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Freedom of Speech in Public Education Settings – Advice from an Education Lawyer

On Behalf of | Sep 7, 2015

Freedom of Speech in Public Education Settings – Advice from an Education Lawyer

Free speech. Almost everyone knows that our Constitution protects this right. But many people truly do not understand where those protections begin and end. And even less people know what those protections are in schools.The First Amendment of the U.S. Constitution states that Congress shall make no law “abridging the freedom of speech.” This protection was made to apply to state and local governments through the passing of the Fourteenth Amendment. Freedom of speech applies to government action and public forums (although there are limitations on certain types of speech). Private entities and organizations, however, are largely not required to protect your speech. So generally speaking, you do not have freedom of speech rights at a private company, a private club, or at private schools. As for public schools, the United States Supreme Court has distinguished two different types of student expression – individual student expression and public school sponsored student expression.

Individual Student Expression

This is speech that is not sponsored, controlled, or reasonably perceived as attributable to the school. Meaning this is not speech that appears in school newspaper articles, school assemblies, and so forth. In a case entitled Tinker v. Des Moines Independent School District, the Supreme Court created a test. A school must show through evidence that student expression would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Minor disruptions, discomforts and unpleasantness are not enough to limit speech.

School Sponsored Expression

This is speech that is sponsored, controlled or reasonably perceived as attributable to the school. This type of speech would be the school newspaper, assemblies, performances, rallies, etc. Two Supreme Court cases control school sponsored expression. These are the cases of Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier. Essentially, school officials have broad discretion to control content where the expression is sponsored by the school. Limitations on this type of speech can be based on any legitimate and logical educational basis.

So, Were My Free Speech Rights Violated?

As you can probably guess, whether or not your speech in public educational institutions is protected is very fact specific. When in doubt, review your school’s student handbook and policies regarding speech and expression. But always be respectful of other students beliefs. Just because you might be able to say something doesn’t mean you always should.Richard Asselta is a Florida education lawyer and the founder of Asselta Law, PA. Asselta Law, located in Broward County, Florida. Asselta Law concentrates on Education and School Law and Appeals. Mr. Asselta is a former attorney for a large public school district. He draws upon the knowledge gained from the other side of the table to work with teachers and students on legal issues in a variety of educational settings throughout the state of Florida. Contact us today for a free consultation. Credit cards accepted. Affordable payment plans available.