First Amendment: Speech in Schools

Free speech in the public schools is based on the First Amendment to the Constitution, according to which “Congress shall make no law . . . abridging the freedom of speech or of the press.” In 1969, the U.S. Supreme Court interpreted the First Amendment as meaning that neither students nor teachers “shed their rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School District, p. 506). However, the Court has recognized that no right is absolute. Therefore, when conflicts arise among students, teachers, administrators, and parents about free speech, judges balance the rights in conflict and determine when to protect and when to limit this freedom. This entry reviews Supreme Court decisions related to freedom of speech for students and teachers.

Student Speech

Four Supreme Court cases have addressed the scope and limits of student speech in the public schools. In its landmark decision in Tinker, the Supreme Court protected the rights of students who wore black armbands to protest against the Vietnam War. Even so, the Tinker Court acknowledged that school officials can limit student expression that “materially disrupts class work or involves substantial disorder or invasion of the rights of others” (p. 509).

In the next student speech case, Bethel School District No. 403 v. Fraser (1986), the Supreme Court ruled against a student who was punished for giving a nominating speech at a high school assembly that referred to his candidate using “an elaborate, graphic and explicit sexual metaphor” (p. 678). The Court was of the opinion that school officials have broad authority to punish students for using “offensively lewd and indecent speech” (p. 685) in classrooms, assemblies, and other school-sponsored activities—even if the speech does not cause disruption and is not legally obscene.

In 1988, the Court upheld the authority of a principal to censor two stories about pregnancy and divorce in a student newspaper that was published as part of a journalism course. In Hazelwood School District v. Kuhlmeier, the justices reasoned that educators have the authority to control school-sponsored publications and may prohibit articles that are “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences” (p. 271).

The Supreme Court’s most recent case on student free speech upheld the suspension of a student who unfurled a banner at a school event that said “BONG HiTS [sic] 4 JESUS.” In Morse v. Frederick (2007), the Court ruled that schools “may restrict student expression that they reasonably regard as promoting illegal drug use” (p. 2639). At the same time, the Court also indicated that officials may not restrict student speech simply because it is offensive or promotes the repeal of controversial laws.

These four Supreme Court cases indicate that when students speak as individuals, their speech is protected by the First Amendment and may not be restricted unless it is lewd and indecent, causes substantial disruption, or interferes with the rights of others. This freedom protects controversial political, religious, or educational ideas in writing, on T-shirts, or on home computers. In contrast, educators have broad discretion to regulate and restrict student expression in school-sponsored activities, including curricular publications, plays, and the use of school computers. Further, clothing choice is not a First Amendment right, and schools have discretion to issue strict dress codes or require uniforms.

Teacher Speech

The Supreme Court has ruled on only one case directly involving the free speech rights of public school teachers. Pickering v. Board of Education of Township High School District 205, Will County (1968) concerned a teacher in Illinois who was fired for writing a letter to a newspaper criticizing the way his superintendent and school board spent funds and the “totalitarianism teachers live in” (p. 576). The teacher argued that his letter should have been protected by his right to free speech. The Supreme Court agreed, pointing out that school officials cannot punish teachers merely because they make critical statements about matters of public concern—even if the statements were unknowingly incorrect. Instead, the Court concluded that teachers should be able to speak out freely about education and policy issues “without fear of retaliatory dismissal” (p. 572).

Subsequent judicial decisions have clarified and limited teachers’ free speech rights. Most recently, in Garcetti v. Ceballos (2006), the Supreme Court held that public employee expression is not protected if made pursuant to official job duties. Also, after the Supreme Court’s judgment in Connick v. Myers (1983), it is clear that when teachers speak, not as citizens about matters of public concern but as employees about matters of personal interest, the First Amendment will not protect them. Thus, free speech protects neither individual complaints nor private disagreements. Moreover, free speech does not protect disclosures of confidential information or unprofessional and insulting communications. Teachers usually are protected by state whistleblower statutes, though, when they report legal violations in their schools.

Academic freedom generally protects the rights of public university professors to speak out critically about their subject and to select teaching methods and materials of their choice. Yet, such freedom is limited among elementary and secondary teachers. Insofar as there is no Supreme Court decision directly on academic freedom in public schools, lower courts differ in their interpretations of the scope and limits of this freedom.

Some courts have ruled that academic freedom protects K–12 teachers in their use of controversial material if it is relevant to the subject, is appropriate to the age and maturity of the students, and does not cause disruption. Even so, school boards, not teachers, have primary control over the curriculum, and administrators may select or eliminate texts and courses.

Teachers usually may not be punished for using a controversial teaching method unless that method has been clearly prohibited. If teachers did not know a method was prohibited, it would probably be a due process violation to punish them for employing such methodologies unless the methodologies had no recognized educational purpose. On the other hand, school officials may refuse to rehire teachers who fail to cover material that they have been told to teach or who disagree with a board’s philosophy and educational approach. In addition, while many schools permit teachers to dress as they wish, schools have authority to issue strict dress and grooming policies for teachers and to punish educators who violate such policies.

In sum, with regard to teachers, courts use a different approach when judging whether to protect their out-of-class or in-class speech. In determining whether a teacher’s out-of-class speech is protected, judges first consider whether it was made pursuant to official job duties. If the expression was not related to official job duties, the courts will examine whether the speech was related to a personal grievance or a matter of public concern. If the speech is about a personal matter, it is not protected by the First Amendment. Conversely, if the speech is about a matter of public concern, courts balance the interests of the teacher as a citizen in commenting on matters of public interest against the interest of the government in promoting the efficient operation of the schools. The balance usually favors teachers whose criticism relates to violations of students’ rights, or dangers to their health or safety, or illegal practices.

Schools have broad discretion to set the curriculum and texts while requiring approval of supplementary material. Still, courts have indicated that teachers should not be disciplined for using controversial materials or methods unless they know (or should know) that the materials or methods are prohibited.

David Schimmel

See also Bethel School District No. 403 v. Fraser; Free Speech and Expression Rights of Students; Hazelwood School District v. Kuhlmeier; Morse v. Frederick; Pickering v. Board of Education of Township High School District 205, Will County; Teacher Rights; Tinker v. Des Moines Independent Community School District

Further Readings

  • Fischer, L., Schimmel, D., & Stellman, L. (2007). Teachers and the law (9th Ed.) Boston: Allyn & Bacon. 

Legal Citations

  • Bethel School District. No. 403 v. Fraser, 478 U.S. 675 (1986). 
  • Garcetti v. Ceballos, 547 U.S. 410 (2006). 
  • Connick v. Myers, 461 U.S. 138 (1983). 
  • Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). 
  • Morse v. Frederick, 127 S. Ct. 2618 (2007). 
  • Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563 (1968). 
  • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).