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“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

The First Amendment is deeply embedded in the fabric of our country’s existence. Everyday citizens enjoy the protections of the First Amendment, and this enjoyment extends to students in K-12 school districts across the country. However, as of late, application of the First Amendment in schools has been further nuanced by anti-discrimination laws.

Throughout the years, details of the First Amendment’s application in school districts have been defined. For instance, in Bethel School District v. Fraser, the Supreme Court recognized that while student speech is protected, a school district may regulate indecent, lewd, or offensive speech that is “wholly inconsistent with the fundamental values of public education.” Similarly, in Hazelwood v. Kuhlmeier, a school district was permitted to regulate speech contained in a school newspaper that was school sponsored and produced as part of a class.

The Supreme Court held that there was no policy or practice establishing the newspaper as a public forum for student expression. A T-shirt bearing the words “BONG HiTS 4 JESUS” was held to promote illegal drug use in Morse v. Frederick, and, though the shirt was worn off-campus, the suspension of the student did not violate the First Amendment because it was worn during a school-sponsored activity. Conversely and most recently, in Mahanoy v. B.L. (2021), a school district violated a student's First Amendment right when it removed the student from a soccer team for posting a video on her private Snapchat account while off-campus at a store.

The contours of the First Amendment’s application in school districts have been shaped over time. Yet, school districts have still been forced to navigate the sometimes-challenging landscape of students’ First Amendment rights to maintain a school environment focused on educating students. The task is incredible, especially today as social media has become more prevalent and devices permeate school culture. This task is often further complicated by current events that prompt the expression of student viewpoints.

Students have historically aligned on issues related to school gun violence that generate mass viewpoint expression such as student walkouts. The war in Gaza, however, has generated multiple viewpoints among students. School districts face a unique challenge with the student expression of viewpoints in schools on this event, because both First Amendment and anti-discrimination laws are implicated. While some students believe they are entitled to First Amendment protection for expressing their support for Palestinians, expressions are sometimes offensive to Jewish students and have been argued to violate Title VI of the Civil Rights Act of 1964. 

Earlier this year, in February, the Louis D. Brandeis Center for Human Rights under Law and the Anti-Defamation League on behalf of their organizations and parents filed an Office of Civil Rights complaint against California’s Berkeley Unified School District. The organizations claimed the school district engaged in severe and persistent harassment and discrimination against Jewish students when, among other things, the district supported organized student walkouts where students made pro-Palestinian chants. Students also posted flyers on school campuses, articulating their viewpoint on the war.

Conversely, in April, the Arab Student Union of Jackson-Reed High School in Washington, D.C., initiated a lawsuit in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against the District of Columbia, among others. The student group contended that the high school violated their First Amendment rights when it refused to allow a film screening organized by the group that centered on a pro-Palestinian point of view and was highly critical of the Israeli government’s actions toward Palestinians. The school’s response stemmed from the belief that the views depicted in the film would be polarizing and result in division among students. The school further believed the views in the film were critical of people in the school community.

These two matters highlight a quandary for school districts: recognizing student First Amendment rights could lead to a complaint under Title VI and censoring certain student expressions could lead to challenges under the First Amendment. At the center of this conundrum is the need to maintain a harmonious school environment focused on educating students. 

Many of the challenges were brought as the 2023-24 school year was coming to an end. As we enter the new school year, this event lingers and could bring about new challenges. School districts will need to continue to navigate the protection of student expression and viewpoints while ensuring that such expressions and viewpoints do not create a hostile environment for student groups.

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Kenneth M. Walker II (kenneth.walker@austinisd.org) is chair-elect of NSBA's Council of School Attorneys. He is the general counsel of the Austin Independent School District, Austin, Texas.