So What Rights Does a Student Shed at the Schoolhouse Gate?
Understanding Students’ Rights to Speech and Information under the First Amendment
by Catherine E. Ferri*, Guest Blogger^
Understanding a K-12 student’s rights has always been complicated. The Supreme Court famously wrote in 1969 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”1 In that landmark case, Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court ruled that a public school could not prevent middle and high school students from wearing black armbands to protest the United States’ involvement in the Vietnam War. 2 The Court held that while schools retain the right to “comprehensive authority. . . consistent with fundamental constitutional safeguards. . . to prescribe and control conduct in the schools,” the school must act in a manner that is constitutional.3 The school cannot restrict speech simply because it does not like what is being said. Rather, a school may only restrict speech if the speech:
- Has caused a material or substantial disruption to the school;
- Could be reasonably forecast to cause a material or substantial disruption; or
- Impinges on the rights of others.
The Court has since continued to hone in on students’ right to free speech. In a number of cases, the Court has ruled that the school retains the right to control student speech at an off-campus but school-approved activity4, in the school newspaper5, or in school assemblies6. The rise of technology and social media platforms has complicated what constitutes “on campus” speech, but student speech posted on social media about school activities outside of school hours that does not cause any substantial disruption generally falls outside the school’s purview. 7
Thus, students do have some right to free speech on campus,8 to privacy,9 and to some form of due process.10 However, complicating a student’s constitutional rights is the fact that the school has been entrusted to care for the students while they are on campus. Thus, while students retain some constitutional rights on campus, the Supreme Court has routinely held that the public school’s interest in maintaining the safety of its students and the smooth running of the school as a whole can outweigh a student’s constitutional rights.11 A concept known as “educational discretion,” a school retains the right to decide how to educate its students, which may include decisions about what students are allowed to say during school events or on school campus, and to control what students read, or to search students’ personal belongings.
As such, when considering a student’s challenge to a school’s allegedly unconstitutional decision, the reviewing court has to closely examine when a school’s decision to restrict the student’s constitutional right furthers the safe running of a public school, or if that act, even if taken in the interest of educational discretion, still was so egregious as to violate the student’s right at issue.
While the Supreme Court has offered a number of interpretations of the public school student’s right to speech, the Court has offered only one interpretation of a student’s right to read. The right to information (and thus to read) is an “inherent corollary” of the First Amendment rights to speech and freedom of the press.12 Without the right to receive information, there would be no point in the right to offer information.
However, the Supreme Court’s interpretation of the public school student’s right to read is anything but clear. In Board. of Education., Island Trees Union Free School District. No. 26 v. Pico, the Supreme Court contemplated whether a school board’s decision to remove a number of library books from school libraries violated students’ First Amendment rights.13 The key part of the Pico holds that schools cannot remove library books because they dislike the ideas or to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”14 This means that hypothetical book bans motivated by racial animus, to prevent access to certain political viewpoints, or to force students to conform to a certain religion would likely violate the student’s First Amendment right to information under the Pico test.15 On the other hand, a school removing a book because it is “pervasively vulgar” or because it was ‘educationally unsuitable’ would likely survive a First Amendment challenge. 16 Students retain the right to some information, as the Supreme Court’s Tinker and Pico decisions remind us, but they only retain that right if the information is educationally suitable.
While the general principles of the decision may make sense, there are basically two major problems with the Pico decision and its results:
- First, the ultimate decision in Pico was what is known as a plurality. This means that while five justices made up the majority to conclude that the school board had not violated the First Amendment, the five justices differed in their reasoning, including as to the unclear test regarding educational suitability. Three justices established the test for educational suitability, with one justice concurring in part, and another concurring in the judgement only. This means that lower courts interpreting Pico struggle with its precedential value. Because it is not clear what the rule is when a decision results in a plurality, it becomes much harder for lower courts to interpret the Pico rule and apply the Supreme Court’s standard faithfully.
- Second, and relatedly, the Supreme Court has not addressed book bans or the public school student’s right to read since Pico, meaning that the only technically binding case surrounding book bans is from the 1980’s. Pico offers no guidance on the banning of e-books, how to handle modern day animus, or any more clearly binding rule on handling individual book bans.17 As such, district and circuit courts have been somewhat inconsistent in their interpretations of book bans, leaving other courts, state officials, and students guessing as to what is and is not protected by the First Amendment.
Thus, the student’s right to read remains particularly murky, particularly as technology only further complicates the right to information, and book bans become more and more commonplace in a continually fracturing political climate.
*Catherine Ferri is a third-year law student at the University of Colorado Law School and a 2020 graduate of Colgate University, where she studied English and Spanish literature. Her work on combating e-book bans has been published by the Stanford Technology Law Review.
^The information provided in this post does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available here are for general informational purposes only. Information on this post may not constitute the most up-to-date legal or other information. Readers of this post should contact an attorney to obtain advice with respect to any particular legal matter
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731, 49 O.O.2d 222 (1969).
↩︎ - Id. at 504. ↩︎
- Id. at 507. ↩︎
- Morse v. Frederick, 551 U.S. 393 (2007)(School officials who punished several students for unfurling a “BONG HiTS 4 JESUS” banner at a school-sponsored parade did not violate the First Amendment). ↩︎
- Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)(School officials retained the right to impose reasonable restrictions on a high school newspaper, particularly where it unfairly impinged on other students’ right to privacy).
↩︎ - Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)(School officials retained the right to punish student who spoke in a lewd or vulgar manner during a nomination speech).
↩︎ - Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S. Ct. 2038 (2021)(School did not have the right to punish a student who spoke in a vulgar manner regarding the school’s cheerleading team because it did not disrupt school operations and was not posted on school technology, on campus, or during school hours).
↩︎ - Id. ↩︎
- New Jersey v. T.L.O., 469 U.S. 325 (1985). ↩︎
- Goss v. Lopez, 419 U.S. 565 (1975). ↩︎
- Tinker, 393 U.S. at 507, TLO, 469 U.S. at 324, Morse, 551 U.S. at 393. ↩︎
- 457 U.S. 853, 867 (1982. ↩︎
- Id. at 856. ↩︎
- Id. at 872. ↩︎
- Id. at 870–71. ↩︎
- Id. ↩︎
- For a longer discussion about Pico’s inability to address widescale book bans like e-book bans, see Catherine E. Ferri, Note, Book Banning Goes Digital: Libraries Suspending Their E-Book Services and the Complications It Poses for First Amendment Doctrine, 27 Stan. Tech. L. Rev. 127 (2024). ↩︎
Filed under: News
About John Chrastka
EveryLibrary’s founder is John Chrastka, a long-time library trustee, supporter, and advocate. John is a former partner in AssociaDirect, a Chicago-based consultancy focused on supporting associations in membership recruitment, conference, and governance activities. He is a former president and member of the Board of Trustees for the Berwyn (IL) Public Library (2006 – 2015) and is a former president of the Reaching Across Illinois Libraries System (RAILS) multi-type library system. He is co-author of “Before the Ballot; Building Support for Library Funding.” and “Winning Elections and Influencing Politicians for Library Funding”. Prior to his work at AssociaDirect, he was Director for Membership Development at the American Library Association (ALA) and a co-founder of the Ed Tech startup ClassMap. He was named a 2014 Mover & Shaker by Library Journal and tweets @mrchrastka.
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Kristen Rademacher says
Fabulous information. Thank you for writing this article.