Free Speech in Public Schools

As a student, you have the power to make change. Student activists all over the country have been successful in challenging school policies or actions that violate the U.S. Constitution. Schools must balance the need to provide a safe and orderly educational environment against a student’s rights.

A public school education is available to all, free of charge, if you are a resident of Utah and your school district, or if you are over 18 and live in the state of Utah and have not completed high school and your class has not yet graduated. In fact, public high school in Utah is mandatory until the age of 18 with a number of exceptions outlined in the Utah Code.

In school settings, it’s natural to express who you are, what you like, and what you think. You might choose to express yourself by the way you dress, the music you listen to, the websites you create and read, and the politics in which you participate. The First Amendment protects all of these rights, and you do not give them up entirely when you walk through the schoolhouse doors. Schools, however, may limit certain speech and expressions by students as long as the school does so to further strong educational interests, mainly preventing disruptions and promoting safety and order.

Clothes are a form of expression and you are generally free to dress as you would like at school. Just like other forms of expression, however, schools may impose restrictions on how students dress as long as those rules are related to goals such as preventing disruption and promoting order and safety. Disagreement with your school’s dress code alone is not enough reason for a First Amendment challenge. Courts have said that dress codes must balance students’ rights to dress as they wish against a school’s interest in maintaining this safe and orderly environment. If you are concerned that something you wear might get you in trouble, check to see if there is a dress code and if the school actively enforces it. However, even the enforcement of this dress code must be done so equitably without discriminating against one group of students.

School officials cannot ban t-shirts because they do not like the message. However, school boards can ban clothing with “indecent” speech or messages that could cause violence or disruption in school. Many courts have addressed what kinds of t-shirts are permissible in school. For example, generally, a school may not forbid you from wearing apparel that criticizes the President or that contains any other political message because the First Amendment covers political speech, even in school. However, courts agree that a school can make rules limiting speech with vulgar language, sexual innuendo, or messages that promote suicide, drugs, alcohol, or murder.

Under the Equal Access Act, student groups in public high schools may not be denied access to school facilities for meetings if the school allows other “noncurriculum related” groups to meet on school property before or after school. The school may not discriminate against a group based on the religious, political or philosophical nature of its activities. Utah requires that a student have parental consent to join a club and that all clubs have faculty oversight, whether it is a curriculum or non-curriculum group or club.

The Fourth Amendment allows people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The Fourth Amendment’s search and seizure restrictions apply in public schools, but, the Courts give school officials and police more leeway to conduct searches in school. Courts balance a student’s privacy rights against the school’s interest in safety and student discipline. This means that students often have less protection against unreasonable searches and seizures at school, than in other places.

In most circumstances, a search by police requires a search warrant, which is advance written permission from a judge that the police have reasonable grounds to suspect that a crime has been committed. Police then must base their search on probable cause.

Schools are primarily responsible for keeping you safe, and providing you with the best possible education, free from unnecessary disruption. This allows school officials some flexibility to conduct searches of the school and school grounds including the parking lots to ensure their students’ safety. These searches can be based on information supplied by students, school employees, and the police.

Schools should have individualized suspicion before searching a student. Except in very rare circumstances, strip searches of students by school officials are unconstitutional. If a school official searches you without proper suspicion, the courts will weigh your privacy rights, the intrusiveness of the search, and the school’s safety concerns. You have a significant right to privacy regarding your body, and strip searches are highly invasive. In most cases, a school’s suspicion warrants a strip search only if officials are looking for weapons or drugs, since these provide the most risk to the health and safety of students.

The Fourteenth Amendment guarantees “equal protection of the law” to all citizens.This includes students; protecting them from discrimination based on their race, color, nationality, ethnicity, or religion. Discrimination in public schools comes in many forms, and there are just as many different ways to address it. For some types of discrimination, the laws that we at the ACLU use to combat the discrimination are really clear and well-established. For others, the law is constantly changing and our work may be a little trickier. And for still others, there are few or no protections under the law at all.

Freedom of speech does not protect all types of conduct that may be considered speech. Speech that rises to the level of harassment or bullying of other students is not protected and may be restricted and punished. Harassment and bullying are unfortunately common occurrences in schools. Students may experience harassment or bullying for many reasons, such as their appearance, gender, sexual orientation, gender expression, race/ethnicity, disability, religion, or social viewpoints. Harassment and bullying take on many forms, such as name-calling, physical violence, and sexual intimidation and can be carried out by students or school employees towards students or school employees. Bullying and harassment are prohibited by Utah law on school property, at school related or sponsored events, on a school bus, at school bus stops or while traveling to a location or event. Schools have the responsibility to address harassment and bullying to ensure that students have access to an equitable environment where they are able to learn and thrive.

In Utah, it is recognized that every student in public school should have the chance to learn in an environment which is safe, conducive to the learning process, and free from unnecessary disruption. Therefore the school board has adopted conduct and discipline policies which they require each public school to send to students when they enroll. These policies must also be posted in plain view. If any changes are made during the school year those changes must be given to students, as well as posted in the school where everyone can see them.

Directory information can be shared if, for example, the school creates a student phone directory or yearbook. All other information is private and confidential, meaning it cannot be released without your parent’s written consent or, if you are 18 years or older, your own written consent.

The First Amendment guarantees the right to practice (or not practice) the religion of your choice.

Schools can teach about religion in the context of literature, history, or culture, but they cannot favor one religion over another, or, force anyone to believe in, observe, or practice a religion. Nor may schools conduct or promote religious activities, including prayer or religious devotionals. As a student, you do have a right to express religious viewpoints and wear religious symbols, as long as those expressions don’t disrupt school activity. Schools may not show favoritism in what religious expression they allow

Contrary to popular myth, the Supreme Court has never outlawed “prayer in school.” As a student, you are free to pray on your own or in student groups, as long as such prayers are not disruptive and do not infringe upon the rights of others at school. But it can’t be prayer for a captive audience, like at a school assembly, football game or graduation, or to compel other students to participate. School staff cannot be involved in student prayer or it becomes an endorsement by the school and therefore unconstitutional. Public school officials are not allowed to lead students in prayer or Bible-reading sessions. They may not set aside time intended for prayer, even if a student can choose to “opt-out” of the prayer.