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freedom of speech

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 Texas, as in all states, the First Amendment to the U.S. Constitution guarantees public school students the right to freedom of speech and expression, as established by the Supreme Court in Tinker v. Des Moines Independent Community School District. This means that public school officials, as state actors, cannot censor student speech unless it disrupts the educational process. However, private school students do not have the same First Amendment protections against their schools, as private schools are not considered state actors. Texas state law also upholds the distinction between on-campus and off-campus speech. While schools have more authority to regulate on-campus speech, they may also regulate off-campus speech if there is a sufficient connection to the school, such as a credible threat of violence. The intent of the student in off-campus speech is considered but is not the sole factor in determining if the speech poses a credible threat. It's important to note that while the First Amendment provides a baseline of protection, Texas may have additional laws or interpretations that offer further protection for student speech, and these can vary based on the specifics of each case.


Texas Statutes & Rules

Federal Statutes & Rules

First Amendment to the United States Constitution
The First Amendment is the primary federal statute that protects students' freedom of speech in public schools.

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government. In the context of public schools, the Supreme Court has interpreted the First Amendment to mean that students do not lose their right to free speech 'at the schoolhouse gate.' This protection applies to public schools since they are considered government actors. However, the First Amendment does not apply to private schools in the same way, as they are not government actors.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
This landmark Supreme Court case is relevant as it specifically addresses the issue of student speech in public schools.

In Tinker v. Des Moines, the Supreme Court held that students do not lose their First Amendment rights to freedom of speech when they step onto school property. This case established the 'Tinker Test,' which states that school officials may not censor student speech unless it disrupts the educational process or invades the rights of others. The case involved students who wore black armbands to protest the Vietnam War and were suspended. The Court ruled that the students' protest was protected by the First Amendment because it did not cause a substantial disruption. This case is the basis for the principle that student speech is protected in public schools, but it also allows for limitations if the speech disrupts the school environment.

Morse v. Frederick, 551 U.S. 393 (2007)
This Supreme Court case is relevant for understanding the limits of student speech, especially concerning speech that occurs at school-sponsored events.

In Morse v. Frederick, the Supreme Court held that schools may restrict student speech at a school-sponsored event when that speech is reasonably viewed as promoting illegal drug use. The case involved a student who displayed a banner reading 'BONG HiTS 4 JESUS' across the street from his school during a televised Olympic Torch Relay. The Court found that the school officials did not violate the student's First Amendment rights by confiscating the banner and suspending the student. This decision illustrates that while students have free speech rights, there are certain types of speech, such as those promoting illegal activity, that schools may regulate.

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
This Supreme Court case addresses the authority of public schools to discipline students for lewd or indecent speech.

In Bethel School District No. 403 v. Fraser, the Supreme Court ruled that a public school could discipline a student for giving a lewd speech at a school assembly. The Court distinguished this case from Tinker by noting that the speech in question was vulgar and offensive to many listeners. This decision supports the idea that schools can prohibit certain forms of expression that are considered indecent or inconsistent with the school's basic educational mission. The case demonstrates that the First Amendment rights of students in public schools are not absolute and can be subject to limitations based on the content and context of the speech.

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
This Supreme Court case is relevant for understanding the extent to which school officials can regulate speech in school-sponsored activities, such as student newspapers.

In Hazelwood School District v. Kuhlmeier, the Supreme Court held that public school officials have the authority to censor school-sponsored student expression, such as articles in a school newspaper, if the censorship is reasonably related to legitimate pedagogical concerns. The case involved a school principal who removed articles from a high school newspaper that he deemed inappropriate. The Court ruled that the school newspaper was not a public forum and that the school had the right to control its content to avoid topics that were unsuitable for younger students or that invaded the privacy of individuals. This decision indicates that student speech in school-sponsored activities can be subject to greater regulation than independent student expression.