The U.S. Constitution’s First Amendment 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.”

How does “freedom of speech” apply to students in K-12 public education? Or at public colleges and universities? How about private K-12 schools and private colleges and universities?

The U.S. Supreme Court first addressed the limits of free speech in public schools in the seminal case of Tinker v. Des Moines, a decision issued February 24, 1969. At a public school in Des Moines, Iowa, students planned to wear black armbands at school as a silent protest against the Vietnam War. When the principal became aware of the plan, he warned students that they would be suspended if they wore the armbands to school because the protest might cause a disruption in the learning environment. Despite the warning, some students wore the armbands and were suspended.

During their suspension, the students’ parents sued the school for violating their children’s right to free speech. The U.S. District Court for the Southern District of Iowa sided with the school’s position, ruling that wearing the armbands could disrupt learning. The students appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit but lost and took the case to the Supreme Court of the United States.

In a 7-2 decision, the Supreme Court’s majority ruled that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court took the position that school officials could not prohibit what was considered protected “speech” only on the suspicion that the speech might disrupt the learning environment.

In 1988, the U.S. Supreme Court limited student free speech in Hazelwood School District v. Kuhlmeier by ruling that schools may restrict what is published in student newspapers if the papers have not been established as public forums. This Missouri high school case resulted in an opinion by Justice Byron White that public schools “are not automatically coextensive with the rights of adults in other settings.” Those rights, he argued, must be “applied in light of the special circumstances of the school environment, and schools do not need to tolerate student speech that is inconsistent with their ‘basic educational mission.’

Later, in 2007, the U.S. Supreme Court ruled in Morse v. Frederick that the First Amendment did not protect student speech that could be “reasonably viewed as promoting drug use.” Lastly, in 2021, the U.S. Supreme Court, in Mahoney Area School District v. B.L. ruled in favor of a student upholding her right to off-campus freedom of speech on Snapchat. For a discussion of that case, please see our article: THE REGULATION OF OFF-CAMPUS PUBLIC SCHOOL STUDENT SPEECH.

Here in our area of Kansas City, a local school district expelled one student and gave 180 day suspensions to three other students for their participation in a “ Bring Back Slavery” petition that was posted online. The students argued in a request for injunction to block their expulsion and suspensions, that they were exercising their First Amendment right to freedom of speech, as well as arguing that their petition was a form of humor and not to be taken literally. The U.S. District Court for the Western District of Missouri denied the injunction request. However, their suit for damages remains pending.

All of these cases are in the public school context as the First Amendment limits only acts of the government, whether that be federal, state or local. Students in private K-12 schools have no First Amendment rights. This general distinction applies equally to institutions of higher education.

If you have a freedom of speech issue for which you seek advice please contact either Clifford Cohen (cac@studentrightslawyers.com) or Andrew Duncan(ad@studentrightslawyers.com)