Freedom of Speech in Schools

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When I was growing up, my teachers taught me the Bill of Rights as if it was black and white. You had a certain amount of rights and they could never, ever be violated by anyone. However, there is actually more gray area than that. It is certainly not true that you forfeit all of your rights when you walk into to school (as a student or teacher), but instead there is a bit of ambiguity. Depending on the manner of speech, the time and place you present it in, and your position in the school, your rights may or may not be protected. While it would be inaccurate to post a warning sign outside of the school door informing all who enter that they will leave their rights behind, it may be more accurate to post one stating, “Proceed with Caution!”

Beyond the school context, not all speech is protected. Speech that has a high societal/individual interest and low state interest (such as political speeches) has the most amount of protection. Speech with low societal/individual interest and high state interest (obscenity, defamation, fighting words, etc.) has the least amount of protection. The state can also impose time, place, and manner restrictions on speech (for instance, limiting the volume of a speech). In general, you don’t have the right to say whatever you want, whenever you want. However, the government has to have a legitimate interest in what you’re saying or how you’re saying it in order to restrict you.

Along with these general limitations on restricting speech, school is a “special” environment (according to Fraser) and therefore can have special considerations when it comes to constitutional protections. First, it is not a public space, but more of a non-public space because generally it is not open to the public. On certain occasions it can be considered a designated public space (for instance, if the auditorium was open for the public to perform in) and would have slightly more protection, but usually it is not afforded the same protections as a public forum. Second, regardless of whether or not a school is a public space, there are certain restrictions a school must put on its students’ and teachers’ speech because of its “need to maintain order and execute its mission.” For instance, in New Jersey v. T.L.O, the courts decided that prohibiting schools from regulating pro-drug speech would interfere with their “important – indeed, perhaps compelling” interest in teaching the dangers of drug abuse. Without being able to restrict certain speech, a school would not be able to fulfill its prescribed duties. Once we’ve established that school is a “special” environment (and does not automatically provide the same protections as the general public), it is clear that students and teachers should be considered differently in the context of their rights in school. Students are forced to be there, so it is not acceptable to force them into a situation and then strip them completely of their rights. Teachers, on the other hand, voluntarily sign up to be in school, so it is more acceptable to make it a condition of the job that some of their rights would not be protected. Also, teachers (but not students) are acting as an arm of the state. This designation carries a certain amount of responsibilities and expectations that trump the rights they would have if they were truly private citizens. This is similar to how public citizens have less protection against defamation than private citizens do. In determining whether student speech can be restricted, courts generally refer to two main cases. First, in Tinker vs. Des Moines Independent School District, the courts limited a school’s ability to restrict or censor student speech. When a school made a specific dress code policy prohibiting students from wearing black armbands to protest the Vietnam War, the court decided that this was a content-specific restriction and therefore was not allowed. Censoring a specific message simply because a school doesn’t agree with it is a...
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