First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

– First Amendment of the United States Constitution

The First Amendment includes several specific freedoms that are particularly relevant to K-12 students.

Prohibited Speech: School officials cannot formally restrict most student speech. As a general rule, the U.S. Constitution protects student speech that does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” In addition, school officials bear the burden of justifying any restrictions on student speech. Nevertheless, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Schools also can punish lewd or offensive speech that occurs at school. But when the school’s concerns are not legitimate, its authority to restrict student speech ends. 

Compelled Speech: School districts cannot compel student speech on any topic. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia v. Barnette (1943)

Retaliation: Teachers and other school officials cannot retaliate against students who engage in protected speech in the classroom, on school grounds, or off school grounds. Although the test varies slightly by circuit, the federal appellate courts have held that students can sue for First Amendment retaliation if they were engaged in protected speech, the school took an adverse action, and the student’s speech was a motivating factor for the school’s action. The school’s adverse action must be something that would deter a student of ordinary firmness from engaging in that speech again. Giving a student poor grades or reviews is a clear example. Notably, the Eighth Circuit recently held that “the stress, anxiety, and ostracization arising from a teacher’s false attribution of racist utterances to a middle-schooler” also “might fit the bill.”

Additional Resources:

• Students Don’t Have to Leave Their Faith at Home, Alliance Defending Freedom
  • Students’ Rights
  • Parents’ Rights
  • Teachers’ & Coaches’ Rights
• 4 Things You Can’t Say in the K-12 Classroom, Foundation for Individual Rights and Expression
• K-12 Expression and the First Amendment, Foundation for Individual Rights and Expression
• Free Speech and Mental Health in School, Foundation for Individual Rights and Expression
• Know Your Rights: Religious Freedom, American Civil Liberties Union
• Know Your Rights: Students’ Rights, American Civil Liberties Union

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Tinker v. Des Moines Independent Community School District (1969).

“This ‘freedom to differ’ in public schools ‘is not limited to things that do not matter much’; it is ‘the right to differ as to things that touch the heart of the existing order.'”

W. Va. State Bd. of Educ. v. Barnette (1943).