Free Speech


Freedom of speech is an invaluable piece of American society. This liberty is so important, that it is the First Amendment in the U.S Bill of Rights. Young people often have strong opinions and emotions about things going on in the world, or things going on around them, which sometimes gets them in trouble in school. Knowing the balance of the First Amendment when applied in the education setting is an important balance to understand, and can prove effective in knowing what your child can and cannot say in the school setting.


Since the First Amendment applies to everyone on U.S soil, it should also apply to children in the school setting, right? Well, the correct answer is that it depends. While the First Amendment does apply to all people in the United States, according to the U.S Supreme Court, student’s free speech rights “are not automatically coextensive with the rights of adults in other settings” (Bethel Sch. Dist. v Fraser, 478 U.S, 675 (1986). This translates to meaning that yes, students are free to express their personal political or religious views or opinions on school property, and cannot be disciplined for doing so, however only if these views or opinions do not impinge upon the rights of other students. Examples of this would be shaming someone on school grounds for their religion, or sexual orientation. A real world example is that of a fifth-grade student who wrote in a class assignment that his wish was to “blow up the school with the teachers in it”. This expression, though clearly not viable from a fifth grader, caused concern among staff and permitted school discipline due to disruption of the educational process (Cuff v. Valley CSD, 677 F. 3d 109 (2d Cir. 2012)).


Still and yet, there is still a gray area in terms of free speech in schools. There is an open issue regarding the laying of clear boundaries that establish a standard for what can, and what cannot be said in schools. According to a 1986 decision from the U.S Supreme Court (Bethel Sch. Dist. v. Fraser, 478 U.S 675 (1986)), an understanding had been established that school districts could impose restrictions on student speech that officials deemed as offensive. However, since then, the U.S Court of Appeals for the Second Circuit has ruled that the term “offensive” refers to speech that is lewd vulgar, or indecent (Guiles v. Marineau). This also covers speech that is sexually explicit, profanity, or material that is to be published in a school newspaper, or material that may be distributed on school grounds.


Since the lines between free speech, and hate speech, or speech that incites violence are often finely drawn and sometimes invisible, school districts may sometimes have a hard time censoring what students may say. According to the U.S Supreme Court, it is inevitable that students will engage in personal intercommunication with other students throughout the day. The Supreme Court has ruled that these communications “may not be confided to the expression of those sentiments that are officially approved” (Tinker v. Des Moines Indep. City. Sch. Dist., 393 U.S 503 (1969)). In order to justify any action that censors, or prohibits a student’s expression of his or her personal opinions, a school must show that the student’s expression would result in the material and substantial interference with the work of the school, or would interfere with the rights of other students. An example of viable justification would be that a student expressed to his class that he hated Muslim immigrants, and felt that because of the terror attacks in 2001, they are dangerous, and that other students should be cautious of them. A statement like this would be a violation of another student’s rights to a learning environment that is not hostile, and free of fear. The school would be justified in reprimanding this student, and disciplining him or her for hate speech, as well as inciting fear, and creating a hostile environment for students of Muslim faith.


Though students have a constitutional right to free speech, in the school setting, their speech may be censored if it goes against their policies, or if it steps on the rights of other students. When it comes to upholding a student’s constitutional rights, school district’s must play this balancing act between upholding one students rights, while keeping them in balance with the rights of the next student. 



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Managing Attorney

Angel A. Castro, III, Esq.

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Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.


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