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My professional perspective comes from one of a teacher in the suburbs of Houston, Texas. I taught two years of 8th grade U.S. History and just completed my thirteenth year of teaching high school World History. I will be starting a new position as a middle school Social Studies instructional coach in the 2022-2023 school year. All three campuses - the previous two and my new campus - have a high number of Economically Disadvantaged students, and are very diverse in culture, religion, and ethnicity/race.

This legal guide is written with middle school and high school teachers in mind, whether their school is diverse or not. This is a topic that I believe all educators should be aware of to both encourage our students to express their thoughts and feelings and guide them in the proper ways of doing so, both in school and in the "real world." There are many avenues that students can use to exercise their right to freedom of expression on campus - protests, petitions, appearance, even membership in after school clubs and organizations. It is important for educators to know how the response of teachers, administrators, and district personnel to the students doing so could possibly infringe on these rights.

I chose the topic of freedom of expression on campus for my legal and ethical guide because it is something that should have a place in an educational setting; perhaps that is the Social Studies teacher in me. Freedom of expression is important for a young person's growth, and when students are aware of their rights and the implication of the execution of those rights, I believe it empowers them as citizens of the world.

Middle school, and especially high school, is when students begin forming strong opinions about the world, and their identity in it is becoming more firmly established. Freedom of expression is an inherent right and it is important that students know what it means and understand what it looks like, and educators must be aware of how to appropriately encourage and permit students in exercising their rights.

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Mrs. Bell (name changed for privacy) is a high school counselor. Mrs. Bell said that court cases and their decisions absolutely impact her work. The campus and district look to court cases for guidance to ensure policies are in legal compliance. Each school year, administrators, counselors, and other school and district leaders attend a session with the district counsel over current legal issues and how they relate to education. The past few years have included topics on freedom of expression as it relates to standing for the pledge, schools and gender identity, political propaganda, etc. The principal also provides updates on current issues within the district throughout the year.

Mrs. Bell believes the right to freedom of expression is important in education because it provides students with a safe place to express their beliefs and a forum to learn appropriate behaviors and how to interact with people who have differing viewpoints. As a counselor, Mrs. Bell meets with students who are defining their personalities and beliefs. The ability to express themselves and form opinions and beliefs on different subject matters and interact with students with similar (or opposing) viewpoints is crucial. Mrs. Bell also occasionally helps students form clubs around a controversial topic.

She believes that counselors and administrators have to balance students’ rights to express their views with the purpose of school. Students have a right to express themselves as long as it does not violate district rules or laws nor interfere with the educational process. Mrs. Bell believes this can be "touchy" when it comes to students expressing controversial views.

Students have, for the most part, a little leniency in how they are able to exercise their right to freedom of expression. Students can most easily express themselves through their clothes, hair, and outward appearance, as long as it does not violate district dress code. Students can also form clubs and organizations, after finding faculty sponsors and getting the club approved by administration. This can be difficult if it is a controversial idea or topic.

Most recently, the school administration and counselors have dealt with instances involving students and gender identity. Many students on campus identify as a different gender, and Mrs. Bell has walked teachers through accepting it and providing the student with appropriate accommodations to express themselves. Mrs. Bell sometimes must mediate between the student and their parents/guardians about the expression of gender identity.

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This resource is informative to the topic of freedom of expression in education because it offers information on what is legal and illegal when it comes to freedom of expression in public schools. It is written by a First Amendment Scholar and provides specific, detailed information with references and links throughout. It lists what both students and administrators can and cannot do.

Citation: Hudson, Jr., D. (Mar 2018). K-12 public school student expression overview. Freedom Forum Institute. https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/k-12-public-school-student-expression/

Link: https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/k-12-public-school-student-expression/

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In the fall of 2019, high school student C.G. was expelled from school after a screenshot of his Snapchat post was circulated among the school community.

The post showed a friend wearing a hat that resembled one worn by foreign military in World War II, with a caption that read "Me and the boys bout [sic] to exterminate the Jews."

C.G. apologized, deleted the post, and submitted a letter to district officials outlining his remorse and time spent educating himself since.

C.G.'s family filed suit against school officials and the district.

Alleged violations of

First Amendment rights to free speech

Fourteenth Amendment rights to due process

In light of the Supreme Court case Mahanoy Area School District v. B.L., the case was reinstated.

Mahanoy Area School District v. B.L. ruled that off-campus speech must create a substantial disruption.

Citation: K-12 Dive Staff. (12 July, 2022). Appeals court reinstates student free-speech suit over antisemitic Snapchat post. K-12 Dive. https://www.k12dive.com/news/appeals-court-reinstates-student-free-speech-suit-over-antisemitic-snapchat/626994/

Link: https://www.k12dive.com/news/appeals-court-reinstates-student-free-speech-suit-over-antisemitic-snapchat/626994/

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Appeals court reinstates student free-speech suit over antisemitic Snapchat post

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Since the case was originally decided, the U.S. Supreme Court had weighed in on the limits of disciplining off-campus speech in a separate suit.

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Florida's governor, Ron DeSantis, signed the Parental Rights in Education bill into law.

It is also known as the "Don't Say Gay" law because it prohibits classroom instruction on sexual orientation or gender identity in K-3.

These topics can be taught in an "age-appropriate" manner for older grades.

Parents are able to sue districts if they believe teachers violate the law.

Equality Florida, a gay rights activist group, is suing DeSantis and the state board of education claiming the law:

harms LBGTQ students and families.

First Amendment right to "received and debate information and ideas concerning sexual orientation and gender identity and their right to freedom of expression" (Pendharkar, 2022).

Fourteenth Amendment rights by violating the equal protection clause because LBGTQ students and family will be treated differently.

DeSantis's office argues that the law does not prohibit student-prompted discussion or teachers answering questions in the classroom, and teachers can express opinions, lifestyles, or advocacy on their own time.

Equality Florida's goal is to have the law repealed.

Citation: Pendharkar, E. (12 Apr, 2022). Is Florida's 'don't say gay law' legal? A new lawsuit argues no. Education Week https://www.edweek.org/policy-politics/is-floridas-dont-say-gay-law-legal-a-new-lawsuit-argues-no/2022/04

Link: https://www.edweek.org/policy-politics/is-floridas-dont-say-gay-law-legal-a-new-lawsuit-argues-no/2022/04

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Gay rights activists are suing Florida Governor Ron DeSantis and the state board of education over the controversial "Don't Say Gay" law, claiming that it harms LGBTQ students and families and violates their freedom of speech and equal protection rights.

DeSantis, a Republican, signed the "Don't Say Gay" bill-officially known as the Parental Rights in Education bill-into law on March 28. It goes into effect July 1, after which teachers will not be allowed to provide classroom instruction on "sexual orientation or gender identity" to K-3 students. For older grades, teachers can teach these topics in an "age-appropriate" manner, according to the law. The state board of education will determine what "age-appropriate" can encompass. Parents will be able to sue districts if they believe that teachers are in violation of the law.

Although the law itself does not make a direct reference to the LGBTQ community or ban the use of the word "gay," Republican lawmakers and DeSantis have publicized their intentions to curb discussions on gender identity-more specifically, students identifying as transgender-and the LGBTQ community through passing this law.

"This lawsuit is a political Hail Mary to undermine parental rights in Florida. Unsurprisingly, many of the parties to this suit are advocacy groups with publicly stated political agendas," said Taryn Fenske, a spokeswoman for DeSantis' office. "We will defend the legality of parents to protect their young children from sexual content in Florida public schools."

Fenske said in a statement that the lawsuit has several erroneous claims, and called the allegation that it violates the First Amendment "baffling."

"The law does not prohibit student-prompted discussion in the classroom," she said. "The law does not prohibit teachers from having opinions, lifestyles, or advocacy in their personal right on their own time, and this law does not prohibit teachers from responding to student questions."

Since the bill was introduced last year, it has been the subject of harsh criticism in Florida and beyond. Florida students protested the bill before it was signed into law, late-night TV show hosts and entertainers called it out for its anti-LGBTQ intent on national television, and, after facing pressure from its employees, Disney spoke out against the law.

President Joe Biden and U.S. Secretary of Education Miguel Cardona have also made their opposition of the law clear. "My Administration will continue to fight for dignity and opportunity for every student and family - in Florida and around the country," Biden said in a tweet last week.

Equality Florida filed the lawsuit against the state because of the harm it is already doing to the LGBTQ community in Florida, said Brandon Wolf, press secretary of the non-profit LGBTQ advocacy organization.

"The law is singularly designed to censor speech about LGBTQ people," he said. "The reality of the language behind how the bill was introduced, how the bill was talked about, by the sponsors, and the language that the governor has used even before he signed it makes it pretty clear that the bill's target is the LGBTQ community."

According to the lawsuit, the law impinges upon students' First Amendment right to receive and debate information and ideas concerning sexual orientation and gender identity and their right to freedom of expression because they can't freely discuss their sexual orientations or gender identities in the classroom under the law.

It also claims that the Parental Rights in Education bill violates students', teachers', and parents' 14th Amendment rights by violating the equal protection clause, because LGBTQ students or families will be treated differently based on their sexual orientation or gender identity.

It also lists several students, teachers, and parents as plaintiffs and explains why the law is harmful to each of them before it has taken effect.

Teachers are worried about what they can or can't teach regarding LGBTQ topics, gender identity, and sexual orientation. Students are concerned their campus groups, such as Gay-Straight Alliances, might soon be banned. And same-sex parents are worried that their children might be bullied and ostracized because of the parents' sexual orientation.

A 17-year-old sophomore who is part of a Gay-Straight Alliance at his school, was told by his GSA advisor that she could potentially lose her job for adjusting pronouns to respect a student's gender identity, the lawsuit said.

The same student said in the lawsuit that in his creative writing class, he wrote about his sexual identity and orientation. After the law was passed, he does not know if he can continue writing about those topics.

Last year, during a discussion on the role of chromosomes in gender identity, the student's biology teacher explained the difference between sex and gender, which he worries may not be possible now. These kinds of curriculum alterations will impact his education negatively, according to the lawsuit.

A middle-school English teacher said she used to assign independent reading to her students and let them choose their own genre or authors. Now she is worried that if she engages with a student who plans to read a book by an LGBTQ author or about LGBTQ characters, she might be disciplined.

The Florida lawsuit is among others that have challenged legislation that restricts the teaching of race and racism across the country. In New Hampshire, Oklahoma, and Arizona, state advocacy groups have sued state departments and governor's offices for passing "critical race theory" laws.

In Arizona, a law was blocked as a result of the lawsuit. The fate of the Oklahoma and New Hampshire laws remains undecided.

Equality Florida is suing in the hope that the law is repealed, Wolf said.

"Our lawmakers instead have chosen to invest all of the taxpayer money and time in fighting these culture war issues that are designed for no other purpose than to help them win elections down the road," he said.

"Our ultimate goal is not only to see this law overturned or repealed, but also to create a culture of accountability for the lawmakers who took the yes vote on it."

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Is Florida's 'Don't Say Gay Law' Legal? A New Lawsuit Argues No

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Gay rights activists are suing Florida Governor Ron DeSantis and the state board of education over the controversial "Don't Say Gay" law, claiming that it harms LGBTQ students and families and violates their freedom of speech and equal protection rights.

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Slide #6: First Amendment of the U.S. Constitution

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Slide #6: First Amendment of the U.S. Constitution

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Source of Law: Constitutional Law

The First Amendment of the Constitution protects people's right to freedom of religion, speech, press, peaceful assembly, and petition for a redress of grievances.

Citation: First Amendment of the U.S. Constitution (U.S. Const. amend. I)

Link: https://www.archives.gov/founding-docs/bill-of-rights-transcript

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Source of Law: Judicial Law

The U.S. Supreme Court, with a 7-2 majority, ruled that that students' and teachers' First Amendment rights still apply on school campuses.

School officials can prohibit a students' freedom of expression if it disrupts the learning environment, not because there is a suspicion of that happening.

Citation: Tinker v. Des Moines School District, 393 US 503 (1969)

Link: https://www.loc.gov/item/usrep393503/

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Slide #8: Texas Education Code Chapter 25, Subchapter E

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Slide #8: Texas Education Code Chapter 25, Subchapter E

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Source of Law: Statutory Law

Chapter 25 focuses on admission, transfer, and attendance.

Subchapter E outlines students rights to expression of religion and religious viewpoints and the policy of limited public forum.

Students are allowed to express religious viewpoints and may not be discriminated against for them (Tex. Educ. Code §25.151).

School districts must adopt a policy that includes a "limited pubic forum for student speakers at all school events at which a student is to publicly speak" (Tex. Educ. Code §25.152).

Students can express their religious beliefs in classwork/assignments (Tex. Educ. Code §25.153).

Students can organize religious groups and activities before, during, and after school (Tex. Educ. Code §25.154).

The freedom of religion and religious expression are protected under the First Amendment of the U.S. Constitution.

Citation: Subchapter E. Student Expression of Religious Viewpoints (Tex. Educ. Code §25.151-25.154)

Link: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.4.htm

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Slide #9: Texas Administrative Code §120.9

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Slide #9: Texas Administrative Code §120.9

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Source of Law: Administrative Law

19 TAC §120.9 is titled "Texas Essential Knowledge and Skills for Positive Character Traits and Personal Skills, Grades 9-12, Adopted 2020"

It outlines positive character traits and personal skills that students should learn, such as:

Good citizenship, in which a described as "student understands how responsible decision making and good citizenship influence one's personal view of society and the local and global community" (19 TAC §120.9).

Includes explaining the impact of personal actions and decision making on the community

An "awareness of self-identity as well as recognize multiple perspectives, differences, diversity, biases, and the social and cultural context in which they live" (19 TAC §120.9).

A student cannot develop the above positive character traits and personal skills without knowledge of and the ability of freely expressing themselves.

Citation: Texas Essential Knowledge and Skills for Positive Character Traits and Personal Skills, Grades 9-12, Adopted 2020 (19 TAC §120.9)

Link: https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=2&ch=120&rl=9

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Slide #10: Local Administrative Law/Policy/Rule

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Slide #10: Local Administrative Law/Policy/Rule

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"Student Publications

1. Student material criticizing school officials or advocating violation of school rules may be prohibited when, in the reasonable judgment of the principal, substantial disruption of normal school operations would likely result.

2. Material encouraging actions that endanger the health or safety of students is prohibited.

3. Student material attacking any individual or group on the basis of gender, race, creed, or religion may be prohibited when, in the reasonable judgment of the principal, substantial disruption of normal school operations would likely result" (Cypress-Fairbanks I.S.D., 2021).

This section of the Cypress-Fairbanks I.S.D. Student Handbook demonstrates the impact of all sources of law. While both positive and negative student publications are allowed (protected by the First Amendment), students are prohibited from publishing anything that would cause a substantial disruption of school operations and/or endanger others' health and safety (similar to Tinker v. Des Moines).

Citation: Cypress-Fairbanks I.S.D. Student Handbook; Student Publications (Cypress-Fairbanks I.S.D., 2021, pg. HB-45)

Link: https://www.cfisd.net/cms/lib/TX50000664/Centricity/Domain/960/2022%20Student%20Handbook.pdf

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Slide #11: Code of Ethics and Standard Practices for Texas Educators

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Slide #11: Code of Ethics and Standard Practices for Texas Educators

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Standard 3.4 "The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, national origin, religion, family status, or sexual orientation" (19 TAC §247.2).

Race, color, gender, disability, national origin, religion, family status, and sexual orientation can all be voluntarily expressed by students, whether through their dress, their speech, their assignments, protests, petitions, etc. A student's right to the freedom of expression are protected by all sources of law, and an educator may not punish nor exclude a student from any activity because he/she does not agree with the students' opinions and beliefs.

Citation: Code of Ethics and Standard Practices for Texas Educators (19 TAC §247.2)

Link: https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=7&ch=247&rl=2

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I now realize how much I unknowingly took advantage of the legal and ethical standards that existed when I was a student. In my district, it was standard to have a student council, various student clubs and organizations centered around ideas and interests, the opportunity to express myself through projects and schoolwork. As a student, I never worried about being able to express my religious beliefs, dress the way I wanted (within the limits of the district dress code), read the books I liked, or play games and music that I enjoyed. Legal and ethical standards such as the First Amendment, Tinker v. Des Moines, Texas Administrative and Education Codes, and the district's Student Handbook afforded me an education where I never really had to worry about what I said or did. I took that for granted as I now realize that many have not and still do not have the same educational experience.

As a high school World History teacher, I became passionate about making sure my students knew they had a voice even if they were not yet of voting age. I encouraged them to follow the news, view all sides of a story, join the civic engagement club on campus (or any club for that matter), make their voices heard through letters, phone calls, organizations, and to vote when they became old enough. As a future administrator, I will continue to encourage students to understand and express their right to the freedom of expression. However, I will also keep the legal and ethical standards in mind as the school setting does change how and when the right can be exercised.

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Slide #13: Recommendations/Best Practices for Compliance

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Slide #13: Recommendations/Best Practices for Compliance

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Some recommendations/best practices for compliance are:

Administrators must be aware of and follow all federal, state, and local laws and regulations. If there is ever a question, before proceeding, administrators should consult the district legal team to ensure compliance.

Students must be allowed the freedom of expression on campus, as long as their actions do not cause disruptions to learning. Administrators should be aware of what is happening and what is said on campus, fully investigate, and take proper precautions before deciding if discipline is necessary.

Students may not be punished for their expressions when off campus, no matter how vulgar or inflammatory they may be, unless it somehow causes disruptions to learning on campus. It is fine for an administrator to be aware or informed of what is said or done in the way of expression by a student off-campus; however, no actions should be taken without fully investigating and taking proper precautions.

Schools and school districts must allow religious groups and organizations to operate in the same manner as secular groups and organizations on campus. Administrators should follow campus procedure regarding the formation and meeting of student groups and organizations.

Administrators should work with all stakeholders through open discussion to make peaceful solutions regarding student's freedom of expression.

Students should be made aware of their right of freedom of expression and what that looks like on campus. They must understand that, while it is protected, there are times when it is prohibited, such as when a significant disruption to learning occurs. Administrators should work with campus leaders and teachers to devise a plan to educate students on the freedom of expression and the law and how to interact with and respond to dissenting opinions.

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Code of Ethics and Standard Practices for Texas Educators (19 TAC §247.2)

Cypress-Fairbanks I.S.D. Student Handbook; Student Publications (Cypress-Fairbanks I.S.D., 2021, pg. HB-45)

First Amendment of the U.S. Constitution (U.S. Const. amend. I)

Hudson, Jr., D. (Mar 2018). K-12 public school student expression overview. Freedom Forum Institute. https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/k-12-public-school-student-expression/

K-12 Dive Staff. (12 July, 2022). Appeals court reinstates student free-speech suit over antisemitic Snapchat post. K-12 Dive. https://www.k12dive.com/news/appeals-court-reinstates-student-free-speech-suit-over-antisemitic-snapchat/626994/

Pendharkar, E. (12 Apr, 2022). Is Florida's 'don't say gay law' legal? A new lawsuit argues no. Education Week https://www.edweek.org/policy-politics/is-floridas-dont-say-gay-law-legal-a-new-lawsuit-argues-no/2022/04

Subchapter E. Student Expression of Religious Viewpoints (Tex. Educ. Code §25.151-25.154)

Texas Essential Knowledge and Skills for Positive Character Traits and Personal Skills, Grades 9-12, Adopted 2020 (19 TAC §120.9)

Tinker v. Des Moines School District., 393 US 503 (1969)