Free speech in schools

The continuing development of student and employee rights

ince the U.S. Supreme Court’s holdings that the Constitutional guarantee of free speech extends to both students and employees in schools, questions about the scope of that right have persisted and, with recent events, have gained significant media attention. Social media, political debates and current events have tested the public’s understanding of the concept of free speech and, given the pivotal role of local educational agencies in communities, it is no surprise that schools have been at the center of many emerging legal questions.

As a result, it is beneficial for LEAs to stay up to date on relevant judicial decisions to know how courts are deciding these matters and what speech and limitations are permissible. Additionally, understanding legal precedent can aid LEAs as they navigate new issues. This article aims to explore the history of free speech for students and employees and describe recent decisions to highlight how this area of the law is evolving.

Students

There have been many questions raised regarding the extent of student free speech rights in the learning environment and over the years, the Supreme Court has outlined a framework for student free speech cases. In Tinker v. Des Moines Independent Community School District (1969), the Court held that the First Amendment applied to public schools and student speech that did not disrupt the educational process could not be censored. In an oft-repeated quote, the Court opined that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and therefore their wearing of nondisruptive, black armbands protesting the Vietnam War was protected. Almost two decades later, in Bethel School District v. Fraser (1986), the Court further clarified limits to student free speech, holding that schools can regulate vulgar and offensive speech. Similarly, the Court allowed for restrictions of speech that advocated illegal drug use, without commenting on a political or social issue in Morse v. Frederick (2007).

In practice, these rights and boundaries are not always clear or precise, as was seen in a recent case out of the Sixth Circuit. In B.A. v. Tri County Area Schools (2025), the court permitted a school district to limit the speech of two students who were asked to change their shirts that said, “Let’s Go Brandon,” a phrase understood to be a vulgar insult to President Joe Biden. This was permissible under Fraser because of the vulgarity of the message. While the court majority applied the Fraser standard in their ruling, a dissenting judge on the panel argued that Tinker provided the relevant standard due to the political nature of the students’ message and the intent of the Free Speech clause, which is to allow for political critique.

Additionally, regulation of off-campus speech, mainly due to social media posts that affect on-campus life, have recently created a new wrinkle to the legal analysis of protected student speech. For example, in Chen v. Albany Unified School District (2025), the Ninth Circuit ruled in favor of the school district when it imposed discipline on a student for off-campus speech that led to harassment and severe bullying of other students on campus. The decision referenced the Supreme Court’s decision in Mahoney Area Sch. Dist. v. B.L. ex rel. Levy (2021), which emphasized that, a district may still regulate off-campus speech in some instances. Assembly Bill 772 (2025), which requires school districts to have off-campus cyberbullying policies, provides additional leeway for school regulation of off-campus student conduct.

School employees

Like student speech, employee speech has also been considered by various courts. In 1968, in Pickering v. Board of Education (1968), the U.S. Supreme Court held in favor of a teacher who wrote a letter to a local newspaper criticizing the school board. School employees, the Court said, have a right to free speech on matters of public concern but that right is balanced against the school’s interest as an employer to operate efficiently. The employee’s right is not protected if the speech made is knowingly or recklessly false, but otherwise employees have a right to speak out against their own employer.

The 2006 case, Garcetti v. Ceballos (2006) further clarified that a public employee’s speech, when made as a private citizen (as opposed to as part of their official duties), is protected. Thus, when speaking as a private citizen on a matter of public concern, a public employee has a right to free speech so long as the speech is not knowingly or recklessly false and passes the employer balancing test.

As with the student speech cases, the standards created in these cases often involve complex legal analyses that are not always straightforward. For example, in the case of MacRae v. Mattos, et al. (2024), the court considered employee speech on social media when an individual who served as a school board member in one district and high school teacher in another, made a series of controversial posts related to immigration, transgender people and racism. These posts, made prior to her employment as a teacher, drew a great deal of attention from the media in the district where she was a school board member, and were brought to the attention of the other district. Out of concern about the negative impact the posts would have on staff and students, her employment was terminated, and she filed suit. The lower court granted summary judgment for the district, and the First Circuit Court of Appeals agreed, citing the mocking and derogatory nature of the posts and holding that the district’s prediction that disruption would occur was reasonable. The teacher’s appeal petition to the Supreme Court was denied; however, in a statement regarding the denial, Justice Clarence Thomas emphasized his belief that courts across the country are misapplying the public employee free speech framework, suggesting that this test may be further evaluated in the future.

Distinct from MacRae, in Dodge v. Evergreen School District, et al. (2022) the Ninth Circuit found that a teacher’s display of a Make America Great Again hat at an off-campus training was protected speech by a private citizen. Further, though other employees complained, the principal did not satisfactorily show that there was a disruption that required censoring of the protected speech. The outcome of this case when compared to MacRae underscores that these are fact-specific analyses. It is certain that employees’ speech rights are protected to some extent, but exactly how those rights can be exercised and when they can be limited by schools are complex questions, with ever-evolving law to consider.

Cases related to free speech like MacRae and Dodge continue to surface due to current political events and novel situations yet to be considered by courts. LEAs should act with caution and awareness of the complexity of these issues when taking actions that limit either student or employee speech.