Expert Advice When You Need It Most

Public Schools First Amendment Guide

Written by: Richard D Ackerman

Reputation Level 9

Posted about 2 years ago. 0 helpful votes, 0 comments

Save

Share with:

Do Students Have a Fundamental Right to Speak on Campus?

According to Tinker v. De Moines Independent School District (1969) 393 U.S.503, 506, students do have a fundamental right of free expression, even on school campuses. However, this right is generally tethered by safety concerns, hate speech prohibitions, and any speech that might be deemed disruptive to the classroom/school environment. However, a mere speculative interest in any of the above concerns is not a ground for silencing student speech altogether.

What is Considered Disruptive Behavior for Purposes of Limiting Free Speech?

Generally speaking, blocking hallways or other passages, yelling during class time, uttering false facts about another person, inciting a riot, engaging in directed hate speech at another student, threats of physical harm to another, and similar conduct, will limit the boundaries of free speech. However, praying, meditating, peaceful proselytizing, handing out Bible tracts, handing out invitations for associational events, discussion of controversial topics, distribution of material relating to political issues, and the like are not prohibited. In the view of this author, nor should all of these subject areas be prohibited. Factors used in determining the extent of speech include, age, content, place, manner, time, and other considerations designed to protect children while at school. For example, free speech could not be used as a defense against cussing at school.

Is Religious Speech Protected on Public School Campuses?

Students are free to express their religious views. This includes attempting to persuade another on one's religious viewpoint. See, Thomas v. Collins (1945) 323 U.S. 516, 537. This same principle is statutorily established by the Equal Access Act (20 U.S.C. §§ 4071-74).

Can Students Have Prayer Groups and Bibles on Campus?

Students are absolutely allowed to have student-led Bible study groups, Christian clubs, prayer groups, and other similar associational activities. See, 20 U.S.C. §§ 4071-74. Equally, this also means that students can also have gay-straight alliance clubs, other religious clubs, and other associational activities. These activities are restricted only to the extent that they are nondisruptive, student-led, voluntary, and treated in the same way as any other clubs. If a school chooses to ban all clubs, equally, then there is no per se' right to establish a club of any kind. Once the door has been opened, for any student club, then there is a presumed right to establish another club.

Are First Amendment Rights Protected Across the Nation?

The First Amendment rights of students have been specifically recognized by the United States Department of Education. More information on these guidelines can be found at http://www.ed.gov/Speeches/08-1995/religion.html . This valuable link can also provide you with lots of other information for teachers, administrators, students and parents.

What Should I Do if My Child's Rights Have Been Violated?

As with any lawsuit, one must adequately document any incidents alleged to be illegal. Should you come across what you believe to be a violation of the First Amendment, you should note the date of the incident, the time of the incident, who was involved, how the incident came to somebody's attention, the action taken against the student (if any), why the violation took place, and any other related facts which would assist a judge or jury in making a determination about whether a right was actually violated. You should also immediately contact an attorney familiar with these kinds of issues. Most of the time, false perceptions about First Amendment rights can be fixed with a simple letter or conference about what happened. Where the school district remains recalcitrant about rights, a lawsuit may be appropriate and justified. The First Amendment is an important right that can't be ignored. Ignorance of rights often leads to the faulty assumption that the rights do not exist.

Where Do I Find a First Amendment Attorney?

Please check out the links following this Legal Guide. A variety of legal organizations and public interest groups are identified. The author has provided a diverse group of such resources in terms of political ideology and social goals. These cases are generally very contentious once they go to litigation and it is often important to have an attorney or firm that is guided by firm principle in defending your rights. Also, many of these organizations will provide pro bono legal assistance based on the merit of your case or the public interest in protecting the rights invoked by your case. Don't be afraid to protect the First Amendment rights of your child/student. The preservation of the First Amendment is critical to the success and development of future generations of thinkers, citizens, and the process of education as a whole. When you do nothing, the other 'side' wins by default.