Many years ago the United States Supreme Court held that students do not “shed their Constitutional rights to freedom of speech or expression at the schoolhouse gate.” In that landmark case of Tinker v. Des Moines Independent Community School District, the Court held that the First Amendment to the United States Constitution applies to schools and that school officials cannot censor student speech unless it disrupts the educational process. This generally means that students can speak, write articles, assemble together to form groups, and petition school officials to make changes to the school system.
But there is an important distinction between public and private school students under the First Amendment. The First Amendment—and other provisions of the first ten amendments to the U.S. Constitution, known as the Bill of Rights—limit the government’s ability to restrict or interfere with those individual rights. Because public school officials are government officials (known as state actors) they are subject to these Constitutional limitations on government actions. But private school officials are not government officials and the First Amendment (and other provisions of the Bill of Rights) do not limit the ability of private school officials to regulate or restrict student speech.
In addition to the U.S. Constitution, many state constitutions include provisions that protect freedom of speech or expression—and some state constitutions have been interpreted by the state courts to provide greater protection for freedom of speech than the U.S. Constitution. A few states have enacted laws (statutes) that provide greater protection for freedom of speech.
On-Campus Speech v. Off-Campus Speech
There is an important distinction between a school’s ability to regulate or restrict speech that occurs on school grounds (on-campus speech) and the school’s ability to regulate or restrict speech that does not occur on school grounds (off-campus speech). Off-campus speech may include verbal speech; text, chat, or other messages between students; social media posts; or a student’s private journal or diary entries.
Courts have generally held that schools may regulate off-campus speech when there is a sufficient connection (nexus) between the speech and the school. And there is always a sufficient nexus when the school determines that it faces a credible, identifiable threat of school violence. A student’s lack of intent to communicate off-campus speech to any other party is relevant to the determination of whether the speech constitutes a credible threat but is not dispositive.
In California, the principles established by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District apply, affirming that students in public schools have First Amendment rights to freedom of speech, as long as their expression does not disrupt the educational process. However, these First Amendment protections do not extend to private school students in the same way, since private schools are not considered state actors. California's state constitution also safeguards freedom of speech, potentially offering broader protections than the federal constitution. When it comes to on-campus speech, schools have more authority to regulate student expression. For off-campus speech, California schools can impose regulations if there's a significant connection to the school environment, such as in cases where the speech poses a credible threat of violence. The intent behind off-campus speech is a factor in determining its impact, but it is not the sole criterion for assessing whether it constitutes a credible threat.
