[In response to the number of calls I’ve received from parents whose public school children (with and without IEPs) have been disciplined based on their "expressions," I will be posting several blog articles about circumstances in which students may be subject to school discipline because their speech has crossed the line between protected and unprotected speech.]
Public schools are prohibited by the First Amendment of the U.S. Constitution and Article I, section 7 of the Iowa Constitution from enacting laws abridging the freedom of speech or the press. However, the U.S. Supreme Court has long recognized as applied to public school students, free expression rights are not entirely the same as the rights of adults in other settings because, among other things, public schools have a responsibility to teach students “the boundaries of socially appropriate behavior” and make sure the campus environment is conducive to learning.
What Does the First Amendment Mean by “Speech?”
Although the text of the First Amendment refers to “freedom of speech,” courts have recognized that speech includes many different kinds of on and off-campus expression:
1. spoken and written words, including posts and comments on social media,
2. visual art, film, plays, dance, televised shows, videos, and video games,
3. actions that convey a message (known as “symbolic speech”) such as burning a flag, and
4. wearing items, symbols, and clothing that express an opinion.
Note: The First Amendment also protects the right NOT to speak. For example, in 1943, the U.S. Supreme Court ruled that students may stay silent during the pledge of allegiance. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
Over the years, the U.S. Supreme Court has carved out some exceptions to First Amendment protections. In the next few blog posts, I will examine several U.S. Supreme Court and Eighth Circuit rulings that address the contours of the free expression rights of public school students.
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