The First Amendment and public schools

Can a high school athlete take a knee during the national anthem? Can teachers participate in off-campus political action? Is student protest protected speech?

We Americans are accustomed to speaking our minds with the expectation that we won’t be arrested or silenced no matter how unpopular our words. While there are a few, narrow limits to the practice — we can’t defame with malice or incite others to violence, for example — it’s no accident that the freedom to speak, publish, worship and assemble appears first among the Constitution’s 27 amendments. The founders recognized that a republic could not survive by suppressing the free exchange of ideas. As George Washington cautioned, “[T]he freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.”

As a taxpayer supported public institution, public schools are bound to honor the amendment’s protections for employees and students. At the same time, public schools have a special responsibility for the care of their young charges, which includes assuring a safe and orderly learning environment. In a school setting, maintaining the latter can at times call for restricting the former if the action is disruptive, dangerous or damaging to other students. A student is free to express a political opinion during class, for example, but not to broadcast it over the PA during schoolwide testing.

Unfortunately, there aren’t always bright lines between student speech that is allowed and speech school leaders are able to suppress. We are witnessing the conundrum play out in real time as high school students across the nation are staging walkouts to call for better gun laws in the wake of the Parkland, Florida mass school shooting. The reaction by school leaders has been varied. Some are instituting disciplinary measures for students who leave campuses. Others have chosen to not interfere with the protest. For now, there is no single, court-tested response.

CPE has its own anecdotal evidence that educators and parents are hungry for guidance on how far First Amendment rights extend inside public schools. In 2006, we asked school law attorney Edwin C. Darden to develop a series of “explainers” on Constitutional rights and schools. Twelve years later, his evergreen essays continue to be relevant and show up among our top-visited pages on CPE’s website. Our colleagues in NSBA’s general counsel’s office now provide even more legal clarity to the question. “Coercion, Conscience, and the First Amendment: A legal guide for public schools on the regulation of student and employee speech”, released earlier this month, answers a lot of educators’ frequently asked questions about where to draw the line between student and employee rights, and providing a productive and safe place for students to learn.

As to the questions that led this blog? According to my legal friends across the hall, the answers are “yes,” “it depends,” and “in general, ‘yes,’ with qualifications.” Check out the guide if you want to know why and how.