What is freedom of expression?

Freedom of expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas and emotions about different issues free from government censorship. The First Amendment of the U.S. Constitution protects the rights of individuals to freedom of religion, speech, press, petition and assembly. Some scholars group several of those freedoms under the general term “freedom of expression.”

Most state constitutions also contain provisions guaranteeing freedom of expression, and some provide even greater protection than the First Amendment.

Freedom of expression is essential to individual liberty and contributes to what the Supreme Court has called the marketplace of ideas. The First Amendment assumes that the speaker, not the government, should decide the value of speech.

  What rights to freedom of expression do students have?

Public school students possess a range of free-expression rights under the First Amendment. Students can speak, write articles, assemble to form groups and even petition school officials on issues. The U.S. Supreme Court has said that students "do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate."

There is a fundamental distinction between public and private school students under the First Amendment. The First Amendment and the other provisions of the Bill of Rights limit the government from infringing on an individual's rights. Public school officials act as part of the government and are called state actors. As such, they must act according to the principles in the Bill of Rights. Private schools, however, aren’t arms of the government. Therefore, the First Amendment does not provide protection for students at private schools.

Though public school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression. For example, school officials may prohibit speech that substantially disrupts the school environment or that invades the rights of others. Many courts have held that school officials can restrict student speech that is lewd.

Many state constitutions contain provisions safeguarding free expression. Some state Supreme Courts have interpreted their constitutions to provide greater protection than the federal Constitution. In addition, a few states have adopted laws providing greater protection for freedom of speech.

  What has the Supreme Court said about free expression?

The U.S. Supreme Court has decided several cases involving the First Amendment rights of public school students, but the most often cited are Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988).

In Tinker, the Supreme Court said that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The court ruled that Iowa public school officials violated the First Amendment rights of several students by suspending them for wearing black armbands to school.

The court noted that the students’ wearing of armbands to protest U.S. involvement in Vietnam was a form of symbolic speech "akin to pure speech." The school officials tried to justify their actions, saying that the armbands would disrupt the school environment.

But, the Supreme Court said that "in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." School officials cannot silence student speech simply because they dislike it or it is controversial or unpopular. Rather, according to the court, school officials must reasonably forecast that student speech will cause a "substantial disruption" or "material interference" with school activities or "invade the rights of others" before they can censor student expression. The Tinker case is considered the high-water mark for student First Amendment rights.

In the 1980s, a more conservative Supreme Court cut back on students' free-expression rights in Fraser and Hazelwood. In Fraser, school officials suspended a high school student for giving a lewd speech before the student assembly. Even though Matthew Fraser's speech was part of a student-government campaign, the high court distinguished the sexual nature of the address from the political speech in Tinker.

"Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," the court wrote in its 1986 decision. "The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior."

Two years later the Supreme Court further restricted student free-expression rights in Hazelwood. In that 1988 decision, several students sued after a Missouri high school principal censored two articles in the school newspaper. The articles, written by students dealt with divorce and teen pregnancy. The principal said he thought the subject matter was inappropriate for some of the younger students.

The students argued that the principal violated their First Amendment rights because he did not meet the Tinker standard -- he did not show the articles would lead to a substantial disruption. Instead of examining the case under Tinker, however, the Supreme Court developed a new standard for what it termed school-sponsored speech.

Under this standard, school officials can regulate school-sponsored student expression as long as the officials' actions "are reasonably related to a legitimate pedagogical interest." In plain English, this means school officials must show that they have a reasonable educational reason for their actions. The court broadly defined the school’s authority to regulate school-sponsored expression, writing that school officials could censor material which would "associate the school with anything other than neutrality on matters of political controversy."

  May public schools impose dress codes and uniforms?

Many students are able to express themselves through what they wear to school, but more and more teen-agers are facing restrictions as school boards across the country adopt more stringent policies.

Some states have passed laws empowering school boards to regulate student dress. For instance, Tennessee has a law allowing school boards to pass policies prohibiting the wearing of "gang related apparel." In 2001, Arkansas passed a law requiring school boards to create an "advisory committee" of parents and students to consider whether their local school district should require uniforms. Arizona has a law giving local school boards the power to adopt uniform policies. New Jersey passed a law saying that school boards may adopt a dress code or uniform policy if requested by the principal, staff and teachers and "if the board determines that the policy will enhance the school learning environment"

Many courts have upheld dress-code and uniform policies as a reasonable way to instill discipline and create a positive educational environment. Federal appeals courts have recently upheld uniform policies in Texas and Louisiana. The courts determined that the policies were not imposed to suppress students’ freedom of expression but to further reasonable educational objectives.

The Supreme Court has not decided a case involving a challenge to a dress-code or uniform policy.

  May a school punish a student for wearing Confederate flag attire?

The courts are divided on this question, but most will examine whether the clothing would create a substantial disruption or material interference with school activities or invade the rights of others.

Practically, the issue boils down to whether the school has had prior incidences of racial violence or tension. If school officials can point to such incidents, a court will tend to side with them in Confederate flag attire cases.

However, the Supreme Court has also said that school officials could not censor student expression based on "undifferentiated fear or apprehension." This means that school officials have some burden to justify their actions.

  Are political messages on students’ clothing protected?

Usually they are protected in dress-code cases as long as they are not conveyed in a vulgar or lewd fashion. In Tinker v. Des Moines Independent Community School Dist. (1969), the U.S. Supreme Court ruled that public school students could wear black armbands to school to protest U.S. involvement in the Vietnam. The Court noted that the students were engaging in a form of symbolic speech that was “akin to pure speech.” In later decisions, courts have recognized that students have more protection when they engage in political expression.

However, the language used to convey a political message on dress can be very important. For example, in 1992 one federal court rejected a Virginia student’s First Amendment claim that she should not be punished for wearing a “Drugs Suck” T-shirt to class. Even though the message spoke to an important political topic, the court determined that the word “sucks” was too vulgar and could be prohibited.

The issue is a bit different with respect to school-uniform policies. If a public school adopts a uniform policy, they can prohibit T-shirts with any messages, including political messages. However, the school could not constitutionally prohibit students from wearing political buttons or logos on their school uniforms.

  Can students wear clothing with profanity?

No, public school officials can prohibit students from wearing shirts with profane messages. In its 1986 decision Bethel School Dist. No. 403 v. Fraser, the U.S. Supreme Court wrote: “Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” The Court explained that “schools must teach by example the shared values of a civilized social order.”

  May a public school official legally censor a school-sponsored publication, like a newspaper or yearbook?

It depends. If the school has by policy or practice turned the school-sponsored publication into a public forum, or a place traditionally open to the free exchange of ideas, then the school has less authority to censor content. However, most school newspapers are not public forums, and because of a 1988 Supreme Court decision, school officials generally have broad leeway to censor school-sponsored publications.

In Hazelwood School District v. Kuhlmeier, the high court ruled that school officials can censor school-sponsored publications if their decision is "reasonably related to a legitimate pedagogical purpose." This means school officials must show that they have a reasonable educational reason for censoring the material.

The high court gave several examples of material that could be censored based on a reasonable educational purpose, including material that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences."

The court went so far as to say that under the Hazelwood standard, school officials could censor school-sponsored materials which would "associate the school with anything other than neutrality on matters of political controversy."

Student advocates decried the Hazelwood decision as blatant censorship that would lead to a drastic reduction in students’ First Amendment rights. For this reason, several states passed so-called "anti-Hazelwood laws" that grant student journalists more protection. Arkansas, Colorado, Iowa, Kansas and Massachusetts passed such laws after the decision. (California already had a law protecting student journalists.) Anti-Hazelwood bills have been introduced in other states, but so far no more have been adopted since the Arkansas one became law in 1995.

  May a public school legally censor an off-campus, 'underground' student publication?

Generally, schools may not censor underground student newspapers because those papers are not school-sponsored. If the underground paper is not distributed on campus, school officials have no legal authority to regulate it.

Even if the papers are distributed on school grounds, the First Amendment imposes limitations on school officials’ ability to censor these publications because of content. Public school officials, however, may impose reasonable time, place and manner restrictions on the distribution of underground newspapers.

There are exceptions to the general rule of "no censorship." If school officials can show that the publication caused or would likely cause a substantial disruption of school activities, they may be able to limit or even stop distribution. Or if school officials could show that the publication contained true threats, they may be able to restrict distribution.

A pressing issue regarding underground student newspapers is whether school officials have the power to require students to submit the papers for review before they can be distributed on school grounds. Courts are divided on whether such prior review policies violate students’ First Amendment rights, and the Supreme Court has not considered the issue.

  May administrators remove controversial books from school library shelves?

School officials cannot pull books off library shelves simply because they dislike the ideas in those books. In Board of Education v. Pico, the Supreme Court ruled that school officials in New York violated the First Amendment by removing several books from junior high school library shelves for being too controversial.

The Court said the First Amendment protects students' right to receive information and ideas and that the principal place for such information is the library.

However, in Pico, the Supreme Court also said school officials could remove books from library shelves if they were "pervasively vulgar." The Court noted that its decision did not involve school officials’ control over the curriculum or even the acquisition of books for school libraries.

  What types of books are most subject to censorship?

Many books have been subject to censorship, although most are targeted for (a) vulgar or sexually explicit language; (b) "racist" language; (c) gay and lesbian themes; and/or (d) discussions of witchcraft and the occult.

The American Library Association’s Office of Intellectual Freedom keeps track of efforts to censor books and has published a list, "The 100 Most Frequently Challenged Books of 1990-2000." Books new and old make up the list, from the 19th-century classic The Adventures of Huckleberry Finn to the critically acclaimed I Know Why the Caged Bird Sings to the current-day best-selling Harry Potter series.

Maya Angelou's I Know Why the Caged Bird Sings receives complaints for a rape scene and for being perceived by some as "anti-white." Mark Twain's Huckleberry Finn has been subject to censorship for language deemed demeaning to African-Americans. J.K. Rowling's hugely popular Harry Potter series draws the ire of some who say it celebrates witchcraft.

School districts should develop policies on how to handle challenges to books, and how to ensure that decisions regarding removal of books from the library or the curriculum respect the Constitution and reflect sound educational policy. School officials must also ensure that a book is not removed simply because a concerned parent or special-interest group dislikes its content.

  Is speech on the Internet entitled to as much protection as speech in more traditional media?

Yes, the U.S. Supreme Court ruled in Reno v. ACLU (1997) that speech on the Internet receives the highest level of First Amendment protection. The Supreme Court explained that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

  Does it matter whether a student creates his cyberspeech at school?

Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. Also, when students use school computers, they are subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.

  May schools enforce speech codes on school grounds?

Schools can prohibit students from harassing other students on school grounds. However, schools must ensure that their speech codes are narrowly drafted in order to survive a First Amendment challenge.

In 2001, a federal appeals court in Pennsylvania struck down a student anti-harassment code that prohibited “unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, threatening, bullying, extorting or the display or circulation of written material or pictures.” (See an article about this.)

The appeals court determined that the student speech code was overly broad and could include “much ‘core’ political and religious speech,” which should receive First Amendment protection.

At the college level, many speech codes have been struck down on First Amendment grounds. Kevin O’Shea, publisher of the monthly newsletter First Amendment Rights in Education, predicts that “we could very well be witnessing the initial stages of a similar phenomenon in public elementary and secondary schools.”

He adds that “it is likely that many more school districts will see their own anti-harassment policies overturned in the face of First Amendment scrutiny.”

Schools have a duty to ensure a safe learning environment free from hostility and harassment. However, schools must also ensure that they do not impose far-reaching restrictions on student speech in their efforts to eliminate harassment.

  May a public school exclude certain student clubs or groups?

No, a public school may not pick and choose which student groups it wishes to allow. A school would violate the First Amendment if it censored certain student groups on the basis of their viewpoints.

In 1984, Congress passed the Equal Access Act to prohibit discrimination against certain student groups based on their speech. The act was passed to prevent discrimination against student religious groups.

In its 1990 decision Westside Community Board of Education v. Mergens, the Supreme Court ruled that a Nebraska high school violated the Equal Access Act by denying recognition of a student Christian club when it allowed many other noncurriculum student clubs.

The Equal Access Act provides that a "public secondary school has a limited open forum whenever such school grants an offering or an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time."

The act forbids public secondary schools that receive federal funds from denying "equal access" to student groups based on the "religious, political, philosophical, or other content of the speech." This means that, as the Mergens case demonstrated, a school cannot allow the formation of a chess club and at the same time deny the formation of a Bible club.

Unfortunately, some school districts that do not wish to recognize certain student groups have taken drastic action in order to avoid violating the Equal Access Act. These districts have simply prohibited all student extracurricular groups. A school district in Utah banned all student groups to avoid recognizing a gay-and-lesbian group. Meanwhile, a school district in California banned all student groups in order to avoid recognizing a Christian group.

(For more information on student clubs, see Religious clubs FAQs in the Religious liberty in public schools section.)

  If a student creates his material at home, how can school officials possibly regulate it?

Good question. The courts are not uniform in how they analyze such cases. This question raises the threshold issue of whether the material is considered on-campus or off-campus speech. The Pennsylvania Supreme Court wrote in its 2000 ruling in J.S. v. Bethlehem Area School District: “We hold that where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech.”

It would be difficult for school officials to justify regulating material a student creates at home and does not bring to school. However, if a student creates a Web site at home using his own computer but brings the material to school, then school officials could likely regulate it under the “substantial disruption” standard from the Supreme Court’s 1969 decision Tinker v. Des Moines Independent Community School District. This means that the material would be treated akin to an underground student newspaper — school officials could regulate it if they could reasonably forecast that it would cause a substantial disruption or material interference with school activities. What is not clear is a situation where a student creates the material at home and never brings it to school, but other students bring it to school and freely distribute it. No case has explained this situation with any detail.

Students also should be aware that there are consequences to posting certain material even on their personal Web sites. If a student posts true threats online, the school may contact the appropriate authorities. If a student posts libelous material, he may be sued for defamation in court. For example, several teachers in Indiana sued a student in 1999 after he posted allegedly false information that harmed the teachers’ reputations.

  Can school officials restrict online expression because it contains offensive language?

They cannot under the Tinker standard. One federal district court judge in 1998 wrote in his opinion: “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.” At least one court has applied the Fraser standard to student Internet speech that is considered on-campus expression. Under the Supreme Court’s 1986 decision Bethel School District No. 403 v. Fraser, school officials have the authority to regulate on-campus student speech that is vulgar, lewd or plainly offensive. Most courts, so far, have stated that school officials cannot satisfy the Constitution by banning expression simply because they find it offensive.

  Are public school students required to recite the Pledge of Allegiance?

No, public school students may not be compelled to recite the Pledge of Allegiance. In its 1943 decision West Virginia Board of Education v. Barnette, the U.S. Supreme Court determined that the First Amendment protects a student’s right not to engage in certain speech. The First Amendment generally prohibits the government from punishing people for engaging in certain speech. In Barnette, the high court extended the reach of the First Amendment to also prohibit the government from compelling speech.

The high court determined that a group of Jehovah’s Witnesses, who objected to the flag salute and mandatory pledge recitation for religious reasons, could not be forced to participate.

In oft-quoted language, Justice Robert Jackson wrote: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

  May students pray or discuss religion in public schools?

Yes, students have the right to pray and discuss religion in school. Public misperception has persisted on this topic since the U.S. Supreme court struck down school-sponsored prayer in the early 1960s. In those decisions, the high court ruled that the establishment clause does prohibit schools from allowing or engaging in school-sponsored prayer or encouraging students to pray.

But the free-exercise clause protects the rights of students to pray on their own time. In fact, singling out student religious speech for punishment would indicate hostility towards religion and violate the basic First Amendment principle that the government may not punish a particular viewpoint.

This does not mean that students have an unfettered right to speak on religious subjects. Students can be punished for interrupting class time for any type of speech. Also, school officials can make sure that students are not speaking to a captive audience or harassing others by overzealously advocating their religious beliefs.

  May a student lead a prayer at graduation exercises?

It depends on the court and the context. If the student speech is deemed to be school-sponsored or endorsed by the school, the student prayer would violate the establishment clause. Some courts have determined that purely student-initiated speech would not run afoul of the establishment clause.

Two federal appeals court decisions show how the courts are divided on this issue.

In October 2000, the 9th U.S. Circuit Court of Appeals rejected a First Amendment challenge brought by students in California who were denied the right to make a religious speech at graduation. The court determined that school district officials reasonably prevented the student’s religious speech to avoid violating the establishment clause. The court determined in Cole v. Oroville Union High School that even "if the graduation ceremony was a public or limited public forum, the District’s refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause."

However, in May 2001, the 11th U.S. Circuit Court of Appeals refused to strike down a Florida school district policy allowing an elected student to deliver an unrestricted message at graduation. The court in Adler v. Duval County School Board determined that "it is impossible to say that … [the policy] on its face violates the Establishment Clause without effectively banning all religious speech at school graduations, not matter how private the message or how divorced the content of the message may be from any state review, let alone censorship."

  Do students have to stand and remove their hats during the Pledge?

No, you do not have to stand up and take off your hat during the Pledge of Allegiance. In the 1943 case West Virginia Board of Education v. Barnette, the Supreme Court said students who objected to the flag salute and mandatory pledge recitation for religious reasons could not be forced to participate.

Although Barnette pertains to reciting the pledge, in the case Lipp v. Morris (1978) the 3rd U.S. Circuit Court of Appeals struck down a New Jersey statute requiring a student to stand during the pledge as unconstitutional.

As explored in Lipp and Barnette, a fundamental constitutional right is that no government official at any level can force conduct from any citizen regarding an expression of religion, politics, nationalism, or matter of opinion.

  If I wear my hair long or dye it an unusual color, can I get in trouble at school?

Courts are much divided on this issue. Among the federal appeals courts, the 1st, 2nd, 4th, 7th and 8th circuits have seemed receptive to students’ claims of free-expression rights concerning their hair. But the 3rd, 5th, 6th, 9th and 10th circuits have seemed unreceptive.

Many cases involving student hair today deal not with length but color. For example, a high school student from Virginia sued his school district in federal court after school officials suspended him for having blue hair. A federal judge reinstated the student, finding a violation of his constitutional rights.

Generally, courts that have found a constitutional issue have ruled along similar lines, claiming that a student’s choice of hair color and style represents either a First Amendment free-expression issue or a 14th Amendment liberty or equal-protection interest. Some courts have even pointed out that regulating students’ hair has a more permanent effect than regulating their dress because outside school they can change their clothes more readily than their hairstyles or color.

Conversely, the courts that have sided with school districts have generally ruled that students’ wearing of long hair “does not rise to the dignity of a protectable constitutional issue.”

Either way, different courts have simply come to different legal conclusions. As a result, students’ rights in this regard largely depend on where they live.

  Can students be forced to stand while other students recite the Pledge?

No, two courts have held that students cannot be forced to stand while other students recite the Pledge of Allegiance. In Goetz v. Ansell (1973) and Lipp v. Morris (1978), the 2nd and 3rd U.S. Circuit Court of Appeals, respectively, ruled that public school students could not be forced to stand silently while other students recited the pledge. The 2nd Circuit in Goetz explained: “the alternative offered plaintiff of standing in silence is an act that cannot be compelled over his deeply held convictions. It can no more be required than the pledge itself.”

  Can different rules about hair length apply in extracurricular activities and the regular school day?

Yes. In most cases, participation in extracurricular activities is considered to be a privilege, not a right. As such, participants may be subject to additional or different rules than regular students. Lower courts and the U.S. Supreme Court have noted that participants in extracurricular sports, by electing to participate, subject themselves to these rules. In 1995, the Supreme Court decided a case in which it upheld drug testing for student athletes. In its opinion, the Court noted: “By choosing to ‘go out for the team,’ [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.” Vernonia Sch. Dist. 47J v. Acton, U.S. 646, 657 (1995)

One fairly recent case highlighting this issue was decided in a U.S. District Court in Missouri. In Hurt v. Boonville R-1 School District Case, No. 02-4267-CV-C-SOW (W.D. Mo. 2002), a high school student was not allowed to play in a basketball game because he wore his hair in a type of braid called cornrows. This style violated the team coach’s grooming policy. Though calling the rule “stupid and dumb,” the judge deciding the case found no violation of constitutional or statutory rights and said that “high school coaches have discretion and authority to impose additional requirements on student athletes.”

  What about the power of schools to control speech in the classroom?

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

  How do schools resolve the tension between freedom of speech and the need for discipline and control?

Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writing. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions. Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of students.