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FREEDOM OF SPEECH AND EXPRESSION IN PUBLIC SCHOOLS

A. Student free speech is a U.S. Constitutional right that should be taught and modeled in public schools:

In general, students attending public schools are free to communicate their views and discuss religious and political differences.

Public schools need to teach students about the value and right of free speech…even if such speech is perceived to be offensive and/or hateful speech.

Dissenting and unpopular voices benefit society because they expose falsity and weaknesses of (or reinforce the truth strengths of) popular ideas, “politically correctness”, and government policies.  “Iron sharpens iron.” 

The "marketplace of ideas" belief holds that the truth (or the best ideas) will emerge out of the competition of ideas in free, transparent public discourse. 

Freedom of speech is as an indispensable tool in a democracy.  It informs the people.  It helps to mold majority decisions.  It can restrain leaders’ bad actions.  It allows people to express ideas different from the majority in a peaceful manner without fear of punishment.

B. Speech may offensive: Speech that offends or angers some persons is not a legal justification for banning or limiting such speech.

In Terminiello v. Chicago, 337 U.S. 1 (1949), the Supreme Court noted that:

 

"A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment . . . . There is no room under our Constitution for a more restrictive view."  Id. at 4-5 (emphasis added).

 

"The fact that society may find speech offensive is not a sufficient reason for suppressing it.  Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection."  Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105 (1991).

C. Government may not silence but may criticize another’s speech.

Generally, you can’t force the government to silence another’s speech.  But, the government can normally elect to criticize and/or condemn the speech.

D.  Hear no evil, see no evil? The general rule is that if you don’t like what you see or hear, look the other way or leave the scene.  Alternatively, respond or challenge it.

However, students must attend classes.  Often they cannot easily avoid the offensive of hateful speech.  Nevertheless, students in a democratic republic need to learn to appropriately deal with disagreeable speech.

School officials should try to accommodate the parent and student requests of parents and students for excusal from classroom discussions or activities for religious reasons. If focused on a specific

discussion, assignment, or activity, such a request should be routinely granted, and an acceptable substitute assignment or activity can be required.
 

E. Individual Harassment versus Group-Speak:

Teachers and school officials must not silence dissenters and controversial speakers. But, they must also use their best efforts to protect other students from harassment and bullying.

Schools should act on a request by Student #1 that Student #2 cease one-on-one communications Student #1 about a specific subject.  But schools should normally respect the right of a speaker giving broader message to a larger group of students.

Prevention of harassment and bullying is important.  But such efforts must not excessively limit constitutional rights of students’ freedom of speech, expression, and religion.

School officials must strive to rightly balance student’s free speech and a safe learning environment.

 

F. Hot Button Issues (The Bully Pulpit?):

Conflicting viewpoints at times relate to highly emotional topics such as, for example, sexual orientation and abortion.  Such topics strike to the core of certain persons’ Christian or other religious beliefs or their sense morality in general.  Some claim that such expression constitutes harassment or bullying toward those holding an opposing viewpoint.  However, such speech is generally protected by the First Amendment freedom of speech, expression and/or religion.

The U.S. Supreme Court recognizes that students have the First Amendment right to express religious, social and political views in public schools, unless the school can demonstrate that the expression will or will reasonably likely cause a substantial disruption of the school’s educational  environment or violate the legal rights of others.

Public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). Students are not “confined to the expression of those sentiments that are officially approved.” Id. at 511.

 

G. Religious Expression in Public Schools:

 Generally, Christian students (and students of other religions) have a right to distribute religious literature on a public school campus.  However, reasonable time, place, and manner restrictions may be imposed by the school (Example: Time: Only at the lunch hour and before or after classes begin.  Place: Outside the school office.  Manner: From a fixed location as opposed to roving distribution). These restrictions must apply evenly to all non-school student literature.

 Note: Public schools may prohibit the distribution of some literature altogether. Some examples would be materials that are obscene, defamatory, or disruptive to the educational environment.

 Teachers and school administrators:

May not encourage or discourage student religious expression.

May not shield religious, non-religious or anti-religious beliefs from criticism by students (e.g., macro-evolution versus creationism). 

Students may display religious messages on clothing to the same extent that other messages are permitted.

Public schools may communicate in a non-coercive way views that generate controversy in the community.  But school may not promote or denigrate religion as such or in ways that discriminate on legally prohibited grounds.
 

H. Narrow tailored, Content Neutral Restrictions:

 Narrowly tailored bans on speech determined to cause, or likely to cause, substantial disruption should, absent exceptional circumstances, be viewpoint neutral (not viewpoint specific).  In other words, “What’s good for the goose must be good for the gander.”

 “Narrowly tailored” means that the law affects the smallest number of people necessary to achieve a compelling governmental interest or goal.

A “compelling” governmental interest is something necessary or crucial, as opposed to merely preferred. Examples can include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Proactive anti-harassment and bullying programs should be designed with sensitivity to a wide range of community views.
 

I. Suggestions for helping students develop free speech mindedness:

Schools should teach students that in and out of school, generally, there is a right to free speech, even of speech that one does not like or finds offensive.  

Students should be taught (in an age appropriate basis) that:

Disagreement about an idea is not necessarily a personal attack;

Some students’ religious beliefs require them to express their views publicly (For example, Jesus taught that Christians are to preach the good news of salvation to all people);

Students have the right to express disagreement with the view of other students or the school; 

On the one hand, the most effective response to an idea one disagrees with is often to express a contrary idea, not censorship;

On the other hand, expressing a message in a manner that offends the audience is often counterproductive;

In our diverse society, students will encounter people who disagree with them, and those people have a right to their own beliefs;

Students ought to communicate with others in a tactful, respectful manner.

The school should not attempt to coerce or pressure students to change the core content of a constitutionally protected message.

Schools may adopt neutral policies that require appropriate, respectful behavior.

Students are free to express disagreement with school district views in appropriate ways.

Disclaimer:

Remember, the above are general rules and guidelines.  There may be exceptions and qualifications to the above rights.  Laws frequently change.  This article was written in the year 2012. 

Don't take the school's or the school district's word for what your free speech rights are.  Do your research or contact a civil rights expert or attorney.   Disclaimer

Addendum:

UNITED STATES CONSTITUTIONAL LAW:

 "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."

First Amendment to the U.S. Constitution

CALIFORNIA LAW:

The California Constitution provides, in part:

 Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. Const. Art I, 2(a).

Article I, section 2(a) goes beyond merely reiterating the First Amendment to the United States Constitution. It “gives ‘every person’ an affirmative right to free speech.” Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal. 4th 1013, 1019 (2001).

Article I, section 2(a) extends not only to state agencies, but also to cities, counties, and all instrumentalities of state and local government, including school districts. See generally Lopez v. Tulare Joint Union High School, 34 Cal. App. 4th 1302 (1995).

STATUTORY FRAMEWORK

The California Legislature sought to further affirm the specific rights of public school students to speak freely in the educational forum by enacting Education Code 48907. Section 48907 provides in part:

Students of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not such publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

The Legislature added Education Code 48950 to further protect the rights of public high school students to engage in constitutionally protected speech or other communication. The law gives the student the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus. Education Code 48950 provides in pertinent part:

(a) School districts operating one or more high schools . . . shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.

   2012 All rights reserved.
Matthew B. Tozer Esq.