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1. Legal Guide on the First Amendment for School Counselors

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1. Legal Guide on the First Amendment for School Counselors

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School counselors are advocates for students in all areas pertaining to education. According to the ASCA standards, counselors "are knowledgeable of laws, regulations and policies affecting students and families and strive to protect and inform students and families regarding their rights."(ASCA, 2016). This includes understanding what First Amendment "free speech rights" mean for students so that we are better able to advocate for all students. It is our duty as counselors to make sure our students are supported and that each student has an opportunity for an equitable education. This is important when collaborating with the administration on issues of diversity and school discipline. When you know and understand students' rights, then you are better able to make a difference (Harris & Tinker, 2018).

References
American School Counseling Association (2016). Ethical standards for school counselors Retrieved March 6, 2021 from https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

Harris, H. & Tinker, M. B. (2018, November 30). Hate speech is showing up in schools. Censorship isn’t the answer. Retrieved March 6, 2021 from https://www.washingtonpost.com/nation/2018/11/30/saluting-nazis-or-kneeling-against-racism-which-students-get-first-amendment-rights/

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Christy Catalano is a school counselor in EANES Independent School District in Austin, Texas. According to Christy, issues with First Amendment "free speech rights" come up frequently in her job at West Ridge Middle School,. In fact, in the past week she dealt with students who had to be disciplined for harassing a student who was wearing a rainbow flag and pride shirt. The question you have to ask yourself about the students when dealing with a First Amendment situation is, "is it [the student's speech] substantially disrupting the school environment or does it invade the rights of others." (Catalano, 2021). If you answer that question with yes, the administration must step in and make sure all policies and procedures are followed correctly. If situations come up where there are questions about the First Amendment, the administration will call the school attorney to get assistance for the more complicated issues.
The school administration and staff are required to remain neutral on hot button topics when working during school hours or at a school function. Teachers occasionally get reprimanded for posting political opinions on social media while at school or wearing certain t-shirts while at a school function. The administration seems to have less freedom of speech while they give students more freedom of speech liberties. In fact, there is a teacher at the school currently who read a book about transgendered parents and may be put on administrative leave because of it.
Recently David's Law has been put into effect, as of September 2017, when a student in San Antonio committed suicide after being cyber bullied. Schools are now required to have a reporting system for bullying in place on school websites. Counselors are required to deliver guidance lessons to students on the topic of bullying in all different forms. This issue has potential to fire up the First Amendment debate because it goes to freedom of expression for students. When is it freedom of expression and when is it bullying?
All staff at West Ridge Middle School are required to take professional development through a company called SafeSchools. The training is updated every year to include current legislation or district specific rules.
Best Practices
~Know the policies and procedures regarding First Amendment Rights at your school district.
~Remember to ask the question "is it substantially disrupting the school environment or does it invade the rights of others?"
~Work with the administration to make sure you know how to handle situations that may come up.

Catalano, Christy, (March 5, 2021) Interview
West Ridge Middle School Bio
https://sites.google.com/eanesisd.net/wrmscounselors/about-us?authuser=0

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Southern Poverty Law Center
Resources on classroom guidance to learn about tolerance. The program is called Learning for Justice and provides resources for educators to teach tolerance and respect for diversity.
https://www.splcenter.org/about
National Coalition Against Censorship
Founded in 1974, this organization is dedicated to working with a variety of entities including teachers and educators on the topic of censorship.
https://ncac.org/resource/first-amendment-in-schools
American Civil Liberties Union
The ACLU has historically stood up for marginalized individuals and fought for rights provided under the United States Constitution. This organization has been involved in more Supreme Court cases than any other private organization. They stand for the rights of all individuals.
https://www.aclu.org/about/aclu-history

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4. Alabama students don’t have due process but they should.(2018)

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4. Alabama students don’t have due process but they should.(2018)

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Due Process in Schools

The US Constitution provides students in public schools have the right to be heard before imposing any discipline action for an offense that occurs at school. Students who are at risk for being suspended have the right to defend themselves in a hearing prior to implementing a disciplinary suspension/expulsion. This was established forty-six years ago with the landmark case Goss v Lopez in which 9 students from Ohio were suspended and denied the opportunity to defend themselves before being expelled. The courts decided the students had been denied their Fourteenth Amendment right to due process. This case established the right to “due process” when a student is being suspended/expelled or excluded from the classroom. However, in 2019 at an Alabama public school, two students were accused of having a gun on campus and were immediately expelled from school with no evidence to support the claim. They were not given an opportunity to defend themselves but instead were expelled immediately. Even after they were acquitted in juvenile court, the Montgomery Public School would not let them come back. The case was taken to court and the students ultimately won. The courts required Montgomery public schools to remove the two students’ suspensions from school records and provide the students with “educational services worth thousands of dollars to make up for the 14 months of lost education.” (Tafelski, 2021).

In this recent case, the Montgomery school district was held liable for the loss of “educational services.”  Students have a right to an education and education is considered property.  According to the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” (U.S. const. amend §1) The Montgomery school district was required to make the students whole by giving them back the education they were deprived of during the time away from school. The law states that all students have a right to due process before any suspension/expulsion is implemented (Tafelski, 2021).

Public schools in the state of Alabama use suspension/expulsion disciplinary practices at a higher rate than other states (Tafelski, 2021). This is particularly important because this type of disciplinary action impacts students of color more than anyone else. Black students in Alabama are 3.7 times more likely to be suspended than their white cohorts (Tafelski,2021). When a student is suspended, it has a negative impact on the learning process and makes the student more susceptible to failing academically and dropping out of school. The consequences of suspending a student can be devastating, thus it is important that students have due process to mitigate the impact of disciplinary actions.

As a future counselor it is important that I advocate for students and help them succeed at school. Counselors should be aware of student rights and issues concerning discipline. However, a counselor should remain a neutral party when it comes to student discipline. Developing relationships with students requires confidentiality and trust and counselors should remain distanced from any issues regarding punishments for students with behavioral problems. A counselor should work at preventing behavioral issues in the first place by implementing programs that address topics important to students and address the needs of the students at school (Benshoff, Poidevant & Cashwell, 1994).

School counselors can also be proactive by collaborating with teachers, administrators and others for a discipline program that is effective for those students who exhibit problem behaviors (Benshoff et al, 1994)

References

Benshoff, J. M., Poidevant, J. M., & Cashwell, C. S. (1994). School discipline programs: Issues and implications for school counselors. Elementary School Guidance and Counseling, 28(3), 163-169.

Tafelski, M. (2021, February 18). Alabama students don’t have due process but they should. Retrieved February 26, 2021 from https://www.al.com/opinion/2021/02/alabama-students-dont-have-due-process-but-they-should.html

U. S. const. amend XVI § 1

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5a. A Cheerleader's Vulgar Message Prompt a First Amendment Showdown

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5a. A Cheerleader's Vulgar Message Prompt a First Amendment Showdown

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The supreme court will decide in January 2021 if they will hear the case of the cheerleader who sent a snapchat to 250 of her friends. The picture contained an image of her and a friend with middle fingers up expressing how upset she was for not making the varsity cheerleading squad. She included disparaging remarks about the school, softball, cheer and other things pertaining to the school. Another student took a screen shot of the snapchat and gave it to a coach who immediately took it to the administration and the junior varsity cheerleader was banned from cheerleading for a year. Subsequently the cheerleader retained lawyers from the ACLU, filed a lawsuit against the school district and won by a landslide in the U. S. Court of Appeals for the Third Circuit in Philadelphia. ACLU lawyers argue that the snapchat occurred off of the school campus and therefore is protected by the First Amendment(Liptak, 2020).

Liptak, A. (2020, December 28). A cheerleader's vulgar message prompt a First Amendment Showdown. The New York TImes. https://www.nytimes.com/2020/12/28/us/supreme-court-schools-free-speech.html

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5b. Teacher Who Was Suspended After She Showed Photo of Her Wife Reaches $100,000 Settlement

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5b. Teacher Who Was Suspended After She Showed Photo of Her Wife Reaches $100,000 Settlement

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A teacher showed her students a slide show that included a photo of her wife and parents complained she was pushing a homosexual agenda. The teacher had worked at the school district for 10 years and had been nominated teacher of the year twice. She was suspended from the school for 8 months. She ended up filing a lawsuit against the district and she was awarded 100,000 to settle the lawsuit. She was not allowed to return to her campus but was reassigned to another high school in the district.
Levenson, M. (2020, February 27). Teacher who was suspended after she showed photo of her wife reaches 100,000 settlement. New York Times.
https://www.nytimes.com/2020/02/27/us/stacy-bailey-mansfield-teacher.html?auth=login-email&login=email

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
https://constitution.congress.gov/constitution/amendment-1/
U.S. Const. Amend. I.

Fourteenth Amendment
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (U.S. const. amend.XIV § 1)
https://constitution.congress.gov/constitution/amendment-14/
U. S. const. amend. XIV § 1

~Students have first amendment rights at school as long as it is not disruptive to the school day (Tinker v. Des Moines, 1969).
~ Student rights issues come up on a daily basis in public schools, the 14th amendment protects student rights and the school administration must consider this when dealing with student issues (Johnson, 2017).

Johson, S.F. (2017, April 20). The fourteenth amendment protects the right to a public education. Concord Law School. Retrieved March 12, 2020 from https://www.concordlawschool.edu/blog/constitutional-law/14th-amendment-protects-rights-education/
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

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7. Judicial Law - Tinker v Des Moines Independent Community School District

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7. Judicial Law - Tinker v Des Moines Independent Community School District

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This was a landmark Supreme Court Decision that declared students and teachers have the right to free speech in public schools unless it is disruptive to the school day.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

https://tile.loc.gov/storage-services/service/ll/usrep/usrep393/usrep393503/usrep393503.pdf

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8. Statutory Law - The Texas Religious Viewpoint Antidiscrimination Act (RVAA)

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8. Statutory Law - The Texas Religious Viewpoint Antidiscrimination Act (RVAA)

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School districts may not discriminate against a student's right to practice individual religious beliefs.

Tex. Educ. Code §§25.151-153.
Tex. Govt. Code §§ 2400.001-.002.
https://www.tasb.org/services/legal-services/tasb-school-law-esource/community/religion-in-the-public-schools/documents/student-religious-expression.pdf

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9. Administrative Law - Texas Administrative Code

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9. Administrative Law - Texas Administrative Code

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The Texas Administrative code determines what teachers are responsible for teaching students in Texas public schools.

Texas Essential Knowledge and Skills for Health Education

b)8f - discuss abstinence from sexual activity as the only method that is 100% effective in preventing pregnancy, STDs, and the sexual transmission of HIV or acquired immune deficiency syndrome and the emotional trauma associated with adolescent sexual activity.
Implications for teachers:
There are certain limits on free speech even though the first amendment says "Congress shall make no law abridging freedom of speech" for instance the Texas Administrative Code rules for the Texas Education Agency sets forth certain curriculum standards that teachers are required to teach. As a teacher you may or may not agree with the Texas Administrative Code but if you work for the school district you follow the curriculum found in the code.

Tex. Admin. Code § 115.32

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10. Local Law- AustinISD Board Policy Manuel

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10. Local Law- AustinISD Board Policy Manuel

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Students Rights and Responsibilities
Student Expression

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11. American School Counseling Association Ethical Standards for School Counselors, 2016    

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11. American School Counseling Association Ethical Standards for School Counselors, 2016    

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According to The ASCA Ethical Standards, counselors: (A1 g.) Are knowledgeable of laws, regulations and policies affecting students and families and strive to protect and inform students and families regarding their rights.

It is important, according to the ASCA Ethical Standards, that we are informed as counselors about student rights. Having an understanding of what the laws say at both the federal and state levels will help a counselor advocate for students in an informed way.

American School Counselor Association (2016). Ethical Standards for School Counselors. Alexandria, VA: Author

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12. Personal Connection to Legal and Ethical Standards

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12. Personal Connection to Legal and Ethical Standards

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As a former science teacher I thought the topic of First Amendment rights was important for students. Students have a right to freedom of expression in the classroom as long as they respectfully interact with one another. This is something students should be working on in school. It is relevant right now in 2021 because there is often no tolerance for differing opinions. Learning to interact  respectfully and sharing different viewpoints should be tolerated and encouraged. As a future school counselor, I hope to encourage students to share their viewpoints respectfully and I hope to help them learn more about the First Amendment. Being knowledgeable about the topic of the First Amendment and freedom of speech enables a counselor to be supportive of students and the issues they face in school.

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13. Best Practices for Compliance for School Counselors

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13. Best Practices for Compliance for School Counselors

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~ The First Amendment applies to students in public schools, unless under certain circumstances the speech significantly disrupts the school day (subject to interpretation) (Tinker v Des Moine).
~ Know the policies pertaining to First Amendment rights at the school district where you work (American School Counselor Association, 2016).
~ Know what your responsibilities are according to the ASCA Ethical Standards (American School Counselor Association, 2016).
~ Support students who want to stand up for a cause as long as it does not disrupt the learning environment (Tinker v Des Moine).
~Teach students to respect one another's opinions by modeling the behavior for them.
~ Give students a safe space for speaking up so they feel heard.

References

American School Counselor Association (2016). Ethical Standards for School Counselors. Alexandria, VA: Author

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)