Schools have the right to limit free speech. But how much should they?
Ellen K. Boegel
America (Jesuit) Magazine
From Halloween costumes to prom dresses, Facebook posts to commencement addresses, school administrators are required to make difficult decisions regarding appropriate limits on free speech and expression. For the educational community, the summer is a good time to review, reflect on and possibly revamp current policies.
Headdresses, tattoos and form-fitting clothing present increasingly complicated challenges for school administrators seeking to balance the values of fun, comfort and fashion with individual and community sensitivities, educational and social propriety, contractual and statutory provisions and, for public educational institutions, constitutional requirements.
As evidenced by the 2015 Yale controversy and the 2016 creepy clown scare, Halloween costumes create problems at all educational levels. In addition to safety concerns regarding weapons and dangerous props or materials, codes of conduct at many schools prohibit “offensive” or “hostile” conduct.
Application of conduct restrictions to one-time occurrences, such as the wearing of an insensitive costume, is problematic. Public and private school students have due process and/or contractual rights (based on student registration and tuition payments) that require clearly articulated dress codes; vague and subjective terms are unenforceable. In addition, public school students enjoy First Amendment rights that protect expressive clothing.
Restrictions on the speech of public college-level students must be “narrowly tailored to serve a significant government interest.” Public secondary and elementary school students are granted less extensive free speech rights. Apparel that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” may be prohibited. Clothing with lewd or sexually explicit messages and those that are viewed as encouraging illegal drug use also may be banned in secondary and elementary schools.
Nevertheless, school administrators should use their authority sparingly lest they become enmeshed in even more disruptive (and expensive) litigation. In Pennsylvania, for example, a middle school’s unconstitutional prohibition of “I ❤ Boobies” cancer awareness bracelets engendered a lawsuit that lasted four years and cost taxpayers close to $400,000 in legal fees.
Gender-conforming clothing requirements at public schools are prohibited by the Equal Protection clause, but reasonable restrictions may be placed on feminine and masculine attire. This means a female student should not be forced to wear a skirt or dress and a male student should not be prohibited from wearing a skirt or dress, but restrictions can be placed on skirt and dress lengths. Dress code restrictions are more common on feminine attire, which has led to the #iammorethanadistraction movement.
Private schools that accept federal funds must abide by Title IX gender discrimination protections, but religious schools with religious objections are exempt. Thus, religious schools can impose gender-specific clothing restrictions but that does not shield them from student discontent and publicized controversy, often involving prom attire.
Legal rights are not self-enforcing; many unlawful codes and enforcement practices persist. Students and parents who object to overly restrictive policies must comply, negotiate or sue. A recent CNN story highlighted the ingenuity of one family who used a marker to disguise their son’s non-complying decoratively shaved hair. School officials who want to avoid conflict and litigation should dispense with judgmental and gender-biased rules and then collaboratively create and uniformly apply standards designed solely to promote safe and effective learning environments.
Public college and university students enjoy full free speech rights. Federal and state anti-harassment laws only may be used to limit public university speech when it is so objectively severe or pervasive that it reasonably can be determined to interfere with another student’s ability to learn.
University officials also may place reasonable time, place and manner restrictions on student speech and may impose additional restrictions on spaces considered limited public fora, such as lecture halls reserved solely for curriculum-related events. Nevertheless, students and student groups with myriad controversial viewpoints must be given equal access to campus facilities. The twice-cancelled appearance by Ann Coulter at the University of California, Berkeley, illustrates the difficulty of meeting these constitutional requirements while protecting the safety of the entire campus community.
The “special characteristics of the school environment” enable secondary and elementary public school administrators to regulate classroom speech and school-sponsored speech to a greater extent than permitted on public college campuses. Most states have anti-bullying laws that promote inclusiveness and prohibit harassment. As with dress codes, non-disciplinary discussions that lead to cooperative compliance are better than banning speech that does not pose a realistic threat or is objectively harmful or disruptive. One public high school teacher learned this lesson the hard way when he lost a lawsuit brought by a student disciplined for stating, “I don’t accept gays because I’m Catholic.”
Private school students are not protected by the First Amendment and are subject to all clearly articulated speech restrictions. Moreover, private schools may prohibit or invite any speaker to a school forum. As was evidenced by student protests during Vice President Mike Pence’s commencement address at the University of Notre Dame, however, freedom from government involvement does not eliminate controversy. Private schools that accept federal funding are subject to civil rights laws and, except when based on religious considerations, may not permit harassment of students based on disability, race, gender, religion or national origin. State anti-bullying laws generally do not apply to private schools.
Social media posts
Out-of-school expression on social media is of growing concern to public and private school administrators. Although the forum is different, the same legal principles apply.
Public universities may impose disciplinary action when restrictions are narrowly tailored to serve a significant government interest. Protecting fellow students from discriminatory or harassing conduct is a significant government interest, but derogatory social media posts may be prohibited only when they amount to an actual threat or objectively impair the educational environment. Posting bomb threats on the internet may be prohibited, but lewd online behavior and off-campus criticism of teachers and principals should be tolerated. Private schools may adopt whatever restrictions are deemed appropriate and clearly communicated to students and parents.
Teachers understand the tremendous risks and benefits of free expression, and administrators understand there is no pleasing some people (parents, students or teachers). The best-reasoned and most clearly written code of conduct will not prevent every controversy nor quell every protest, which, in a free society, should not be the goal. Education, rather than litigation, is the best tool we have to create respectful environments for the free exchange of ideas. Town hall meetings, student-designed codes of conduct, inclusive lesson plans and academic presentations may do more to achieve compliance with reasonable guidelines than threats of discipline.
Making student buy-in a priority does not guarantee unanimity, but it does increase understanding of school policies and defeat claims of ignorance, which is, after all, an important educational goal.