Back to Basics: Student Speech Essentials

Between the escalating conflicts abroad and the United States’ divisive political climate, schools are likely experiencing an increase in political student speech. Before imposing restrictions on this speech, school officials must consider the following student speech essentials.

The U.S. Supreme Court has considered and issued opinions regarding student speech in the following contexts:

1. student speech causing a substantial disruption;
2. vulgar or obscene speech;
3. school-sponsored speech;
4. speech promoting drug use; and
5. off-campus speech.

Other federal courts have also analyzed student speech in the context of true threats.

Substantial Disruption

The U.S. Supreme Court held that schools may regulate on-campus speech if the speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of a school,” or if school officials can “reasonably forecast” that the speech may cause such a disruption. Tinker v Des Moines Indep Sch Dist (1969). The bar for what is considered a “substantial disruption” is quite high. A school may not regulate speech based on a mere belief that a disturbance will occur. Nor may a school regulate speech to avoid the discomfort or unpleasantness that may accompany an unpopular viewpoint.

Vulgar or Obscene Speech

While students do not “shed their constitutional rights to freedom of speech or expression at the school-house gate,” they are not automatically guaranteed the same right to free speech as adults in other settings. The Supreme Court has held that a school may prohibit, and discipline for, student speech that is vulgar, lewd, obscene, and plainly offensive even if no substantial disruption occurs. Bethel Sch Dist v Fraser (1986).

School-Sponsored Speech

School officials may place reasonable restrictions on school-sponsored speech, or speech that individuals might reasonably perceive as endorsed by the school, if the restrictions are “reasonably related to legitimate pedagogical concerns.” Hazelwood Sch Dist v Kuhlmeier (1988). Under this standard, school officials may regulate speech that is inconsistent with the school’s mission. Examples of school-sponsored speech include school publications, such as the school newspaper or student yearbook.

Speech Promoting Drug Use

School officials may regulate student speech on campus or at a school function that can reasonably be perceived as promoting illegal drug use in violation of school policy, even without substantial disruption. Morse v Frederick (2007). In Morse, the Supreme Court upheld the principal’s decision to discipline a student for refusing to take down a banner that read, “Bong Hits 4 Jesus.”

Off-Campus Speech

Before regulating off-campus student speech, school officials should exercise caution. Mahoney Area Sch Dist v B.L. (2021). Although the Supreme Court in Mahoney did not provide a bright-line rule, it did identify examples of off-campus student speech for which school officials may be able to impose discipline, including:

1. serious or severe bullying or harassment targeting particular students;
2. threats directed at teachers or other students;
3. failing to follow rules about lessons, assignments, or technology use; and
4. breaching school security devices.

The Supreme Court also identified three factors that school officials should consider when evaluating whether to issue discipline for off-campus speech:

1. for off-campus speech, the school should rarely stand in loco parentis (i.e., in the place of the parent);
2. courts should be more skeptical of schools regulating off-campus speech, especially off-campus religious or political speech, because regulating off-campus speech would mean all of a student’s speech in a given day can be regulated by the school; and
3. schools have an interest in protecting a student’s unpopular expression, especially when that speech occurs off campus.

True Threat

A school may discipline a student for speech that is determined to be a “true threat.” A “true threat” has been defined by the Supreme Court as “serious expressions conveying that a speaker means to commit an act of unlawful violence.” Virgina v Black (2003). To establish a statement is a “true threat,” the speaker must have had some subjective understanding of the threatening nature of his statement. Specifically, the speaker must have “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Counterman v Colorado (2023). True threats are not protected by the First Amendment.

Evaluating whether student speech constitutes a “true threat” can be difficult and highly fact-specific. When assessing threats, school officials should consider several factors, including the student’s age, discipline history, capability, and credibility; the intended audience; the credibility of witnesses; evidence of specific, plausible details; the speaker’s intent; and whether there are accomplices or recruiting attempts.

Keep in mind that student speech always requires a fact-specific inquiry. Before imposing restrictions or administering discipline, please contact a Thrun attorney for further guidance.