The ACLU has created a simple guide to help your student navigate the ins and outs of their First Amendment rights. Here is a selection of question and answers that may help:

Can my school limit my speech?

Schools have the ability to limit the speech of their students if your free expression substantially disrupts school activities, or if your expression infringes upon other people's rights.

What should I do if my school tries to limit my speech?

If this happens, you should request a specific copy of the rule your school is citing against your or your student's actions. Ask for an explanation why, as well. Later, your legal team may be able to use this information.

Can I protest at school?

If an action on the part of the administration, or anything else, has moved your student to protest, check the code of conduct for information about peaceful, disruptive protests. You might find that you have limited opportunities to do so (for example, during lunchtime, or before school starts), but otherwise that you are free to exercise that right.

Can my school regulate my use of social media?

If you post material after school hours, off your school's campus, and about topics that don't relate to your school at all, your school cannot punish you for that. If, however, those criteria do apply to the content you are posting, your school may be able to argue that it has a say.

Can my school punish me for protesting, for social media, or for exercising my right to free speech?

If you break any other rules in the process of speaking freely (for example, skipping a class, using social media at school, or saying something inflammatory about a staff member or other student), your school may discipline that action to the degree that they would if you were not protesting.

If your student's school does decide to pursue punitive measures, you should speak with a legal aid as soon as possible to protect your student's rights.

When Schools and Students Retaliate: What Due Process to Expect

If your student has exercised their right to free speech, assembly, or any of their other entitled rights under the First Amendment, your school might have retaliated against their unpopular (if protected) actions. Your school may also have failed to protect your student from others who may not share the same opinions or beliefs.

In this case, the first event that will occur is, very simply, your school's grievance procedure. This may feel unfair. It may feel like undue consequences for your child. However, going through this process will show that you tried to resolve issues with your academic institution on their terms, at least initially.

The specific actions that your school may take should be outlined in your school's Student Handbook or Code of Conduct. That same document should also contain language detailing your student's protected rights. According to one school's code of conduct, you may generally be able to expect the following procedures:

  • Written notice from your school regarding the specific charges or complaints your school has registered against your child's actions
  • A meeting with the principal or a panel of staff at your student's academic institution
  • A recommendation from your school as to academic penalties, sanctions, or restorative actions.

Depending upon the level of your student's perceived infraction, the punitive measures your school may impose could include:

  • A formal or informal reprimand
  • An enforced behavioral contract, mentorship, or therapy
  • Loss of privileges
  • Suspension
  • Expulsion
  • Recommendation for external prosecution

Once your school has meted out punishment, you will need to file an appeal with your school. This, again, is a step that you'll need to take prior to litigation to show that you have exhausted all avenues of relief. Typically, to file an appeal, you'll need to show that the school treated your student unfairly, did not follow due process, or that you have new information the school did not consider.

You'll likely have only a short window of time in which to file this appeal, and the documents themselves will have to be very carefully worded. If you have not hired a student defense lawyer by this point, now would be an excellent time to do so. This will also help your legal team craft your case to be cohesive and strong from the very beginning of your process of protecting your student.

How an Expert Lawyer Can Help Fight Your School's First Amendment Violations

When you are considering initiating litigation against your school because your school violated your student's first amendment rights, you'll need to work with a clever, competent lawyer in order to build and pursue the best strategy for your case.

The reasons for this are simple:

  • Your school will have lawyers, so you should, too. Even if you technically could draft the documents, file the paperwork, and represent yourself in court, unless you have a lot of experience in this area, you'll be outmatched by the experienced legal experts your school already has. They've been protecting your school for years, and are well-versed in arguments to counter claims of First Amendment violations.
  • Your legal expert will be able help you determine your objective and compelling cause of action. When you're protecting your child, who is likely hurting, scared, and frustrated, it can be (understandably) difficult for you to remain dispassionate. A legal advisor will be empathetic, but will also be able to assess your case from an objective standpoint. This can help you see if you have the basis for a formal lawsuit.
  • Your legal team will help you build a strong, strategic case. Whether you're seeking compensation, relief, or arguing disciplinary measures your school has taken against your child, your advisor can delve through precedent, analyze the law and your school's policies, and find a way to work towards a successful outcome for your family.
  • Your advisor can help guide you through due process. If this is your student's first experience with the disciplinary process at your school, this can be incredibly overwhelming. You'll need to exhaust your school's grievance procedures, then file an administrative complaint, and finally, work to file a lawsuit - which will also involve learning how to work within your local court's system. Your school's procedures alone may entail meetings, hearings, investigations, and lots of paperwork. Throughout this confusing multi-step process, your advisor can assist with everything you need.

When you're working with an experienced lawyer who has already been working in student defense for several years, covering everything from academic misconduct through civil rights lawsuits and 1983 claims, you can breathe a sigh of relief. That lawyer will already know how to work with your school, with the local clerk's office, and may be able to take care of certain steps for you.

Working with a smart, seasoned legal team is the best thing you can do to be sure you did everything in your power to protect your child's First Amendment rights at school.

Joseph D. Lento is Ready to Help You Work Towards a Favorable Outcome

When you're considering litigating against your school, you're taking on a lot of work - and, potentially, a lot of confusing procedures, processes, and paperwork. You need someone with considerable skill and success in this arena to guide you through what lays ahead. Joseph D. Lento and the Lento Law Firm are ready to help you with the First Amendment issues that your student faces. No matter what you need assistance with, Joseph D. Lento will help you work towards the justice you need.

The Lento Law Firm has helped students and families and also others in academia across the United States, taking matters to court in all jurisdictions across the nation in federal and state court as needed. Even when all may seemed lost at the college or university level, the Lento Law Firm has also successfully resolved issues through efforts on clients' behalf at the school level before pursuing litigation. Contact attorney Joseph D. Lento and the Lento Law Firm at (888) 535-3686 today for help.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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