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Student Speech and Expression: A Trap for the Unwary




            What can a school district do in the following “ripped from the headlines” scenarios? A high school student comes to school wearing a t-shirt with “Nobody knows I’m a lesbian” printed on it. A student wears clothing or drives a car to school emblazoned with the Confederate battle flag. A student writes an article for the school newspaper discussing a proposed state law that would legalize medical marijuana. Several students wear breast cancer awareness bracelets bearing the caption “I Boobies” to school.


            The answers are, “It depends.” The mission of schools is to educate children, and in order to foster an environment conductive to learning, schools must maintain order and discipline. At the same time, students have a right to speak and express themselves freely. As the United States Supreme Court noted in the 1969 landmark case of Tinker v. Des Moines Independent Community School District, students do not “shed their constitutional rights to freedom of speech or expression at the school house gate.” Public schools often must balance these two potentially conflicting concepts: (1) the need for a safe and orderly learning environment and (2) students’ constitutional rights to freedom of expression of their views. Determining where to draw the line between these two important interests can be difficult.


The Supreme Court in Tinker held that public schools may regulate a student’s speech or expressive activity if they can demonstrate that it would create a “substantial disruption” of school activities or invade the rights of others. Schools may not restrict a student’s right to freedom of expression simply because the student’s viewpoint is unpopular or may cause discomfort or unpleasantness. Public schools also may not pick and choose the speech it will permit. Nevertheless, free speech cannot be allowed to trump the main mission of education. Therefore, a public school may block or punish student speech or expression in order to maintain a safe and orderly learning environment.

The Supreme Court has also defined some specific situations in which public schools may act to restrict student expression without showing a material or substantial disruption to school activities. It held in Bethel School District v. Fraser that there is no First Amendment protection for vulgar, lewd, or “patently offensive” speech at school. Subsequently, it held in Hazelwood School District v. Kuhlmeier that a public school could edit and censor articles in a school-sponsored publication if such restrictions served a legitimate educational purpose. Finally, it held in Morse v. Frederick that a school could discipline a student for a banner promoting illegal drug use.

The determination of whether a school may restrict or punish student expression is heavily dependent on the facts and circumstances surrounding the student speech in question. Small details may make the difference between an allowable restriction on student speech and an unconstitutional infringement on a student’s freedom of expression.

What happened in the scenarios described in the opening paragraph of this article? The lesbian t-shirt: The school suspended the student who wore the “Nobody knows I’m a lesbian” t-shirt when she refused to change it, on the grounds that it violated the school dress code which prohibits clothing deemed distracting and disruptive. The school’s actions were criticized in the media as unconstitutional because it had no evidence of an actual or likely “material disruption” at the school. The school ultimately reversed the disciplinary decision to suspend the student because the administration realized that while the shirt was offensive and distracting to some adults, the students paid it little attention.

The Confederate battle flag: Some schools have enacted dress codes prohibiting students from attire that reflects adversely on people because of race, gender, or other factors, and some have policies banning vehicles with derogatory messages or racial symbols, specifically including the Confederate flag, from the parking lot. If the schools have proof of current and historical racial tension or unrest in the community that creates a reasonable expectation of substantial disruption in the schools if the Confederate flag is displayed, courts have generally found that such bans on student expression are allowed under the Tinker substantial disruption test. The stronger school policies on student displays of racial symbols are viewpoint-neutral, meaning that they apply to all racially charged symbols, not just the Confederate battle flag.

            School newspaper articles about controversial subjects: If a school sponsors a student newspaper for educational purposes and does not open it to unrestricted use by students, the school may require students to submit their articles for review by the school prior to publication because it is deemed school-sponsored speech. A Florida school rejected an article about proposed medical marijuana laws because it “did not fit into what we do” in being “a mouthpiece” for the school. The school’s legal counsel, however, advised the school to allow the article to be published if it met reasonable editorial and pedagogical standards and if the paper is an appropriate forum for controversial political topics. The deciding question in such a situation may turn on whether the paper is produced for class credit or is instead an extracurricular, after-school activity in which students have been given final authority over content decisions or even an independent newspaper.

The “I  Boobies” bracelets: Federal courts have come to differing conclusions on whether schools can ban breast cancer awareness bracelets bearing the slogan “I  Boobies” on the grounds that the slogan is profane, obscene, and lewd. If a school’s decision to allow or ban such bracelets is based on legitimate considerations of the age and maturity of the students and community standards, courts generally will not intervene but will defer to the school’s decision.

Determining where the balance lies between maintaining order while not infringing on students’ free speech rights at school can be difficult. The analysis is more complicated if the student speech occurs off-campus, a wrinkle which is not addressed in this article. If your District needs assistance in analyzing its options when faced with such issues, please feel free to contact us.