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I currently serve as a school counselor in the Bastrop ISD. This legal guide was created so that other counselors and school staff members understand the legal ramifications of their actions as an educator. I chose the topic of Freedom of Expression in school because I feel as though this is a "trending" or "hot" topic in our society. There are many current societal issues that people have strong opinions about and they want those opinions to be heard. The prevalent use of technology and social media adds another complicated layer to this topic.

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1) As stated in Slide 1, this Legal Guide concerning Freedom of Expression is important because it is a trending topic in our society. It is important that educators are aware of the ramifications of Freedom of Expression in the school, both for students and for themselves. Recently, there have been many discussions and new legislation centered around Freedom of Expression in school.

2) An emerging issue related to Freedom of Expression in School involves the use of technology and social media. Just this past summer there was a Supreme Court case concerning a student's Snapchat post and the district punishing her for what she posted. Educators should continue to watch and see how technology and social media impact Freedom of Expression in schools.

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3. Professional Association: National Education Association 

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3. Professional Association: National Education Association 

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Citation:
Maiers, S. (2021, June 23). Supreme Court strikes right balance in student free speech case. National Education Association. https://www.nea.org/about-nea/media-center/press-releases/supreme-court-strikes-right-balance-student-free-speech-case

Link: https://www.nea.org/about-nea/media-center/press-releases/supreme-court-strikes-right-balance-student-free-speech-case
Summary:
On June 23, 2021 the National Education Association (NEA) released this press release concerning The Supreme Court 8-1 opinion in Mahanoy Area School District v. B.L., a case that questioned whether schools can legally punish students for speech on their social media accounts, even outside of school hours and away from school campuses. The NEA "issued a friend-of-the-court-brief arguing that although the students in our public schools enjoy the right to speak and advocate for themselves-particularly when that expression is off campus and online-the ruling could impair the ability of schools and educators to protect students from harassment and bullying."

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WASHINGTON - The Supreme Court today issued an 8-1 opinion in Mahanoy Area School District v. B.L., a case that questioned whether schools can legally punish students for speech on their social media accounts, even outside of school hours and away from school campuses. The 3-milllion member National Education Association friend-of-the-court brief arguing that although the students in our public schools enjoy the right to speak and advocate for themselves - particularly when that expression is off campus and online - the ruling could impair the ability of schools and educators to protect students from harassment and bullying.

"We all want our students - Black and white, Native and newcomer, Hispanic and Asian alike - to attend safe public schools that are free of harassment and bullying. We also believe that students, just like educators, have a right to freedom of speech under the First Amendment. The Supreme Court's decision in Mahanoy strikes the right balance. The court recognized that 'America's public schools are the nurseries of democracy.' And we model that democracy by ensuring that students have a right to speak in an environment that is free of bullying and harassment."

Follow on twitter at @NEAmedia and @BeckyPringle

The National Education Association is the nation's largest professional employee organization, representing more than 3 million elementary and secondary teachers, higher education faculty, education support professionals, school administrators, retired educators, students preparing to become teachers, healthcare workers, and public employees. Learn more at

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Supreme Court strikes right balance in student free speech case | NEA

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WASHINGTON - The Supreme Court today issued an 8-1 opinion in Mahanoy Area School District v. B.L., a case that questioned whether schools can legally punish students for speech on their social media accounts, even outside of school hours and away from school campuses.

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Citation: Superville, D. (2021, June 23). Educators look for guideposts in Supreme Court ruling on student free speech. Education Week. https://www.edweek.org/policy-politics/educators-look-for-guideposts-in-supreme-court-ruling-on-student-free-speech/2021/06
Summary:

Mahanoy Area School District v. B.L. - The Supreme Court's ruling established that a Pennsylvania school district violated a student’s First Amendment rights when it disciplined her for a vulgar Snapchat message after she did not make the varsity cheerleading squad.

The NAESP, the National Association of Secondary School Principals, AASA, the School Superintendents Association, and the National School Boards Association had filed a friend of the court brief in support of the Mahanoy Area School District, asking the court to uphold the district’s actions.

A concern was that districts would lose the ability to regulate all off-campus speech, including those that may include bullying, harassment, and attacks on teachers.

While the court ruled that the Mahanoy school district violated student Brandi Levy’s First Amendment rights, it also recognized that schools have an interest in regulating speech off campus that includes bullying and harassment.

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The education community offered measured responses to the U.S. Supreme Court's ruling Wednesday that a Pennsylvania school district violated a student's First Amendment rights when it disciplined her for a vulgar Snapchat message after she did not make the varsity cheerleading squad.

L. Earl Franks, the executive director of the National Association of Elementary School Principals, said while he respected the court's majority's opinion in the 8-1 decision, he worried that it could establish a precedent for similar cases in which the disruption to the school community is wider than those alleged in the Mahanoy Area School District v. B.L. case.

The justices held that the impact of the student's actions in this case was not enough to satisfy the school's special interests in regulating student speech, including preventing disruption at school.

"The principal ... does not always know what conduct is going to be disruptive," said Franks. While responses are based on a school's code of conduct, they're also "a judgment call," he said.

The NAESP, the National Association of Secondary School Principals, AASA, the School Superintendents Association, and the National School Boards Association had filed a friend of the court brief in support of the Mahanoy Area School District, asking the court to uphold the district's actions.

Daniel Domenech, executive director of the AASA, the School Superintendents Association, was disheartened by the court's ruling that the decision to discipline the student violated her First Amendment rights.

"To make that kind of behavior public, as was done in that particular case, and to say there's nothing the school can do about it-it's disappointing," Domenech said.

But he said the more important issue for the organization was that districts retained the right to take action in cases that included bullying, harassment, or could cause harm to others.

"That's still something that districts can act on," he said.

At the same time, he said school administrators might still be unclear about when they can respond.

"The best we can do is to provide them as much guidance as possible so that before they act, they can assess the chances of whatever they do being upheld or repelled," Domenech said. "But it's definitely far from clear."

Off-campus speech at the center of the debate

One of the main concerns for administrators, based on a previous ruling in the case by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, was that districts would lose the ability to regulate all off-campus speech, including those that may include bullying, harassment, and attacks on teachers.

Franks said he agreed with Justice Clarence Thomas, who filed the lone dissenting opinion in the Supreme Court, that the majority's opinion was too vague to provide guidance for educators on future cases and may have been clouded by the school district's harsh response to the student's actions.

Still, Franks said he is "happy that the majority left open and suggested that educators could take action against some off campus speech," and that it left some of the determination to the judgement and expertise of educational professionals.

Ronn Nozoe, the chief executive director of the National Association of Secondary School Principals, also had mixed responses to the ruling.

"We're glad that the ruling left the door open ... to ensure that school administrators and school leaders retain the right to take action-disciplinary or otherwise-on matters that happen outside of school that threaten or jeopardize the normal and safe operations of school," he said.

But Nozoe also noted that principals have to make decisions quickly in the age of social media, and he thinks the Mahanoy ruling could make it more complicated for school leaders.

"You've got to consider this in real time," he said. "These folks are trying to protect kids and make sure that things don't spiral out of control, because once they get out of control, they become very hard to rein in."

"None of our members are out there to curtail free speech," he said. "In fact, what we are now pushing for is elevating student voice."

Justin Driver, a Yale University law professor who wrote an acclaimed book about student rights cases in the Supreme Court, said he found the majority opinion so narrow in scope as to settle little about regulation of off-campus speech.

"School administrators and teachers and even lower court judges have been in desperate need of guidance in this area, and I'm afraid this opinion provides relatively little," he said.

However, Driver, a supporter of broad First Amendment rights for students, was heartened by some of Breyer's language about schools as "nurseries of democracy" and as promoters of student expression.

"It's been a long time since a Supreme Court [free speech] opinion sounded in that register," he said.

Emily Kirkpatrick, executive director of the National Council of Teachers of English, echoed that last sentiment. The group, which filed a friend of the court brief in support of the student, was worried about administrators having unfettered ability to regulate what students say off campus.

"We are encouraged because the Supreme Court ruled 8-1, very clearly in favor of the student-which means in favor of protecting student voice and freedom of speech, particularly in off-campus environments," Kirkpatrick said.

That's especially important "in this digital age, when students are not only expressing themselves, but also igniting so much important change in their communities," she said.

Where the Supreme Court left things vague and what it emphasized

Martha McCarthy, who teaches education law at Loyola Marymount University's school of education in Los Angeles, also considered the Breyer opinion vague on several points.

"I think school personnel should feel quite relieved" that the high court did not endorse the ruling below by the federal appeals court that restrictions on student speech did not apply categorically to off-campus speech.

But the high court opinion was vague on when schools could regulate off-campus speech in the areas Breyer generally identified, such as threats and bullying.

"It leaves a lot of room for how they are going to define that," McCarthy said. "But leaving precise descriptions to future cases is not very helpful."

While the court ruled that the Mahanoy school district violated student Brandi Levy's First Amendment rights, it also recognized that schools have an interest in regulating speech off campus that includes bullying and harassment.

"We are actually quite pleased with the decision because what we'd asked to court to do was to overturn that part of the appellate court decision that said that schools could not regulate student speech that happened outside of campus," said Francisco Negrón, the general counsel for the National School Boards Association.

The court recognized that "speech, in modern times, happens in a variety of ways," Negrón said. "It's not so much where the speech happens, what matters is the impact or the effect it has on the school setting."

Negrón said the decision will clarify for school administrators when they can act, and will help schools and districts as they adopt policies and practices.

"I think that's significant for schools to understand that mere criticism without disruption or infringement on the rights of others is not enough," Negrón said.

Both Negrón and Fitzpatrick said they think the court provides enough guidance for educators to determine in which situations they can respond.

"When the speech is out of school, the court is going to ask schools to look at the nature of the speech, whether it's having an impact on the school setting, and what kind of speech it is," Negrón said.

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Educators Look for Guideposts in Supreme Court Ruling on Student Free Speech

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The education community offered measured responses to the U.S. Supreme Court's ruling Wednesday that a Pennsylvania school district violated a student's First Amendment rights when it disciplined her for a vulgar Snapchat message after she did not make the varsity cheerleading squad. L.

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Citation: Walsh, M. (2021, June 10) If critical race theory is banned, are teachers protected by the first amendment? Education Week. https://www.edweek.org/policy-politics/does-academic-freedom-shield-teachers-as-states-take-aim-at-critical-race-theory/2021/06
Summary:
Link: https://www.edweek.org/policy-politics/does-academic-freedom-shield-teachers-as-states-take-aim-at-critical-race-theory/2021/06
Summary:

Measures introduced in at least 20 state legislatures to rein in teaching about race and other controversial and "divisive" topics have thrust teachers into uncertainty over what they can discuss in the classroom and whether they would face discipline or other legal consequences if they overstep.

While K-12 teachers retain some protections for their comments on issues of public concern, they don't have much in the way of academic freedom to veer from the curriculum or to infuse their own experiences and views into the classroom.

Teachers and other public school personnel still have first amendment protections for speaking out on matters of public concern outside of their job duties, even when those matters involve the operations of their employer.

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If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment?

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Bills to rein in how race and other controversial topics are taught have thrust K-12 teachers into a thicket of free speech issues.

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Source of Law: Constitutional Law

Citation: U.S. Const. amend I

Link: U.S. Constitution - First Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress

The first amendment of the U.S. constitution outlines freedom of speech. Under this amendment students have the right to express their opinions and ideas without the fear of retaliation. However, there are some stipulations of this concerning students in the school or university setting. Students cannot disrupt the functioning of the school/university or violate school/university policies. Such actions are labeled “disruptive activities.”

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Source of Law: Judicial Law

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

Link: Facts and Case Summary - Tinker v. Des Moines | United States Courts (uscourts.gov)

This extremely influential Supreme Court case concerns free speech in school. The students in this case wore black armbands to protest the Vietnam War. The court determined the arm bands were not disrupting school activities or the rights of others. Essentially, the Supreme Court held that public school students can exercise their first amendment rights and express their opinions at school as long as they are not disruptive in nature.

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Source of Law: Administrative

Citation: Texas State University. (2019). Demonstrations on University Property. UPPS 07.04.07 - Demonstrations on University Property : Policy and Procedure Statements : Texas State University (txstate.edu)

Link: UPPS 07.04.07 - Demonstrations on University Property : Policy and Procedure Statements : Texas State University (txstate.edu)

Texas State University’s Demonstrations on University Property outlines how the institution supports freedom of expression and guidelines and policies for students to follow when on campus. This local policy also provides definitions for the reader and procedures for violations of the policy.

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Source of Law: Statutory Law

Citation: Student Code of Conduct, Tex. Educ. Code § 37.001

Link: EDUCATION CODE CHAPTER 37. DISCIPLINE; LAW AND ORDER (texas.gov)

Per the Texas Education Code, “A person commits an offense if the person, alone or in the concert with others, intentionally engages in the disruptive activity…” The Texas Education Code outlines what is considered a “disruptive activity” on any private or public-school campus.

·       Obstructing or restraining the passage of persons in an exit, entrance, or hallway of a building without the authorization of the administration of the school

·       Seizing control of a building or portion of a building to interfere with an administrative, educational, research, or other authorized activity

·       Preventing or attempting to prevent by force or violence or the threat of force or violence a lawful assembly authorized by the school administration so that a person attempting to participate in the assembly is unable to participate due to the use of force or violence or due to a reasonable fear that force, or violence is likely to occur

·       Disrupting by force or violence or the threat of force or violence a lawful assembly in progress

·       Obstruction or restraining the passage of a person at an exit or entrance to the campus or property or preventing or attempting to prevent by force or violence or by threats of force or violence the ingress or egress of a person to or from the property or campus without the authorization of the school.

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Source of Law: Constitutional Law

Citation: Tex. Const. art. 1, § 8.

Link: THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS

The Texas constitution also protects freedom of speech for citizens of Texas. Texans can freely express their own personal opinions, thoughts, and ideas through speech and press. Section 8 of the Texas Bill of Rights states, “Every person shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the livery of speech or of the press.”

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Citation:
Link: https://www.mtsu.edu/first-amendment/article/973/rights-of-teachers
This website is helpful for educators to learn about court cases regarding educators' first amendment rights in the school setting. The website states that the area of teacher free-speech rights is still evolving, but looking at historical cases provides some guidance.

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In American jurisprudence, public school teachers do not forfeit all of their First Amendment rights to free expression when they accept employment. In 1979, an African-American school teacher in a newly integrated school was fired after complaining privately to a superior about discrimination. The Supreme Court decided that public employees do not forfeit First Amendment protection just because they communicate privately to a superior. In this photo, a grammar school teacher teaches in an integrated class in 1969. (AP Photo, used with permission from the Associated Press)

In American jurisprudence, public school teachers, as public employees, do not forfeit all of their First Amendment rights to free expression when they accept employment. Both in pursuing and in imparting knowledge to others, public school teachers share some of the academic freedoms exercised by their college and university counterparts, albeit with limitations sometimes justified by the immaturity of their students. The courts have ruled on several cases involving teachers' expressive rights.

Pickering established that teachers had First Amendment rights

In Pickering v. Board of Education (1968), the Supreme Court ruled that an Illinois high school science teacher, Marvin Pickering, had a First Amendment right to send a letter to the editor of the local newspaper. Pickering had been dismissed for sending a letter that criticized the school board for its allocations of funds for academics and athletics. In his majority opinion for the Court, Justice Thurgood Marshall agreed that Pickering's First Amendment rights had been violated. He wrote that "the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public."

A year after Pickering the Court reiterated that teachers possess First Amendment rights in Tinker v. Des Moines Independent Community School District (1969). Although Tinker involved student speech, the Court wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

In Givhan v. Western Line Consolidated School District (1979), the U.S. Supreme Court reinstated the First Amendment claim of a public school teacher in Mississippi who had been discharged after complaining to her principal about racial discrimination. The Court explained that a public school teacher does not lose her free speech rights simply because she chose to speak on an issue of public concern to her employer directly rather than to the public at large.

Although Tinker v. Des Moines Independent Community School District (1969) involved student speech, the Court wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." In this 2013 photo, Mary Beth Tinker shows an old photograph of her with her brother John Tinker. When the school suspended the Tinkers for speaking out against the Vietnam War by wearing black armbands to school, they took their free speech case all the way to the U.S. Supreme Court and won. (AP Photo/Manuel Balce Ceneta, used with permission from the Associated Press)

established that schools can regulate school-sponsored speech

Other courts, when evaluating teachers' First Amendment claims, have looked to another case involving student speech as a precedent. In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court ruled that public school officials can regulate school-sponsored student speech as long as there is a legitimate educational purpose for their action.

Several lower courts have also applied Hazelwood to public school teachers for not appropriately monitoring their students' classroom expression. In Lacks v. Ferguson Reorganized School District R-2 (8th Cir. 1998), the U.S. Court of Appeals for the Eighth Circuit ruled that a public school in Missouri could discharge an English teacher for failing to censor her students' written works. Applying Hazelwood, the Eighth Circuit wrote, "A flat prohibition on profanity in the classroom is reasonably related to the legitimate pedagogical concern of promoting generally accepted social standards."

In Miles v. Denver Public Schools (10th Cir. 1991), the Tenth Circuit Court of Appeals applied Hazelwood to conclude that a public school teacher could be disciplined for talking about declining discipline and passing along a rumor about students having sex on a tennis court. "Because of the special characteristics of a classroom environment, in applying Hazelwood instead of Pickering we distinguish between teachers' classroom expression and teachers' expression in other situations that would not reasonably be perceived as school-sponsored," the appeals court explained.

Although the principle of academic freedom usually holds in university settings, the Eleventh Circuit Court of Appeals, in Bishop v. Aronov (11th Cir. 1991), also used the Hazelwood standard when evaluating the First Amendment claim of a university professor arising out of in-class instruction.

In this photo, Tammy Hawkins, editor of the Hazelwood East High School newspaper, Spectrum, holds a copy of the paper in 1988. The school was involved in a case that has been used to evaluate teachers' First Amendment claims. In this case, the Court ruled that public school officials can regulate school-sponsored student speech as long as there is a legitimate educational purpose for their action. Several lower courts have also applied Hazelwood to public school teachers for not appropriately monitoring their students' classroom expression. (AP Photo/James A. Finley, used with permission from the Associated Press)

Public employees no longer retain First Amendment protection for speech as part of their official duties

Teachers asserting a First Amendment violation must now clear an additional hurdle, as a result of the Supreme Court's decision in Garcetti v. Ceballos (2006). In Garcetti the Court ruled that public employees do not retain First Amendment protection for speech as part of their official job duties.

The question remains whether Garcetti should apply in the academic setting, where academic freedom introduces another level of constitutional concern. The majority acknowledged this distinction in stating "there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence." Commentator Karen Daly notes that "Academic freedom is an ill-defined concept, especially when imported from the university campus to secondary and elementary schools." Only time will tell which standard - the Pickering or the Hazelwood standard - will apply to the majority of public school teachers' First Amendment claims and whether Garcetti will have an indelible effect.

Garcetti has been used to limit classroom speech

Several lower courts have applied the U.S. Circuit Court of Appeals ruled in Garcetti ruling broadly to limit teacher classroom speech.For example, the Seventh Brown v. Chicago Bd. of Educ. (7 Cir. 2016) that a public school teacher did not have a First Amendment claim when his principal disciplined him for using the N-word in a well-intentional lecture instructing students about not using racial slurs. Because of Garcetti, "Brown's First Amendment claim fails right out of the gate," the appeals court wrote.

Many teachers have fared poorly in First Amendment lawsuits after being disciplined for social media posts. Many courts show deference to school officials in disciplining teachers for speech deemed inappropriate or likely to cause problems at school.

The area of teacher free-speech rights is still evolving. Lower courts use a variety of standards from cases such as Pickering, Hazelwood, and Garcetti. Supreme Court review would provide much-needed guidance.

. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​

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In American jurisprudence, public school teachers do not forfeit all of their First Amendment rights to free expression when they accept employment. In 1979, an African-American school teacher in a newly integrated school was fired after complaining privately to a superior about discrimination.

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Ethical Code Item:  A.1. f. Respect students’ and families’ values, beliefs, sexual orientation, gender identification/expression and cultural background and exercise great care to avoid imposing personal beliefs or values rooted in one’s religion, culture or ethnicity.
Citation:  American School Counselor Association. (2016). ASCA Ethical Standards for School Counselors. https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf
Link: https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

While counselors do not lose their first amendment rights at the door of the school, this ethical standard outlines why it is vital to use caution when talking to students to avoid imposing personal beliefs or values. Additionally, school counselors must remain respectful of students' and families' values, beliefs, sexual orientation, gender identification/expression and cultural background regardless of their own beliefs/values.

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13. Bulleted list of Recommendations / Best Practices for Compliance

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13. Bulleted list of Recommendations / Best Practices for Compliance

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1.   Read and understand your district's student and employee handbooks/code-of-conducts and any policies concerning Freedom of Expression
2. Educate your students on their rights regarding Freedom of Expression and also of the school's rules/policies. Also educate them on how being a minor in a school setting puts some stimulations on Freedom of Expression.
3. Use discretion when discussing topics with students so that you do not impose your beliefs/values on them or convey any disrespect to their beliefs/values.
3. Do not "friend" or "follow" students on social media
4. Make administration aware when/if you hear of any students being bullied or harassed on social media.
5. Use discretion with who you let see your social media posts (coworkers, superiors).
6. Exercise your Freedom of Speech in a respectable manner and realize that there are consequences (whether good or bad) to our words and actions.