STUDENTS’ RIGHTS ON PUBLIC SCHOOL CAMPUSES

                                                      A. FREEDOM OF SPEECH

                                                                   1. Expression

Students on public school campuses enjoy constitutional protection of free speech, including religious free speech. Student speech can be prohibited only when the speech activities “substantially interfere with the work of the school, or impinge upon the rights of other students.” [1] In Tinker v. Des Moines Independent School District, the United States Supreme Court stated:

            In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in schools as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. [2]

The Supreme Court further stated: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” [3]

The Court recognized that when a student is “in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions.” [4] Students may exercise their constitutional right to free speech while on public school campuses before and after school, in between class, in the cafeteria, or on the playing field. Students have a right to free speech during noninstructional time.

Students are compelled to be in school until age sixteen. While they are under compulsory attendance, the State must protect their constitutional rights to freedom of expression. As soon as students walk on the premises of any public school, kindergarten through college, they carry with them the First Amendment's protection of free speech. Students certainly do not shed their constitutional rights when they enter the schoolhouse gate. [5]

Schools may only prohibit student speech if there is specific evidence that the speech materially and substantially interferes with the ordinary operation of the school. Merely because others disagree or are offended by the message is no reason to prohibit student speech.

Everyone would agree that when a student exits the school bus on the way to class, the student has the right to converse with another student. One student can say to another student, “I like you.” The same student can go even further and say, “I love you.” Moreover, the student can invite a friend to his/her house after school for a birthday party or some other after-school program. This proposition is not only constitutionally correct; it makes common sense. Since students may speak about secular topics, they may also speak about religious topics. During noninstructional time a student may tell a friend, “Jesus loves you.” This student may also invite another student to an after-school church function.

                                                         2. Literature Distribution

The right to free speech includes the right to distribute literature. [6] The Supreme Court considers the distribution of printed material as pure speech. [7] Indeed, peaceful distribution of literature is a protected form of free speech just like verbal speech. [8]

The Supreme Court has recognized “that the right to distribute flyers and literature lies at the heart of the liberties guaranteed by the speech and press clauses of the First Amendment.” [9] “From the time of the founding of our nation, the distribution of written material has been an essential weapon in the defense of liberty.” [10] Literature distribution includes anything in printed format such as brochures, pamphlets, newspapers, cards, stamps, books, symbols and pictures.

Religious speech enjoys the same protection as political speech. [11] Students not only have the right to verbal and written speech, they have the right to persuade, advocate and even proselytize a religious viewpoint. The Supreme Court declared that “free trade and ideas mean free trade and the opportunity to persuade, not merely to describe facts.” [12] Merely because other students or school officials disagree with the viewpoint of the message is no reason to deny student speech. [13] The Supreme Court could not make this point any clearer than it did in Tinker:

            Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk and our history says that it is this risk of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence of vigor of Americans who grew up and live in this relatively permissive, often disputatious, society. [14]

It is usually impermissible for schools to require students to submit their literature to a school official for review prior to distribution.  Printed speech enjoys the same rights as verbal speech. Just as it would be unconstitutional and ludicrous for schools to preview all student verbal communication before it occurs, it is similarly unconstitutional to do so with respect to printed communication. Indeed, the Supreme Court's decision in Tinker in no way suggests that students may be required to announce their intentions of engaging in a certain conduct beforehand so school authorities may decide whether to prohibit such conduct. [15] The Supreme Court has unequivocally stated that prior notification is “quite incompatible with the requirement of the First Amendment.” [16] Certainly the “delay inherent in advanced notice requirements inhibits free speech by outlawing spontaneous expression.” [17] Indeed, when “an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all.” [18] Finally, with respect to literature distribution, schools may not confine the distribution of literature to a designated location or to a bulletin board. Just as a school cannot require all students to report to a designated location before engaging in verbal communication, schools may not limit literature distribution in this manner. Student speech through literature cannot be confined to a bulletin board. Students have a constitutional right to free speech during noninstructional time, and this includes the right to speak through literature. Speech does not lose any constitutional protection simply because it is transformed from verbal expression to the printed page.

                                                           3. Clothing and Jewelry

Students may communicate a message through words or symbols on clothing or by wearing jewelry. Indeed, students in the Tinker case wore black armbands to school as a symbolic protest to the Vietnam War. The Supreme Court held that such expression was protected by the First Amendment. [19] The only difference between clothing and jewelry, as opposed to verbal or written speech, is that clothes and jewelry are carried into the classroom during instructional time. Students cannot turn off the message on a T-shirt in the same manner that they can stop speaking when they enter the classroom or refrain from literature distribution during class session. Schools may therefore place some restrictions on clothing or jewelry if it is worn during class. However, generally, if the school allows T-shirts or jewelry with secular messages or symbols, the school cannot prohibit students from displaying religious T-shirts or jewelry. If a school allows students to wear a T-shirt with a Nike symbol or the slogan, “Just Do It,” the school cannot prohibit students from wearing a T-shirt with the message, “Jesus died for you.” While schools may restrict the wearing of clothing or jewelry during class time, the wearing of clothing or jewelry during noninstructional time must be treated exactly as student verbal or printed speech. In other words, students have a constitutional right during nonclass time to communicate through clothing or jewelry. [20] If the First Amendment teaches us anything, it teaches that “[a]ll ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion, have the full protection of the guarantees [of the First Amendment].” [21]

                                                   4. Class Discussion and Reports

While students have a constitutional right to free speech during noninstructional times, schools may place certain restrictions on speech during class time. Students may express their views in any subject being taught so long as it consistent with the subject matter discussed at that time. While a student may pass out a religious tract during noninstructional time, the student may not pass out the same tract during a math class. However, students may express a religious view during math class so long as it is consistent with the subject being studied.

If students are asked to give verbal or written reports, then students may also give reports on religious topics so long as the report falls within the parameters of the assignment. For example, in a literature class, if students are required to read a literary book and give an oral or written report, then these students may also read religious literature and report on this literature. Teachers may not prohibit students from giving written or oral reports solely because the content is religious. [22] Some younger grades have what's known as “Show and Tell.” This is a time where students are asked to bring in personal items to show to the rest of the class and then tell about these items. So long as the student's item brought into Show and Tell is consistent with the assignment, schools are prohibited from restricting students from either showing or telling about their item solely because the content is religious. Students have a constitutional right to show and tell their item even if the item centers on religion.

                                                             B. EQUAL ACCESS

Although the Equal Access Act (hereinafter the “Act”) prohibits discrimination against student-initiated, noncurriculum-related student clubs, [23] the First Amendment provides additional rights not covered by the Act. [24] The Act should be thought of as a law that provides basic rights. Issues not covered by the Act are often commanded by the First Amendment. For example, while the Act requires the club to be student-initiated and student-led, the First Amendment may allow the club to be adult-initiated and adult-led. The Act applies to clubs desiring to meet during “noninstructional” time. The First Amendment applies to any time the school allows other clubs or groups to meet, which could include instructional time. Furthermore, while the Act applies to “secondary schools,” which each state typically defines as high school, middle and junior high, the First Amendment applies to all grade levels, including K through 12. 

If a public secondary school receives federal funds and allows one or more noncurriculum-related student groups to meet on campus, then the school cannot prohibit other noncurriculum-related student groups from meeting on campus unless such clubs “materially and substantially interfere with the orderly conduct of educational activities within the school.” [25]

Equal access means exactly what it says -- equal access to every facility of the school which is used by at least one or more noncurriculum-related student groups. This includes use of the classroom facilities, copy machines, intercom systems, bulletin boards, school newspaper, yearbook, annual club fairs, financial sponsorship and any other benefit or facility afforded to secular student clubs. [26] Equal access includes equal treatment regarding financial benefits or burdens such as access fees. [27]   There must be no discrimination and no denial with respect to access of any school facility. All clubs must be treated equally regardless of their viewpoint.

                                               SUMMARY OF STUDENT RIGHTS

! May engage in verbal speech during noninstructional time.

! May distribute literature during noninstructional time.

! Schools may not preview literature prior to its distribution in order to censor the viewpoint.

! Schools may not confine literature distribution to a designated spot or to a bulletin board based on its viewpoint.

! May meet around the flagpole with other students during noninstructional time for prayer.

! May engage in free speech during class so long as the speech is consistent with the topic being studied.

! May wear clothing with religious messages or symbols including religious jewelry on the same basis and in the same manner as the school allows secular words, symbols, or jewelry to be worn and displayed.

! May wear clothing with religious words and symbols and wear religious jewelry during noninstructional time.

! May give oral and written reports on religious topics so long as the report or presentation is consistent with the assignment.

! May show and tell religious items so long as the item and the presentation are consistent with the assignment.

! May conduct Bible clubs or religious meetings on the same terms and conditions and at the same times and locations as provided to other secular uses.

! Bible clubs must be provided equal treatment and be afforded equal access to school facilities such as the bulletin board, intercom system, annual club fair, school newspaper, yearbook, copy machine, announcements, time and place of meetings, and financial sponsorship, or any other opportunity offered to secular groups.