Free Speech 7: Dress Codes

Although public schools must respect students’ constitutional right to freedom of expression, the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit have determined that schools may place certain limits on students' free speech in the school setting. This includes limits on the clothing that students can wear to school. For example, First Amendment free speech may not protect a student who wears items with words, images, or symbols that:

• are vulgar or lewd. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  

• threaten violence. See Elonis v. United States, 575 U. S. 723, 733 (2015).

• promote illegal conduct. See Morse v. Frederick, 551 U.S. 393 (2007).

• are likely to cause serious disruption at school or violate other students’ rights. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734, 735 (8th Cir. 2009).

However, it appears that public school students in the states covered by the U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), are unlikely to receive governmental interference with their hairstyles. 

In Torvik v. Decorah Community School District, two male students appealed a school district regulation requiring all male school students to conform their hairstyle to certain approved standards. See Torvik v. Decorah Cmty. Sch., 453 F.2d 779, 779 (8th Cir. 1972). Finding that the regulation violated the student’s right to free expression, the Eighth Circuit wrote:

    “A regulation governing the hairstyle of students cannot be sustained simply because it is promulgated by school authorities. Tinker v. Des Moines Independent Cmty School Dist., 393 U.S. 503 (1969). This approach would otherwise condone the prohibiting of any recognized constitutional right. Every individual enjoys the liberty to wear the hairstyle he chooses. Before the state can intrude into recognized areas of privacy and freedom there must exist some rational basis to justify paternal control. This court recently found that no rational relation exists between a similar school regulation and the educational goals and processes of school administration.” 

Free Speech 6: Cyberbullying

In 2019, a U.S. District Court in the Eighth Circuit ruled on a case in which a student had been suspended from school for violating the school district’s cyberbullying policy. See A.S. v. Lincoln Cty. R-III Sch. Dist., 429 F. Supp. 3d 659, 669-70 (E.D. Mo. 2019).

In that case, a high school student, A.S., a student who had been bullying C.S., a classmate with depression, created a social media post containing a doctored photograph of C.S., lying in a casket with text referring to C.S.’s funeral and visitation at a funeral home. A.S. shared this with a group of other students and encouraged them to post it on their own social media pages - which they did. The next Monday during class, C.S., upset about another student’s comments about his “death,” put the student in a chokehold. After investigating the incident, the school principal suspended A.S. for ten days for violating the school district's cyberbullying policy. A.S. appealed his suspension.

In its decision, the Court noted that although students don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)), the First Amendment does not protect all speech in the school environment, and school officials may lawfully punish some forms of unprotected student speech (citing S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012) (citing Tinker, 393 U.S. at 513, stating: “conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class, involves substantial disorder, or invades the rights of others is . . . “not immunized by the constitutional guarantee of freedom of speech.”).

The Court further noted that Tinker applies to off-campus student speech where it is "reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting” (citing S.J.W., 696 F.3d at 777 (citing D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. # 60, 647 F.3d 754, 766 (8th Cir. 2011)). On this basis, speech that “actually causes” a substantial disruption to the educational environment is not protected by the First Amendment. Id. at 778.

In deciding the case, the Court concluded that although A.S.’s social media post was created off school grounds, it was purposefully designed to bully and harass another student by generating talk among other students at the high school at A.S.'s invitation and encouragement. Not only had it caused an actual disruption at the school, it was reasonably foreseeable to school administrators that, if left unchecked, the disruption would continue given the effect it already had on C.S., as well as the students who expressed concern for him to teachers and administrators, but also on the students who continued to tease and make comments to C.S. about his death. On this basis, the Court held that A.J.’s off-campus speech was not protected by the First Amendment and that the school district was within its authority to discipline A.S. for his speech.

Free Speech 5: Restrictions on Student Speech on School Grounds

Adam Henerey was a high school student who decided to run for junior class president. Like all the other students seeking to run for student council office, he was required to sign a contract requiring all candidates to agree to obey all school rules, including the requirement that before distribution, all campaign materials had to be approved by the principal or assistant principal.

When the campaign began, Henerey obtained approval from the administration for his campaign slogan, “Adam Henerey, The Safe Choice.” Henerey became aware that as in previous years, the other candidates were handing out gum and candy. On the day of the election, in the school hallways, Henerey handed out condoms with stickers bearing his campaign slogan. Unfortunately, he hadn’t first obtained approval from the administration before he distributed the condoms.

While the ballots were being counted, a student complained to the school principal about Henery handing out condoms. The principal decided that Henerey should be disqualified from the student election for his failure to comply with the rule requiring students to get prior approval before distributing materials. Although Henerey received the majority of the ballots cast in the election, he was not allowed to take office. Henery appealed this decision.

When the U.S. Court of Appeals for the Eighth Circuit reviewed the case, it explained that although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (citing Tinker v. Des Moines Indep. Com. Sch. Dist., 393 U.S. 503, 506 (1969)), the Constitution does not compel “teachers, parents, and elected school officials to surrender control of the American public school system to public school students” (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986)). See Henerey ex rel. Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999).  It further explained that the constitutional rights of public school students "are not automatically coextensive with the rights of adults in other settings and a school need not tolerate speech that is inconsistent with its pedagogical mission, even though the government could not suppress that speech outside of the schoolhouse. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, (1988) (citing Bethel, 478 U.S. at 685). Id. It concluded that courts must analyze First Amendment violations alleged by students “in light of the special characteristics of the school environment” (quoting Hazelwood, 484 U.S. at 266 (quoting Tinker, 393 U.S. 503 at 506). Id. 

The Court upheld the school’s policy, finding that school officials may restrict individual student expression that “is reasonably related to legitimate pedagogical concerns,” carries an implied imprimatur of the school, “would substantially interfere with the work of the school, or impinge upon the rights of other students.”

Free Speech 4: Speech Advocating Illegal Conduct

Question:  Does the First Amendment of the U.S. Constitution protect a public school student from the consequences of wearing a t-shirt featuring an illegal drug or underage drinking to public school or a school-sponsored event?

Answer:  No.

In Morse v. Frederick, a student appealed his school suspension, claiming that his high school had violated his First Amendment right to freedom of expression. Morse v. Frederick, 551 U.S. 393, 396 (2007).

In that case, a school district sponsored an event during school hours at which students and staff could stand in front of the high school, on either side of the street, to watch the Olympic Torch Relay as it passed by the school on its way to the winter games in Salt Lake City, Utah. At the appointed time, students and teachers left their classes and assembled on either side of the street in front of the school. Once outside, teachers and administrators monitored the students' actions.

Frederick, a high school senior, and his friends chose to stand on the side of the street across from the school. As the torchbearers and camera crews approached, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily read by the students on the other side of the street. The school principal crossed the street and directed the students to take down the banner because the banner appeared to advocate illegal drug use in violation of school policy. All but Frederick complied. The banner was confiscated and he was subsequently suspended from school.

On review, the U.S. Supreme Court held that the school officials did not violate the First Amendment by confiscating the banner and suspending Frederick. The Court concluded that the “substantial disruption” rule of Tinker was not the only basis for restricting student speech. Considering the special characteristics of the school environment and the government’s interest in preventing student drug abuse, the Court decided that the school was entitled to take steps to safeguard the students entrusted to their care from speech that could reasonably be regarded as encouraging illegal drug use. Based on this reasoning, courts have given public schools a fair amount of leeway in deciding whether student expression poses a danger to their other students or staff.

Free Speech 3: Indecent, Lewd, or Vulgar Speech on School Grounds

 The U.S. Supreme Court has long recognized that under some circumstances, public school students may be punished for certain forms of expression on campus or at school activities —such as “indecent,” “lewd,” or “vulgar” speech, and that a public school may categorically prohibit vulgar, lewd, indecent or plainly offensive speech that could "undermine the school's basic educational mission. 

Example 1: Speech at a Student Assembly

In 1986, the U.S. Supreme Court issued a landmark decision upholding a school district’s right to impose a suspension on a student for delivering a sexually explicit student counsel nominating speech at a school assembly. The Court said that the school was entitled to dissociate itself from the speech to demonstrate that vulgarity was inconsistent with the fundamental values of public school education. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 685 (1986).

Example 2: Distributing an Off-Campus “Underground” Newspaper

In 1987, the U.S. Court of Appeals for the Eighth Circuit ruled in a case that raised questions about whether the First Amendment allows public school authorities to have a policy regarding distribution of written materials prepared by students or others, prohibiting such materials or requiring school authority pre-approval of materials before distribution. See Bystrom v. Fridley High Sch., Indep. Sch. Dist. No. 14, 822 F.2d 747, 753 (8th Cir. 1987). In that case, the Eighth Circuit held that school officials may regulate expression that materially and substantially interferes with the requirements of appropriate discipline in the operation of the school or collides with the rights of others. They also found it appropriate for schools to impose sanctions to make the point to pupils that vulgar speech and lewd conduct are wholly inconsistent with the "fundamental values" of public school education. Id. 

Example 3: Nude Photos Displayed on and Forwarded from a Cell Phone

In 2015, the Iowa Department of Education upheld a school district’s suspension of a junior high school student who during the school day was displaying and forwarding to other students nude photos, some of which were of female students in the district. See 27 D.o.E. App. Dec. 626. The nature of the photos was such that the student could have been criminally charged in state court with disseminating obscene material to minors, sexually exploiting minors, or in federal court with possession and dissemination of child pornography. The First Amendment didn’t protect the student’s expression or prohibit the punishment imposed by the school district because, among other things, that “expression” led to a material and substantial disruption to the school environment and presented a threat to the health and safety of students on the school premises. 

Free Speech 2: Threats of Violence

In the past year, several parents have called to ask whether the First Amendment allows public schools to suspend or expel their children (with and without IEPs) for making written, oral, or online threats of violence toward their school building, other students, and school personnel.

The answer is YES.  

It is long-established in law that the Constitution doesn’t protect “true threats of violence.” See Virginia v. Black, 538 U.S. 343, 359-360 (2003). The use of the word “true” differentiates between silly jests and hyperbole that don’t communicate a real possibility that violence will follow (e.g., “I’ll just kill you if you don’t bring your applesauce cake.”) and serious expressions that convey the message that the speaker intends to commit an act of unlawful violence. There are good reasons for this rule - threats inflict harm, have little or no social value, and may cause serious emotional stress for the person threatened and those who care about the person.

In 2015, the U.S. Supreme Court wrote that whether a threat is a “true threat” doesn’t depend on the mental state of the person who made it, but on what the statement conveys to the person who receives it. Elonis v. United States, 575 U. S. 723, 733 (2015). In 2023, the U.S. Supreme Court addressed the question: “Where is the line between true threats of violence that are punishable as crimes and free speech protected by the First Amendment? By a 7-2 majority, the Court decided that (1) true threats are not free speech if the person who made them recklessly disregarded a substantial risk that they would be viewed as threatening violence, and (2) whether the threat subjects the receiver to the fear of violence and to the kinds of disruption that fear engenders. See Counterman v. Colorado, 600 U.S. 66 (2023).

In D.J.M. v. Hannibal Public School District #60, the Eighth Circuit applied the Tinker "substantial disruption standard" (see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)) to off-campus student speech where it is reasonably foreseeable that the speech will reach the school community and cause a substantial disruption to the educational setting. 647 F.3d 754, 766 (8th Cir. 2011). In that case, while at home, the student, D.J.M. sent instant messages to a school friend, threatening to obtain a gun and shoot students at his school. D.J.M.'s friend reported the instant messages to the school principal, and D.J.M. was suspended. The Eighth Circuit upheld the school's action, finding that D.J.M.'s speech was not protected by the First Amendment because it was "reasonably foreseeable" that it "would be brought to the attention of school authorities and create a risk of substantial disruption within the school environment," and his speech actually caused substantial disruption. See 647 F.3d 754, 766 (8th Cir. 2011).

For an Iowa case in point, we need look no further than a 2021 decision of the Iowa Department of Education that upheld a school board’s expulsion of a student with an IEP who sent out a Snapchat message stating that he was going to shoot up the school. 30 D.o.E. App. Dec. 074. The receiver forwarded it to other students who continued to pass it on. When a parent was shown the message, the parent forwarded it to the local police chief. The police chief forwarded the message to the school superintendent and to the original sender’s mother. Although the school sent out a public statement that there was no threat and school was not canceled, 86 students were absent the next day.

Free Speech 1: Public Schools and First Amendment Free Expression

[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.