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ED 575 Students’ Rights. Students’ Rights. Government, including public schools, must have a compelling justification to curtail citizen’s expression. Balance. Students do not shed their rights at the school house steps But

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ED 575 Students’ Rights

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students rights
Students’ Rights

Government, including public schools, must have a compelling justification to curtail citizen’s expression.


Students do not shed their rights at the school house steps


Public schools are not automatically coextensive with the rights of adults in other settings


What constitutes expression?

Only when conduct is meant to communicate an idea that is likely to be understood by the intended audience is it considered expression for First Amendment purposes.

even if it is expression
Even if it is “expression”

Defamatory, obscene, inflammatory, lewd, vulgar, and expression that promotes illegal activity are not protected in the public school context.

landmark case obscene lewd or vulgar expression
Landmark CaseObscene, Lewd, or Vulgar Expression

Bethel School District no. 403 v. Fraser

A student using a sexual metaphor in a nominating speech during a student government assembly

Sensibilities of fellow students must be considered

inflammatory expression
Inflammatory Expression

Expression that agitates, threatens, or incites an immediate breach of peace from speech that conveys ideas and stimulates discussion.

Threats – things to look at:

1. Reaction of the recipient and listeners

2. Past threats

3. How it is communicated

4. Reason to believe the speaker would engage in violence

illegal drug use
Illegal Drug Use

Morse v. Frederick

Students can be disciplined for expression reasonably viewed as promoting or celebrating drug use, incitement to lawless behavior is not required.

private vs representing the school
Private vs. representing the school

Private requires substantial constitutional protection


Public – restrictions cannot be imposed

Nonpublic – compatible with the intended governmental purpose

Limited Public – student activities program

school publications
School Publications

Hazelwood School District v. Kulhmeier

Censorship must be based on legitimate pedagogical concerns

Student expression appearing to bear the school’s imprimatur can be censored

protected private expression
Protected Private Expression

Tinker v. DeMoines Independent School District

Fear of a disturbance is not enough to overcome the right to freedom of speech

More than a mere desire to avoid the discomfort that accompanies an unpopular viewpoint

It must: materially and substantially interfere with the operation of the school

prior restraints
Prior Restraints

A free speech society prefers to punish the few who abuse the rights of speech after they break the law rather than throttle them and all other beforehand.

off campus

Students cannot be disciplined for materials distributed off school grounds…


At a school sponsored event


Threatens the educational process


Confederate Flag

Discipline based on intruding on the school’s legitimate function of inculcating manners and habits of civility

Standard: Fraser


Anti-Homosexuality T-shirt

Discipline based on prevention of other students’ rights or a substantial disruption of school activities

Standard: Tinker

student initiated clubs
Student Initiated Clubs

Limited open forum for non-curricular student groups to meet during non-instructional time, access cannot be denied based on the religious, political, philosophical, or other content of the groups’ meetings

If you allow one, you must provide equal access for all


Salt Lake City – denied to all non-curricular groups. The GSA said it was a curriculum-related group.

California district – allowed non-curriculum related groups, but denied GSA and said it was a curriculum-related group, but the court said they could not limit access just because it was labeled curriculum-related.


Attire can be regulated if:




Promotes illegal behavior (gangs, drugs, etc.)

Must have a rationale for restrictions: enhancing learning or preventing disruptions

(question: is the disruption created by the student attire or the teacher’s/administrator’s reaction to the attire?)


Privilege not a Right

A hearing for students to defend their actions is always advisable when denying participation

Off-campus, off-season conduct – permissible

Random drug testing – permissible

Discipline cannot be arbitrary, discriminatory, or excessive