Do Students Have First Amendment Rights?
Several of our country's core tenets are found in the First Amendment of the Constitution. It 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 rule protects both adults and children. The law extends to any governmental rule-making organization, including public school districts.
Parents regularly hear protests from their children that the school imposes rules which are limiting their "constitutional rights," whether it be through a dress code, their artwork, articles for a school newspaper, their use of the Internet, prayer groups, reciting the Pledge of Allegiance, or other activities through which the children express themselves.
One of the first interpretations of the First Amendment as it applies to school children was a 1969 case from Iowa, in which the U.S. Supreme Court stated unequivocally that a public school must respect a student's First Amendment rights. A group of people, students and staff, organized an activity in protest of the Viet Nam conflict. The participants were going to observe a couple of days of fast, and wear black arm bands during the Christmas/New Year holiday season. The school feared that the gesture could be disruptive and cause violence, although the school had no actual threats of such an outcome. The court found that wearing the arm band was a "pure" form of speech, both personal and symbolic, and because it was a "silent, passive expression of opinion, unaccompanied by any disorder or disturbance" on the part of the protesters, the school could not prohibit anyone from wearing the arm band.
The law has developed since that time. A school can certainly impose rules to facilitate a healthy learning environment. However, whenever a school makes a rule restricting a student's First Amendment rights, the school must have a compelling reason which is related to ensuring the safety of its students. It is permissible for a school to restrict First Amendments rights only if the purpose of the restriction is to avoid material and substantial interference with school work or discipline.
The freedom of speech encompasses not only the spoken or written word, but other forms of expression through the use of symbols, fashion, silence, and art. However, the freedom does not extend to obscenity, defamation, "fighting words," or threats of violence.
Students use clothing, jewelry, hairstyle, and makeup to express their individuality. Schools are allowed to impose dress codes because not all of these forms of expression are considered "protected speech." To receive protection, the expression must be an intent to convey a message accompanied with a likelihood that the message will be understood.
Short tops, baggy pants, or excessive eye makeup don't usually convey a specific message and can be regulated. Similarly, gang-related apparel can be banned. Clothing with sexual or vulgar matters on it can be banned, as long as the school defines what is and what is not considered obscene or vulgar. A school uniform policy is permissible, as long as students can opt out of it based on sincere religious beliefs.
Students also have the opportunity to express themselves through school-sponsored performances, newspapers, and class assignments. If these opportunities are part of the school curriculum, the school can censor the students' expressions or take disciplinary action if the expression interferes with the school's educational mission, could incite violent or aggressive reactions, or could expose the students to some identifiable harm.
Generally, a school cannot prohibit speech that does not occur on school grounds or in school-sponsored activities. However, courts have upheld disciplinary actions taken by schools as a result of a student's off-campus activity which affects the safety of its students or faculty. This occurred when a Pennsylvania student posted a web page on his home computer suggesting that a teacher should die, or when an Arkansas student wrote a private statement reacting to a break-up with his girlfriend and proposed violent actions towards the girl.
The right to assemble includes attending meetings, participating in demonstrations, or in group activities. It also includes the right not to participate. It is not permissible for a school to require students to join non-class-related clubs or organizations, to require a student to pray or say the Pledge, or even to salute the flag. If a school allows one non-curricular group to use school facilities during non-class time, it should allow any group. The groups should be student-initiated and school staff cannot lead the group, participate, or regularly attend. Students can express themselves through demonstrations if they do not interfere with school activities or incite violence.
When a public school restricts First Amendment protected activities, it will have a written policy regarding the activity, the sanctions, and the opportunity for a hearing regarding the incident. As long as the overriding purpose of the restriction is to avoid material and substantial interference with school work and discipline, it is probably a permissible rule.
A decision during the first week of May 2006 in the 9th Circuit Federal Court of Appeals recently expanded the interpretation of the First Amendment. In a case originated out of California , the Court held that a school could ban a t-shirt with language against homosexuality because it contained a message that "invades the rights of others". Courts had not previously taken the First Amendment that far.
Next time your youngster complains about a rule, remind the child that even constitutional rights can be limited. Students should know that their activities should help, not hinder, the school's responsibility to provide a safe environment which fosters learning.
The information contained in this article is not intended to be legal advice or to create a contract between the reader and the author. The reader is encouraged to seek appropriate legal counsel and not to rely on the information contained herein.