First Amendment Rights in Public and Private Schools

Writer: Amanda Peterson

Editor: Emma Gsohin

Spring 2022

Introduction

Students maintain their First Amendment rights when they walk on campus; however, these rights can be affected when under the rules of an educational institution. These rights have limits and vary based on whether the school is public or private. This article will address the role of the First Amendment's freedom of speech clause in public and private schools. The question of freedom of speech rights is relevant because it extends to highly contentious topics, such as hate speech. Public schools have accumulated several landmark court cases that specify what is and is not allowed on the grounds. For example, Tinker V. Des Moines Independent Community School District (1968) is one of the most famous cases regarding freedom of speech in public schools. In this case, two public school students, Mary Beth Tinker and Christopher Eckhardt wore black armbands in protest of the Vietnam war to school. However, they were sent home due to their "radical" actions. In the monumental case, the actions of the school were determined to be unconstitutional and in violation of the First Amendment (1).

Despite the Tinker outcome, First Amendment rights in public schools are still limited. A 2007 Supreme Court case, Morse v. Frederick, demonstrates the limited rights of students on their school campuses. In this case, student Joseph Frederick held a banner with "Bong Hits 4 Jesus" written on it. The phrase referenced marijuana usage, which was illegal recreationally at the time. This incident occurred at a school-supervised event, and Frederick was suspended because the banner violated the school's policy against promoting illicit drug use. The Supreme Court ruled in favor of the school because "although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use"(2). This case proves that a student's freedom of speech rights are altered once they enter school grounds.

Lastly, a more recent Supreme Court case, Mahanoy Area School District v. B.L. (2021), once again questioned First Amendment rights on public school grounds. In this case, B.L., a student cheerleader, lashed out after only making her school's junior varsity cheer team. The student posted a Snapchat with a vulgar caption: "F*** school f*** softball f*** cheer f*** everything"(3). Following this event, the student was suspended from the team for a year due to inappropriate behavior. The Supreme Court decided that the First Amendment can limit off-campus student speech; however, this speech is protected because it involves the responsibility of her parents, not the school. Therefore, if B.L. did not cause substantial harm or pose a threat to others, the school does not have jurisdiction over her off-campus speech. Students in public schools preserve their First Amendment rights when they step on a public school's campus; however, there are still legal limitations on their freedom of speech rights.

In contrast, private schools do not have landmark freedom of speech cases like public schools. Since private institutions do not abide by the same constitutional guidelines as public institutions, "the First Amendment does not protect students at private schools."(4) Public schools are legally defined as state actors, but private schools are not subject to the same constitutional review of policies. Therefore, determining whether a student's actions are appropriate at a private school is typically decided by the private institution, not the government.

I. Which Application of the First Amendment is Better?

A. Public Schools

Public schools' application of the First Amendment is more liberating than the alternative because it is the only option that guarantees the protection of these rights. However, as stated in Tinker V. Des Moines Independent Community School District, there are limitations: "the Court held that schools may also regulate speech that 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others'." In addition, schools can restrict language that is considered "incident, vulgar, or lewd," promotes illicit drug use, or can be reasonably declared as "bear[ing] the imprimatur of the school"(5). Therefore, public schools can limit First Amendment rights to an extent if deemed constitutional. Despite this, students at public schools have an additional advantage because they can take the issue up with the judicial system if they feel they have been wronged. In private schools, this is different.

While First Amendment rights for students are majorly protected, the issue can become challenging regarding hate speech. For example, Saxe v. State College Area School District (2001) regards an anti-harassment policy put in place in an attempt to limit hate speech which aims towards creating a hostile and unsafe environment. Prohibited comments include sexual harassment, harassment based on race or religion, and disability harassment. A Pennsylvania State Board of Education member, David Saxe, claimed that the State College Area School District policy violated his First Amendment rights. As a Christian, he felt homosexuality was a sin and believed he should be able to speak out against it. However, the Supreme Court decided that "harassment has never been considered to be protected activity under the First Amendment"(6). While harassment can be challenging to define, this case demonstrates that public schools do not consider hate speech wholly protected under the freedom of speech clause of the First Amendment.

B. Private Schools

While it may seem appealing to be less accountable to the Constitution, this lack of protection of students' free speech allows private schools to inhibit their First Amendment rights. As seen in Morse v. Frederick, public institutions have the authority to restrain freedom of speech rights; however, a student at a private school would not have had the chance to take this case to the Supreme Court. According to Lois Schwartz, a senior lecturer in law at Hastings College of the Law, "Enrolling in a private school entails signing a contract which requires waiving some of the First Amendment rights to free expression"(7). These contracts are typically in the form of handbooks or mission statements. Even if private schools receive federal funding, they still need to be held to the same constitutional standards as public schools (8). If private school students want to defend themselves against violating First Amendment rights, they must search for a "Students Rights and Responsibilities" section, for example, in the student handbook or contract (9). However, the issue with this solution is that it is not guaranteed. Unlike the public school's use of the Constitution, there is no promise that there will be protections for students' freedom of speech.

The First Amendment lacks information about regulating hate speech. Therefore, dealing with offensive speech is up to the officials' jurisdiction in private schools (10). Luckily, a moral code tends to stand concerning offensive speech; however, there is not the same accountability as in public institutions. In addition to morality, since private school students are contractually bound through student covenants, private institutions tend to take on a "standard of reasonable expectation." This means that the officials overlooking the case will consider how a reasonable person would interpret the handbook and use this to decide whether something can be deemed hate speech (11).

Conclusion

Ultimately, public schools provide the most inclusive protection of freedom of speech. Public schools include constraints on freedom of speech rights; however, they are still held accountable by the Constitution. Private schools, on the other hand, have no checks and balances system unless previously stated in their guidelines. In terms of hate speech, public schools also provide more protection in comparison. Because both choices have limitations, public schools' application of First Amendment rights is preferable in terms of increased freedom because they follow the Constitution's legal rights to freedom of speech.

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References

1. "Tinker v. Des Moines Independent Community School District." Oyez. Accessed February 9, 2022. https://www.oyez.org/cases/1968/21.

2. "Morse v. Frederick." Oyez. Accessed February 9, 2022. https://www.oyez.org/cases/2006/06-278.

3. "Mahanoy Area School District v. B.L." Oyez. Accessed February 9, 2022. https://www.oyez.org/cases/2020/20-255.

4. “What Rights to Freedom of Expression Do Students Have?” Freedom Forum Institute. Accessed February 7, 2022. https://www.freedomforuminstitute.org/about/faq/what-rights-to-freedom-of-expression-do-students-have/#:~:text=The%20U.S.%20Supreme%20Court%20has,expression%20at%20the%20schoolhouse%20gate.%E2%80%9D&text=Therefore%2C%20the%20First%20Amendent%20does,for%20students%20at%20private%20schools

5. "Mahanoy Area School District v. B.L." Oyez. Accessed February 9, 2022. https://www.oyez.org/cases/2020/20-255.

6. “Saxe v. State College Area School District.” FindLaw. Accessed February 10, 2022. https://caselaw.findlaw.com/us-3rd-circuit/1453965.html

7. Ainsle, Madeleine. “Students have First Amendment rights whether they attend private or public schools – and with these rights come responsibilities.” The Broadview, April 8, 2014, https://broadview.sacredsf.org/7088/features/got-rights-use-them/

8. “First Amendment on Private Campuses.” Harvard Civil Rights - Civil Liberties Law Review. Dec 1, 2015. Accessed February 8, 2022. https://harvardcrcl.org/firstamendment-on-private-campuses/

9. Hiestand, Mike. “Ask SPLC: What can private school students do when they’re censored?” Student Press Law Center, April 11, 2019, https://splc.org/2019/04/ask-splc-what-can-private-school-students-do-when-theyre-censored/

10. “First Amendment on Private Campuses.” Harvard Civil Rights - Civil Liberties Law Review. Dec 1, 2015. Accessed February 8, 2022. https://harvardcrcl.org/first-amendment-on-private-campuses/

11. O’Meara-Costello, Ruth. “Freedom of Speech and Campus Discipline: What Rights do Students at Private Schools Have?” Zalkind, Duncan, and Bernstein, March 16, 2021, https://www.bostonlawyerblog.com/freedom-of-speech-and-campus-discipline-what-rights-do-students-at-private-sc hools-have/