Three students holding signs reading "Free Speech 4 Students" outside the US Supreme Court. Students from NYRA and SSDP protest the Morse v. Frederick decision outside the Supreme Court. Students protest for the right to free speech outside the Supreme Court.

NYRA believes the right to be free from government censorship applies to everyone regardless of age. However, school administrators have frequently tried to censor student speech in a variety of ways: banning clothing with certain messages, removing articles from school newspapers, preventing students from passing out materials at school, turning off the microphone when students are giving a speech, or punishing students for writing material online. In many of these instances, students have successfully brought their school to court over violation of their First Amendment rights and won.

The right to free speech at school

The most famous case for establishing the idea that young people’s First Amendment rights are protected while they are in school was Tinker v. Des Moines (U.S. Supreme Court, 1969). In 1965, students John & Mary Beth Tinker and Christopher Eckhardt were threatened with suspension for wearing armbands to protest the Vietnam War. Their case ended up at the U.S. Supreme Court who, in a 7-2 decision, sided with the students and concluded that the schools failed “to show that its action [punishing the students] was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

The Court also set a precedent for other cases involving student rights by concluding that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that “in our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect.” While many courts have followed what became known as “the Tinker Standard” since then, other courts have ruled in ways that chip away at the protections those students fought for.

Controlling What Students Wear

People of any age use clothing as a way to make statements about political or personal beliefs or show an interest in music or sports. It is therefore no surprise that many of the free speech cases in schools revolve around what students are allowed to wear.

Statements made on clothes (or buttons, jewelry, etc.) are considered forms of speech and are mostly protected by the First Amendment. Schools cannot ban a particular shirt, just because they don’t agree with the statement or because they feel it may disrupt learning. Despite this, schools have punished students from wearing everything from shirts criticizing the President to supporting rival sports teams. In most of these cases, the school has violated the constitutional rights of students.

However, it is not against the law for schools to make general rules about the type of clothing (no written words, no shorts, uniforms) if they apply to everyone equally. Unfortunately, rules about dress codes and uniforms, because they apply to all students, have been supported by the courts.

School Newspapers and the Hazelwood Standard

About twenty students with signs saying "Save our Paper" and "Bring the Bulldog Back." Students at the University of Redlands protest cuts to the student newspaper, which they saw as retaliatory for an article criticizing the school. (Photo by Micah Escamilla/Redlands Daily Facts)

If you are writing for your school newspaper, the rules for whether the school can censor your work is largely governed by the court case of Hazelwood School District v. Kuhlmeier (U.S. Supreme Court, 1988). In this case, students at Hazelwood East High School attempted to publish two articles dealing with teen pregnancy and the effects of divorce on children in an issue of their school newspaper. However, the principal believed these articles were inappropriate and decided to withhold them from publication. Three students brought the case to court, alleging a violation of their First Amendment rights. In a 5-3 decision, the U.S. Supreme Court decided that the principal’s actions did not violate the students’ First Amendment rights because schools are able to set certain standards for student speech that is published and disseminated under their sponsorship. The Court declared that schools have the right to censor speech that is “inconsistent with ‘the shared values of a civilized social order,’” and that exercising editorial control over student speech in school newspapers was justified as long as it related to educational concerns. The Court further asserted that schools may censor “publications, theatrical performances, or other expressive activities” that bear on the public image of the school or relate to legitimate educational concerns as long as the activities “are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”

In this way, the Hazelwood case set different rules for speech that bears the name of the school. The Tinker Standard requires school officials to show that their censorship is based on a reasonable expectation that the content would cause a material and substantial disruption of school activities or an invasion of the rights of others. The Hazelwood Standard, on the other hand, only requires that school officials show that they have a valid educational purpose for their censorship and that the censorship is not intended to silence a particular viewpoint that they just disagree with or that isn’t popular.

However, in order for a school to censor student work under the guidelines set by Hazelwood, four criteria have to be met:

  1. The material must be part of the school curriculum or sponsored by the school. This is usually indicated if the school has lent its name and resources to the publication, if the school created it, if it is supervised by a faculty member, or if it was designed specifically to share information with a student audience.
  2. The material cannot be part of a public forum. A public forum is created when school officials have “by policy or practice” allowed students unrestricted use of a publication. This is often indicated where students editors have final authority over the content of the publication.
  3. The censorship must have a valid educational purpose. Even where the school has control over a curriculum-based newspaper in a non-public forum, it can only censor material for limited reasons. Reasons can include material that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences;” the inclusion of sensitive topics; and material advocating undesirable behavior or associating the school with a certain position on politically controversial issues. Schools still may not engage in “viewpoint discrimination” by forbidding or punishing only certain disfavored opinions.
  4. The state cannot have passed specific “anti-Hazelwood” laws. Some states have adopted “anti-Hazelwood” laws. which means that the school has to prove that the published material would cause a “material and substantial disruption” to the school. As of 2017, states with anti-Hazelwood laws include Arkansas, California, Colorado, Illinois, Iowa, Kansas, Maryland, Massachusetts, North Dakota, Oregon, and Pennsylvania.

These guidelines can also be applied to other school-sponsored material such as yearbooks, literary magazines, radio and TV programs, and graduation speeches.

Off-campus speech

Students have been punished for a variety of statements they’ve made online, ranging from calling out teachers for sexually harassing students or for criticizing their school in other ways. Schools may be concerned about students who have used the internet to intimidate others, but they often take extreme measures to punish students or abused their authority in demanding students to give up their passwords to their social media accounts. The courts are unclear whether the schools can punish students for speech made online, even when that speech is about the school or other students. In some of these cases, the courts have upheld the students’ rights to free speech and in others they have sided with the schools, which makes it difficult to determine a definitive rule, but NYRA believes that the school doesn’t have the right to censor you.

What You Can Do

You can take the following steps to fight censorship at school:

  1. Know the law. The most important part of fighting for your rights is knowing the law. You can use your knowledge of the law to your advantage, whether that is making sure that your article is published or presenting a case for why it is potentially a violation of your rights to be punished for expressing yourself. You can learn about previous cases below.
  2. Understand that some speech is not protected. It is important to note that while freedom of speech in the United States is a right protected by the Constitution, there are exceptions that make that right a limited one. These exceptions include: incitement to “imminent lawless action”; false statements of fact; obscenity; fighting words; copyrighted material; and false advertising. It is legal for the government and your school to make rules restricting speech in these categories. Additionally, courts have repeatedly upheld censorship in cases where student speech is sexual in nature, appears to promote drug use or supports activities that may be deemed disruptive or illegal. However, this doesn’t mean that you shouldn’t fight for something when the law isn’t on your side – just be aware that it is that much more difficult.
  3. Get it in writing. If your school does try to censor you, ask specifically what the objections are and try to get them to write it down or print it. That way, you’ll know exactly why they are censoring you.
  4. Try to appeal. If your teacher is complaining, talk to your principal. If it’s your principal, talk to the school superintendent. Attend your school board’s meeting to let them know your situation. When appealing a decision, make sure you have well-thought out reasons for arguing your case.
  5. Get others involved. Talk to fellow students, other faculty, and parents. Their support can have a big influence.
  6. Inform the media. Contact your local newspapers and television stations.
  7. Get help from national organizations. The Student Press Law Center and the American Civil Liberties Union also have a lot of resources on students’ rights.
  8. Establish student publications as a public forum for student expression. If a policy is not already in existence for your school, push your principal, superintendent, or school board to adopt one protecting the right of student journalists to make their own content decisions. The Student Press Law Center’s Model Guidelines for Student Publications, sets reasonable limitations on the material that students can include in their publications.
  9. Get Anti-Hazelwood Laws Passed in Your State. You can help prevent Hazelwood by making sure your state has taken the proper precautions to contain it. Explain to your state and local lawmakers the importance of countering Hazelwood’s spread, and tell them how it affects you.
  10. Start Your Own Paper.  Hazelwood restrictions cover official school papers, but schools are unable to censor blogs or papers you publish on your own.

Appendix: A list of free speech cases involving students

As you can see, many students have taken their schools to court over violation of their free speech rights. While many of those cases are won by the students, courts have also denied those rights in specific circumstances. Although differen courts may decide the exact same case differently, glancing through the following list may help to you to determine roughly what kind of activity is protected by the First Amendment. You can use this knowledge to argue against why you or other students should not be punished or to illustrate to your school officials why their policies may actually be violating the law.

Cases found in favor of the student:

  1. Tinker v. Des Moines (U.S. Supreme Court, 1969): A precedent-setting case where the right of students to wear black armbands protesting the Vietnam war was protected by the First Amendment.
  2. Scoville v. Board of Education of Joliet Township (Seventh Circuit Court of Appeals, 1970): Two students were expelled for publishing a newspaper that contained editorials critical of the school and the principal and vulgar language. The court condemned the school’s decision as a violation of the students’ First and Fourteenth Amendment rights.
  3. Thomas v. Board of Education, Granville Central School Dist. (Second Circuit Court of Appeals, 1979)  Students created and published an independent newspaper that school officials deemed “obscene” and punished them for it. The court ruled that the school could not punish student for distributing material off-campus.
  4. Chandler v. McMinnville School Dist. (Ninth Circuit Court of Appeals, 1992): The court decided students cannot be punished for wearing buttons with the word “scab,” even if the word can be considered insulting.
  5. Jeglin v. San Jacinto Unified School Dist. (Central District Court of California, 1993): A federal district court in California struck down a prohibition on the wearing of any sports apparel in a junior high school.
  6. Beussink v. Woodland R-IV School Dist. (Eastern District of Missouri, 1998): A high school student was suspended for creating a personal web site on his own computer where he used vulgar language to attack his teachers and school officials. The court ruled that school officials had violated the student’s First Amendment Rights because his speech had not caused a substantial disruption to the school environment.
  7. Saxe v. State College Area School Dist. (Third Circuit Court of Appeals, 2001): The court found the the school district’s anti-harassment policy as “unconstitutionally overbroad.”
  8. Kincaid v. Gibson (Sixth Circuit Court of Appeals, 2001): A student editor for the Kentucky State University’s yearbook made various changes to the yearbook, both in content and design. The Vice President of Student Affairs objected to the changes and prevented them. The court ruled that the University administration violated the First Amendment rights of the student editors, because the yearbook was a limited public forum and that the school’s actions were arbitrary and unreasonable.
  9. Sypniewski v. Warren Hills Regional Bd. of Education (Third Circuit of Appeals, 2002): The court decided that students cannot be punished for wearing a “You Might be a Redneck If…”  shirt.
  10. Newsom v. Albemarle County School Board (Fourth Circuit Court of Appeals, 2003): A student cannot be punished for wearing a shirt that reads “NRA Shooting Sports Camp.”
  11. Dean v. Utica Community Schools (Eastern District Court of Michigan, 2004): At Utica High School a student member of the school newspaper published an article about a lawsuit against her school district involving a complaint against the district’s bus garage. The students were told to remove the article due to the ongoing litigation and because the article was based on “unreliable sources” and “highly inaccurate.” The court ruled that the student newspaper was an example of a limited public forum and that the school had censored the article in its own interest, by preventing the expression of its viewpoint, and then claiming it was inaccurate.
  12. Guiles Guiles v. Marineau (Second Circuit Court of Appeals, 2006): The court defended a student’s right to wear a shirt depicting George W. Bush with the body of a chicken surrounded by oil rigs, dollar signs, cocaine, and alcohol with the words “Chicken-Hawk-In-Chief.”
  13. Griffith v. Butte School Dist. (Supreme Court of Montana, 2010): When Renee Griffith submitted her graduation speech for approval, she was asked to remove all religious references. When she refused, she was prevented from speaking. The court ruled that Griffith’s speech was the expression of her own views and not that of the school and therefore didn’t violate the Establishment Clause.
  14. Barnes v. Zaccari (Eleventh Circuit Court of Appeals, 2012): A college student used his personal Facebook account to protest a plan to construct a parking garage on campus. The university president began an investigation into the student’s’ academic records, medical history, religion, and registration, and had the student expelled from the University. The court found that the university president was personally liable for the violation of the student’s right to due process.
  15. B.H. and K.M. v. Easton Area School District (Third Circuit Court of Appeals, 2013): The court upheld an injunction preventing the Easton Area School District from enforcing a ban on the popular breast cancer awareness bracelets that said “I heart boobies.”
  16. Burge v. Colton School Dist. (U.S. District Court of Oregon, 2015): A student sent a Facebook messages to his friends, stating that his health teacher needed to be shot. When the messages were reported to the principal, the student was suspended. The student sues and the court  concluded that his off-campus Facebook messages were protected because they had not caused a substantial disruption to the school environment.  
  17. Yeasin v. University of Kansas (Court of Appeals of Kansas 2015): A student at the University of Kansas posted several threatening tweets aimed at his former girlfriend, who had a protection order against him and was expelled as a result. The court ruled that the University did not have the jurisdiction to punish Yeasin for his off-campus behavior.

Cases found in favor of the school:

  1. Melton v. Corley R. Young et al. (Sixth Circuit Court of Appeals, 1972) A high school student was suspended for wearing an emblem representing a Confederate Flag on the sleeve of his jacket. The Sixth Circuit found that the school principal’s decision was correct as the student’s actions would lead to substantial disorder in the school and thus impede the learning process.
  2. Bethel School Dist. No. 403 v. Fraser (U.S. Supreme Court, 1986) At a school assembly Matthew Fraser nominated a fellow student for elective office with a speech that seemed to be a graphic sexual metaphor. The U.S. Supreme Court found that the school was just with its discipline, because the First Amendment does not prevent schools from prohibiting the type of vulgar and lewd speech that is inconsistent with the course of public school education.
  3. Hazelwood School District v. Kuhlmeier (U.S. Supreme Court, 1988) In this precedent-setting case, the Court ruled that schools are able to set certain standards for student speech that is published and disseminated under their sponsorship.
  4. Broussard v. School Board of the City of Norfolk (Eastern District Court of Virginia, 1992): A student refused to change out of a shirt printed with the words “Drugs Suck!” and was suspended for a day. The court found that the word “suck” was vulgar and that its use in the school was disruptive.
  5. Boucher v. School Board of the School District of Greenfield (Seventh Circuit Court of Appeals, 1998) A student published and distributed an independent newspaper with an article giving instructions on how to hack the school’s computers and was subsequently expelled. The court ruled that the school was reasonable in believing that the article would cause a significant disruption.
  6. Henerey v. City of St. Charles (Eighth Circuit Court of Appeals, 1999) A student was disqualified from the election for class president as he had passed out condoms to accompany his campaign slogan. The court ruled that the school had a responsibility to maintain decorum and to minimize any threats to its educational mission.
  7. Boroff v. Van Wert City Board of Education (Sixth Circuit Court of Appeals, 2000) A high school was allowed to ban t-shirts depicting Marilyn Manson because the court asserted that the school was right in prohibiting clothing that promoted “values that are so patently contrary to the school’s educational mission.
  8. Cole v. Oroville Union High School Dist. (Ninth Circuit, 2000) Two students were invited to give graduation speeches. When they submitted the speeches for approval, the principal found the speeches to be proselytizing and sectarian and the students were asked to change them. The court ruled that the principal did not violate the students’ right to freedom of speech, because they limited the speech in the graduation speeches in order to avoid violating the Establishment Clause.
  9. West v. Derby Unified School Dist. (Tenth Circuit. 2000) A student was suspended after drawing the confederate flag on a piece of paper despite the school’s recently instituted harassment and intimidation policy. The court upheld the school’s decision, arguing that the student’s actions could have led to a substantial disruption of school discipline.
  10. J.S. v. Bethlehem Area School Dist. (Supreme Court of Pennsylvania, 2002) A middle school student created a website that made derogatory and threatening comments about his teacher and principal, which led to his expulsion. The court ruled in favor of the school and found the comments disruptive and threatening despite occurring off-campus.
  11. Lassonde v. Pleasanton (Ninth Circuit, 2003) A student that was invited to speak at graduation was asked to remove “overtly proselytizing comments” as they would violate the Establishment Clause. The court found that the school did not violate the student’s rights as the school’s refusal to allow a sectarian speech was necessary to avoid violating the Establishment Clause.   
  12. Hosty v. Carter (Seventh Circuit, 2005) The editor of Governors State University’s student newspaper was told that any subsequent issues would need to be approved by a school administrator, because it had published stories and editorials that were critical of the administration. However, there was already a policy in place that specified that the student newspaper staff could determine the content of their publications without censorship or prior approval. The court ruled against the students, determining that because the newspaper had not previously been established as a public forum like under the Hazelwood standard, and was in fact a nonpublic forum subsidized by public funds then it was open to reasonable regulation.
  13. Morse v. Frederick (U.S. Supreme Court, 2007) During a school trip to watch the Olympic Torch Relay, a high school student displayed a banner saying “Bong Hits 4 Jesus” and was subsequently punished. The court ruled against the student, stating that the speech on the banner was not political in nature, and that its content could reasonably be viewed as promoting illegal drug use.
  14. Doninger v. Niehoff (Second Circuit, 2008): Administrators barred a high school student from running in a student election after the student criticized administrators online. The court held that the student’s speech was not protected, because it foreseeably created a risk of substantial disruption within the school environment, and that the school could regulate the off-campus speech given its nexus and link to the actual school environment.
  15. Corder v. Lewis Palmer School Dist. No. 08-1293 (10th Cir. May 29, 2009). A high school student gave a speech, different than the one she submitted, that was full of religious references at her commencement ceremony and was made to apologize. The court ruled that valedictory speeches constitute school-sponsored speech and that a school district is entitled to review the content of these speeches.  
  16. A.M., ex rel. McAllum. v. Cash, (Fifth Circuit, 2009) The court upheld that the school’s ban on the Confederate flag ban was constitutional.
  17. Palmer ex rel. Palmer v. Waxahachie Independent School Dist. (Fifth Circuit, 2009) A school was taken to court because it banned all written messages on student clothing, but because the ban was “content-neutral” it was upheld.  
  18. S.J.W. ex rel. Wilson v. Lee’s Summit School Dist. (Eighth Circuit, 2012) Two students created a blog that discussed events at their school. It also contained sexist and racist content and caused a disturbance in the school when it went viral. The court ruled that student speech which disrupts the school environment is not protected by the First Amendment.
  19. Wynar v. Douglas County School Dist. (Ninth Circuit, 2013) A high school student was suspended for sending MySpace messages to his friends that mentioned weapons he had in his possession and the students he intended to kill. The court ruled in favor of the school, stating that school officials may restrict speech if they predict that it is likely to cause substantial disruption to school activities.
  20. Keefe v. Adams (Eighth Circuit, 2016) A nursing student at Central Lakes College was expelled for Facebook posts that, according to the college, violated the professional standards students were instructed to follow. The court ruled that the college had the right to hold students to the standards of their intended profession.
  21. Bradford v. Norwich City School Dist. (Northern District Court of New York, 2014) While at home, a student sent text messages to another student, expressing a desire to harm a third student and was suspended. The court ruled the school had not violated the student’s First Amendment rights and asserted that schools have the right to prohibit speech that can disrupt the work and discipline of the school.
  22. Dariano vs. Morgan Hill Unified School Dist. (Ninth Circuit, 2014) On Cinco de Mayo, three students wore clothing to school that depicted the U.S. flag. Upon hearing word that threats of violence were made, the school authorities asked the students to turn their shirts inside-out. The court ruled that the school’s fears that the clothing could incite violence were legitimate.
  23. Bell v. Itawamba County School Board (Fifth Circuit, 2015) A high school student created and posted a rap song that criticized two school coaches at for harassing students. The song was composed off-campus and posted online from his home computer, but the student was suspended. The court ruled that the student’s speech would have caused a substantial disruption to the school environment and was not protected by the First Amendment.