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 Colorado, as in all states, students in public schools retain their First Amendment rights to freedom of speech and expression, as established by the Supreme Court in Tinker v. Des Moines Independent Community School District. However, these rights are not absolute; public school officials can regulate speech that materially disrupts the educational process or poses a credible threat to school safety. Private school students, on the other hand, do not have First Amendment protections against restrictions imposed by their schools, as private school officials are not considered state actors. The distinction between on-campus and off-campus speech is also significant. While schools have more authority to regulate on-campus speech, they may also regulate off-campus speech if there is a clear connection to the school environment or if the speech poses a credible threat of school violence. Colorado state law may offer additional protections for student speech, and the state constitution could potentially be interpreted to provide broader speech rights than the U.S. Constitution. It's important for students and parents to understand the specific policies of their school district and any relevant state laws that may affect student speech rights.
