legal insights


Student Expression and the First Amendment


very year, schools in California face questions about student speech and a school’s ability to discipline students or regulate that speech. Student actions ranging from politically meaningful to seemingly inane can implicate students’ constitutional rights to free expression, which schools must balance against the potential disruption to student learning.

Several Supreme Court cases along with California’s Education Code create guidelines for school districts to balance students’ rights to expression with the potential for disruption of the educational environment.

The U.S. Supreme Court ruled in 1969 in Tinker v. Des Moines Independent Community School District, 303 U.S. 503 (1969), that the First Amendment applied to public schools, and schools could not censor student speech that did not disrupt the educational process. The Court found that the students’ black armbands protesting the Vietnam War were not disruptive, and famously wrote that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Supreme Court later described some of the boundaries of students’ right to free expression in Bethel School District v. Fraser, 478 U.S. 675 (1986) and in Morse v. Frederick, 551 U.S. 393 (2007). The Court in Bethel School District v. Fraser found that the school’s discipline of a student for his election speech full of sexual innuendos and double entendre at a school assembly was not a violation of his First Amendment rights, as schools can appropriately regulate vulgar and offensive speech. Similarly, in Morse v. Frederick, school principal Deborah Morse suspended student Joseph Frederick after he displayed a banner reading “BONG HiTS 4 JESUS” across the street from the school during the 2002 Winter Olympics torch relay in Juneau, Alaska. The Court found the discipline was not a violation of the student’s First Amendment rights, broadly allowing for restriction of speech that advocates illegal drug use without commenting on a political or social issue.

In Tinker v. Des Moines Independent Community School District, the Court found that the students’ black armbands protesting the Vietnam War were not disruptive, and famously wrote that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

These constitutional protections and boundaries are embedded (and expanded) in California’s Education Code sections 48907 and 48950, which give public school students in California broad free speech rights. These rights include “the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications.” They also limit school districts from disciplining high school students for speech that would be protected speech outside of campus, but allow for reasonable time, place and manner restrictions.

Applying these constitutional principles to student expression in real time can create challenges for schools, and the constant evolution in types of speech and venues for expression for students leaves schools facing uncertain decisions that may not have been neatly addressed already by the courts. For example, when a student posts a derogatory or offensive social media post about another student, can the school discipline that student? What should schools do when faced with student protests or walkouts?

In Shen v. Albany Unified School District, No. 3:17-cv-02478-JD (N.D. Cal. November 29, 2017), a Northern California district court provided guidance for a school’s ability to discipline students for off-campus social media use. A high school student created an Instagram account that posted offensive content directed at African-American students and staff members, which included racist and derogatory comments with images of nooses, white hoods and other racist images targeted at individuals at the school. The school expelled the student who created the posts and suspended students who liked, commented approvingly and followed the posts. The legal question for the court was whether the students’ Instagram activity was protected from school discipline by the First Amendment. Under Tinker, school speech may be constitutionally restricted only if it risks a substantial disruption of the school environment or violates the rights of other students to be secure.

The court in Shen found that a school could expel and suspend students for racist and derogatory social media posts targeted at other students, as well as writing approving comments on or “liking” the posts, even if the social media interaction occurred off campus. The court found that while even offensive social media posts have First Amendment protections, case law makes clear that “students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.” The offensive content caused substantial disruption on campus, as students were “visibly distraught and agitated” at school. The court further found that students who commented approvingly or “liked” the posts had “meaningfully contributed to the disruption” at the high school, and that students were upset in part because these other students had supported the racist and derogatory posts. The court limited its ruling somewhat, and did not uphold the school’s decision to discipline students who had simply “followed” the derogatory social media account or “liked” posts that did not target specific individuals, as the court found their actions were not proven to contribute to the disruption at the high school.

Students’ symbolic speech has raised questions for school districts this year as well. In the aftermath of the tragic mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., some schools have seen increases in student activism and protests on campus, including student walkouts against gun violence. Schools are tasked with providing a safe learning environment for students and with preparing students to be engaged, civic-minded participants in our democracy. A walkout is considered symbolic speech and protected under the First Amendment, but under Tinker, student speech can be limited if it disrupts the educational process. Generally students leaving class would be considered disruptive to the education environment, and courts have previously ruled that student absences for a political demonstration walkout should be treated in the same way as any other unexcused absence. Many schools worked to find a balance between minimizing disruption of students’ education and allowing student expression, and importantly have not applied different consequences for student speech based on the political viewpoint of that speech.

As schools continue to face real-time decisions about respecting students’ rights to free expression balanced against the potential for disruption at school, districts should rely on their board policies addressing student expression. CSBA’s recent Legal Update video dove deeper into the history of First Amendment issues in education and recent student and staff freedom of speech issues impacting school districts and county offices of education — a video recording of the panel is available at