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My professional perspective is as a campus principal in a K-12 setting. This padlet will serve as a legal guide to help educators understand student rights as it pertains to freedom of speech and expression. Educators will know what they can and cannot do in response to students who would like to utilize this freedom.

I chose this topic because educators have a direct impact in the molding of society's future. As an educator, we are responsible for creating and designing instruction that is culturally responsive. In recent years, there are some challenging discussions taking place in our current state. Students need assistance in how to appropriately express themselves as they are emerging to formulate their own opinions. I, as administrator, must understand what the freedom of speech explicitly entails and what the legal implications are.

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America is founded upon the ideas and principles of freedom. With that comes great responsibility, students must learn to express themselves in a safe and healthy way. Educators are the agents used to facilitate this process. We have the responsibility to ensure our students are effective citizens as they are the future. As the world is constantly changing, students are consistently observing and forming opinions based on these observations. Many have different social and cultural roots that impact their philosophy. It is important that educators empower students to express themselves in an appropriate manner. Educators must maintain order and control while also allowing students' voice to be heard.

For example, many students have become engaged in the Black Lives Matter (BLM) movement. This issue has many political connotations. It is important students are educated and well informed not only about the content, but what certain forms of expression are permissible and what forms have legal ramifications such as violent rioting.

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Slide #3: American Association of School Administrators Professional Association

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Slide #3: American Association of School Administrators Professional Association

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Colby M. May (2006), an attorney, wrote an article titled, "Religion's Legal Place in the Schoolhouse." This article provides educators with an insight of how to handle religious expression of students in schools. He starts by stating there is a difference in student religious expression and school personnel supporting certain religions. As such, students have certain rights that are different than campus staff members. Employees may religiously speak in private as established by the Free Exercise Clause; however, they must not speak about this in the public forum they work in such as a school, which is founded by the Establishment Clause. Schools can only prevent student religious expression if it is harassing and disruptive to the learning environment. Likewise, schools can teach about religious aspects as long as educators stick adhere to the facts and there is not utterance of encouraging and discouraging of certain religions. Educators can expound on these ideas further if students have questions as long as discussion remain academic in nature. Evolution may be taught. However, teachers must read a disclaimer before introducing the material. Students may discuss religion on campus and hand out religious materials as long as this is not deemed harassing and does not disturb the function of the school. Furthermore, campus leaders can establish preferable times in which students can perform such tasks.

May, C.M. (2006). Religions place in the schoolhouse. The School Administrator 63(9). https://www.aasa.org/SchoolAdministratorArticle.aspx?id=7730

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Among the many issues that public school leaders and teachers often deal with is the proper role of religious belief and practice within their schools.

The law regarding how the First Amendment of the U.S. Constitution applies to the public school context can often seem complex and confusing, with some cases holding that a school improperly endorsed a religious viewpoint and others stating that a school improperly censored religious expression occurring on campus.

As an attorney with a conservative organization that works to protect religious and constitutional freedoms, I often am asked to address some of the most common questions and misconceptions regarding religious expression in the public schools. While we are involved in various school-related situations, one general theme seems to arise regularly - the vital distinction between student religious expression on campus and school officials' endorsement of a religious viewpoint.

Keeping this division in mind while addressing particular issues involving religion should help public school leaders, teachers, parents and even students to make sense of this area of law.

Constitutional Backing
The First Amendment provides the backdrop for the relationship between religious practice and government conduct. As part of the Bill of Rights, it was designed to ensure that the government would not infringe upon certain inalienable rights of private citizens.

Over the years, the U.S. Supreme Court has emphasized how to properly navigate the intersection of the Establishment, Free Exercise and Free Speech clauses of the First Amendment by noting in the landmark 1990 case of Westside Community Board of Education v. Mergens, "There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise clauses protect."

The Supreme Court has held that the First Amendment applies to all federal, state and local government actors, including public schools and their employees. In a landmark 1969 case, Tinker v. Des Moines Independent School District, the court noted: "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

This is why the term "separation of church and state"- which appears nowhere in the Constitution - is a misleading description of what the First Amendment requires. The First Amendment's protection of the religious expression of private individuals, including public school students, neither permits nor requires public school officials to make their schools "religion-free" zones.

In the public school context, the First Amendment dictates official school policies that implicate religion are treated differently than student religious expression. In other words, a school's obligation to ensure it does not violate the Establishment Clause does not affect its independent obligation to uphold the free speech rights of students with regard to religious or other expression.

On the one hand, the ability of public school teachers to speak freely in the classroom is somewhat limited because public school officials can ensure teachers do not violate the Establishment Clause by endorsing a particular religious viewpoint or requiring students to participate in religious activities.

The religious expression of students is private expression fully protected by the First Amendment. A public school may regulate the content of speech when the student's expression is actually sponsored or encouraged by the school. Santa Fe Independent School District v. Doe in 2000 held that school-sponsored prayer at high school football games violated the First Amendment even though it was delivered by a student representing the student body.

As noted in Tinker, school officials also can regulate speech when the expression causes an actual disruption in the school's operation, according to the Tinker case. So long as students conduct themselves in a non-harassing and non-disruptive manner, public schools must allow students to express their religious views on the same terms as they allow other forms of expression.

What's Permissible?
An issue public school administrators and teachers often confront is the appropriate role that religion may play during instructional time in the classroom. There is a key difference between "religious activity" or "religious instruction" in the classroom - that is between instructing students that the tenets of one religion are true and should be followed, which is not permitted, and teaching about religion, such as what members of various religions believe, which is permitted.

The U.S. Department of Education explains it this way in its 2003 guidelines, Religious Expression in Public Schools: "Teachers and school administrators, when acting in those capacities, are representatives of the state and are prohibited by the Establishment Clause from soliciting or encouraging religious activity, and from participating in such activity with students. Teachers and administrators also are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging anti-religious activity."

While the guidelines forbid public school teachers from engaging in religious activity in the classroom, they affirm the Establishment Clause does not mean that religion is strictly forbidden from public schools in all aspects. In Stone v. Graham in 1980, the Supreme Court stated that the matter before it was "not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."

In other words, the Bible, Koran and other religious texts may be studied or otherwise used in public schools for their literary, poetic or historical aspects, but schools cannot teach that the religious tenets of these texts are true or false. In this regard, the guidelines state: "Public schools may not provide religious instruction, but they may teach about religion, including the Bible or other scripture: the history of religion, comparative religion, the Bible (or other scripture) as literature and the role of religion in the history of the United States and other countries all are permissible public school subjects. Similarly, it is permissible to consider religious influences on art, music, literature and social studies."

Additionally, a federal court ruled in a 2000 case involving a Michigan charter school that teachers may address religious issues in more detail in response to student questions. The bottom line is that religious beliefs and practices may be discussed in the classroom in an academic, non-devotional manner.

Theory of Evolution
The issue of what should be taught in public school science classes considering the origins of life and who should make that decision has again become prominent in the public eye. Although a strong majority of Americans have consistently supported the teaching of the strengths and weaknesses of Darwinian evolutionary theory, as well as its limitations, a Pennsylvania district court last December struck down a public school's requirement that a disclaimer be read in all biology classes before the theory of evolution is discussed.

While some observers proclaimed that this decision means that Darwinian theory now must be placed upon an untouchable pedestal in American science classrooms - regardless of any opposing view held by individual science teachers, parents and state and local school boards -that is simply not the case.

Many school leaders would be surprised to learn that the Supreme Court said the following about evolutionary theory in Edwards v. Aguillard in 1987: "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. . . . [T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction."

In other words, the intent of educators is all-important in considering whether a particular decision relating to evolutionary theory will be upheld by the courts. While the Supreme Court held that a school may teach "a variety of scientific theories about the origins of humankind" if it has the "clear secular intent of enhancing the effectiveness of science instruction," schools may not alter the content of classroom instruction solely for the purpose of supporting or harming a particular religious view. An alleged religious motivation was the primary problem in the Pennsylvania court case.

As confirmed by the federal circuit courts covering California and Illinois, when a teacher's own interpretation of the scientific evidence on this issue conflicts with the official position of the school, the school retains the authority to require that the curriculum is followed. Moreover, a teacher's "incidental references to God and creationism" in response to student questions do not create a constitutional crisis. As a federal district court ruled in 2000 in Daugherty v. Vanguard Charter School Academy, the discussion of alternatives to evolution are not prohibited in a public school class.

Religious Expression
A student's freedom of speech includes the right to discuss religious issues with classmates and to distribute literature, both religious and non-religious, on campus. Student speech is generally considered to be private expression and may only be attributed to the school in rare circumstances. Thus the Establishment Clause does not apply to student expression, and a school cannot prohibit a student from distributing religious literature without violating the First Amendment.

As the Supreme Court stated in the Mergens case, such expression is considered "private speech endorsing religion, which the Free Speech and Free Exercise clauses protect."

The right of students to "evangelize" on campus by sharing their religious views with their classmates is also fully protected. This includes the ability of students to wear clothing conveying a religious message, although special considerations come into play when a school dress code is involved.

Additionally, students have the right to pray individually or collectively on campus. The Supreme Court has acknowledged, in Santa Fe Independent School District v. Doe, that "nothing in the Constitution ... prohibits any public school student from voluntarily praying at any time before, during, or after the school day." Student prayer and other acts of worship during after-school Bible club meetings, such as "See You at the Pole" events during non-instructional times, are constitutionally protected.

Like any right, the ability of students to express their views on campus is subject to reasonable restrictions. Schools may certainly limit the distribution of all forms of literature, including religious literature, to non-instructional times such as before and after classes and during lunch and study hall. They also may prevent students from harassing others who do not want to hear their message and from actually disrupting the operation of the school.

However, it is important to note that regulations of student expression must be content-neutral (except for vulgarity, profanity and the like), and student religious expression cannot be treated differently from other forms of speech. Likewise, while school officials may prohibit expression that actually "materially disrupts classwork or involves substantial disorder or invasion of rights of others," according to the Tinker case, they certainly cannot characterize all religious speech as inherently disruptive. The basic rule is that student religious speech and activity must be treated the same as student non-religious speech and activity.

Religion's Place
The First Amendment's application to religious expression in public schools is not as baffling as it may seem at first glance. The Establishment Clause prevents all governmental actors, including public school officials and teachers, from requiring the participation of citizens (including students) in a religious exercise.

On the other hand, the Free Speech and Free Exercise clauses protect religious and other expression from government intrusion. The key First Amendment principle applicable to public schools is that the Establishment Clause does not require the suppression of student religious expression. In fact, censorship of this nature would itself violate the Free Speech and Establishment clauses. Keeping this principle in mind should aid school leaders in keeping within the requirements of the law.

The tension within the First Amendment between free speech and religious free exercise, versus freedom from religious establishment, is a dynamic area of the law. As such, there are frustrations aplenty for all who work in this area. Public schools are on the front line of that frustration.
Colby May, an attorney, is director of the Washington office of the American Center for Law and Justice, 201 Maryland Ave., N.E., Washington, DC 20002. E-mail: cmmay@aclj-dc.org

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AASA | American Association of School Administrators

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Among the many issues that public school leaders and teachers often deal with is the proper role of religious belief and practice within their schools. The law regarding how the First Amendment of the U.S.

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While Dubzic (2019) presents a somewhat opinionated article, there are many facts in this piece to consider. The Federal Bureau of Investigations created a report in 2017 investigating where hate crimes occur. This report found that 10.5 percent of hate crimes occurred on school campuses. Often, free speech can falter on the lines of bullying. Many students who are vulnerable due to immigration or sexual orientation can experience bullying because of this argument of free speech. With the current political state of the nation, tensions have grown stronger and it appears there has been an increase in this type of behavior recently. Some students have used the slogan "Make America Great Again" to make certain races and genders feel unequal. This type of bullying can be considered as an Adverse Childhood Experience (ACE). This can be associated to chronic health problems exhibited later in life. Therefore, bullying can be deemed as a public health problem. Additionally, students undergoing these problems could lose hope in themselves and become disengaged in their learning. Bearing all this in mind, educators can prevent this problem through bystander intervention training and civic-based learning. Schools can promote positive school climate through instructing students in de-escalation tactics and ensuring every student participates in social clubs to create a sense of unity and community.

Dudzic, B. A. (2019). Blurring the line between free speech and harassment in schools. Peace Review, 31(1), 34–38. https://doi-org.easydb.angelo.edu/10.1080/10402659.2019.1613593

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Angelo State University - Library Online Resources

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Unauthorized use is prohibited; Usage may be subject to security testing and monitoring; Misuse is subject to criminal prosecution; No expectation of privacy except as otherwise provided by applicable privacy laws.

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Alfonso III (2020) investigates free speech in schools in the age of Coronavirus. As many students return to school, they are beginning to voice their opinions about this pandemic. For example, a student at a high school in Dallas, Georgia took a photo of students who were not wearing masks during passing period. The student then posted this photo on Twitter upon dismissal. As a result, the student was suspended for five days. According to the campus administration, this student violated the student code of conduct regarding cell phone and social media policies during the school day as well as student privacy. Michael Hiestand with Student Press Law Center argues that since there is no privacy in a crowded hallway; therefore, there is no violation of student privacy in this scenario. Ultimately, school officials did not follow through with the suspension of this student. This situation brings about discussion about students' rights during this time. While cell phones and social media can cause a disruption during the school day, campus administrators cannot legally regulate what students post on social media after school or off the school premises. Furthermore, students should not be punished for reporting about public health concerns; rather, they should be rewarded. Heistand expounds upon this by stating while the world is everchanging in publication platforms, students should be encouraged to voice their opinions, which is essentially what America was founded upon.

Alfonso III, F. (2020). Free speech experts call on public schools to not penalize students for sharing images of maskless classmates. CNN Wire.

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Angelo State University - Library Online Resources

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Unauthorized use is prohibited; Usage may be subject to security testing and monitoring; Misuse is subject to criminal prosecution; No expectation of privacy except as otherwise provided by applicable privacy laws.

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This law establishes freedom of speech, religion, assembly, and press. Through this, the freedom of expression is enforced. The law explicitly states that Congress shall make no law to infringe on these rights. Likewise, this includes states and local governing bodies aside from the U.S. Congress (U.S. Const. amend. I)

U.S. Const. amend. I.

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In 1965, two students, Mary Beth Tinker and Christopher Eckhardt were suspended for refusing to remove their black armbands as a means of peacefully protesting. These armbands represented opposition to the U.S. military presence in the Vietnam War. It went all the way up to the U.S. Supreme Court. By 1969, in a 7-2 decision it was concluded that schools could not stifle students’ freedom of speech unless it affected daily operations and the function of the school (Tinker v. Des Moines, 1969).

Tinker v. Des Moines, 393 U.S. 503 (1969).

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393 U.S. 503

89 S.Ct. 733

21 L.Ed.2d 731

John F. TINKER and Mary Beth Tinker, Minors, etc., et al., Petitioners,
v.
DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al.

No. 21.

Dan Johnston, Des Moines, Iowa, for petitioners.

Allan A. Herrick, Des Moines, Iowa, for respondents.

Mr. Justice FORTAS delivered the opinion of the Court.

Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired-that is, until after New Year's Day.

I.

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to 'pure speech' which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. 2 See also Pierce v. Society of Sisters, etc., 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 220, 97 L.Ed. 216 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957); Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).

On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.Ct. at 270; Meyer v. Nebraska, supra, 262 U.S. at 402, 43 S.Ct. at 627. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.

II.

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools w re buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol-black armbands worn to exhibit opposition to this Nation's involvement in Vietnam-was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

'In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.'

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. Cf. Hammond v. South Carolina State College, 272 F.Supp. 947 (D.C.S.C.1967) (orderly protest meeting on state college campus); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D.C.M.D.Ala.1967) (expulsion of student editor of college newspaper). In the circumstances of the present case, the prohibition of the silent, passive 'witness of the armbands,' as one of the children called it, is no less offensive to the constitution's guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and re and for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice STEWART, concurring.

Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I cannot share the Court's uncritical assumption that, school discipline aside, the First Amendment rights of children are co-extensive with those of adults. Indeed, I had thought the Court decided otherwise just last Term in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. I continue to hold the view I expressed in that case: '(A) State may permissibly determine that, at least in some precisely delineated areas, a child-like someone in a captive audience-is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.' Id., at 649-650, 88 S.Ct. at 1285-1286 (concurring in result.) Cf. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645.

Mr. Justice WHITE, concurring.

Mr. Justice BLACK, dissenting.

Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose of conveying political ideas is protected by the First Amendment, cf., e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949), the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech-'symbolic' or 'pure'-and whether the courts will allocate to themselves the function of deciding how the pupils' school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleased and when he pleases. This Court has already rejected such a notion. In Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965), for example, the Court clearly stated that the rights of free speech and assembly 'do not mean that everyone with opinions or bbliefs to express may address a group at any public place and at any time.'

The United States District Court refused to hold that the state school order violated the First and Fourteenth Amendments. 258 F.Supp. 971. Holding that the protest was akin to speech, which i protected by the First and Fourteenth Amendments, that court held that the school order was 'reasonable' and hence constitutional. There was at one time a line of cases holding 'reasonableness' as the court saw it to be the test of a 'due process' violation. Two cases upon which the Court today heavily relies for striking down this school order used this test of reasonableness, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923). The opinions in both cases were written by Mr. Justice McReynolds; Mr. Justice Holmes, who opposed this reasonableness test, dissented from the holdings as did Mr. Justice Sutherland. This constitutional test of reasonableness prevailed in this Court for a season. It was this test that brought on President Franklin Roosevelt's well-known Court fight. His proposed legislation did not pass, but the fight left the 'reasonableness' constitutional test dead on the battlefield, so much so that this Court in Ferguson v. Skrupa, 372 U.S. 726, 729, 730, 83 S.Ct. 1028, 1030-1031, 10 L.Ed.2d 93, after a thorough review of the old cases, was able to conclude in 1963:

'There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy.

'The doctrine that prevailed in Lochner (Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937), Coppage (Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441), Adkins (Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785), Burns (Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813), and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded.'

The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they 'shock the conscience' or that they are 'unreasonable,' 'arbitrary,' 'irrational,' 'contrary to fundamental 'decency," or some other flexible term without precise bound-aries. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is resurrecting that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day for the country, I believe, when the present-day Court returns to the McReynolds due process concept. Other cases cited by the Court do not, as implied, follow the McReynolds reasonableness doctrine. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 1179, 87 L.Ed. 1628, clearly rejecting the 'reasonableness' test, held that the Fourteenth Amendment made the First applicable to the States, and that the two forbade a State to compel little schoolchildren to salute the United States flag when they had religious scruples against doing so. 3 Neither Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; nor Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, related to schoolchildren at all, and none of these cases embraced Mr. Justice McReynolds' reasonableness test; and Thornhill, Edwards, and Brown relied on the vagueness of state statutes under scrutiny to hold them unconstitutional. Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, and Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149, cited by the Court as a 'compare,' indicating, I suppose, tha these two cases are no longer the law, were not rested to the slightest extent on the Meyer and Bartels 'reasonableness-due process-McReynolds' constitutional test.

I deny, therefore, that it has been the 'unmistakable holding of this Court for almost 50 years' that 'students' and 'teachers' take with them into the 'schoolhouse gate' constitutional rights to 'freedom of speech or expression.' Even Meyer did not hold that. It makes no reference to 'symbolic speech' at all; what it did was to strike down as 'unreasonable' and therefore unconstitutional a Nebraska law barring the teaching of the German language before the children reached the eighth grade. One can well agree with Mr. Justice Holmes and Mr. Justice Sutherland, as I do, that such a law was no more unreasonable than it would be to bar the teaching of Latin and Greek to pupils who have not reached the eighth grade. In fact, I think the majority's reason for invalidating the Nebraska law was that it did not like it or in legal jargon that it 'shocked the Court's conscience,' 'offended its sense of justice, or' was 'contrary to fundamental concepts of the English-speaking world,' as the Court has sometimes said. See, e.g. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, and Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561. The truth is that a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into a Catholic church or Jewish synagogue. Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete constitutional right to go into those places contrary to their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases. Our Court has decided precisely the opposite. See, e.g., Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed. 149.

In my view, teachers in state-controlled public schools are hired to teach there. Although Mr. Justice McReynolds may have intimated to the contrary in Meyer v. Nebraska, supra, certainly a teacher is not paid to go into school and teach subjects the State does not hire him to teach as a part of its selected curriculum. Nor are public school students sent to the schools at public expense to broadcast political or any other views to educate and inform the public. The original idea of schools, which I do not believe is yet abandoned as worthless or not of date, was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the Nation has outworn the old-fashioned slogan that 'children are to be seen not heard,' but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach.

The true principles on this whole subject were in my judgment spoken by Mr. Justice McKenna for the Court in Waugh v. Mississippi University in 237 U.S. 589, 596-597, 35 S.Ct. 720, 723, 59 L.Ed. 1131. The State had there passed a law barring students from peaceably assembling in Greek letter fraternities and providing that students who joined them could be expelled from school. This law would appear on the surface to run afoul of the First Amendment's freedom of assembly clause. The law was attacked as violate of due process and of the privileges and immunities clause and as a deprivation of property and of liberty, under the Fourteenth Amendment. It was argued that the fraternity made its members more moral, taught discipline, and inspired its members to study harder and to obey better the rules of discipline and order. This Court rejected all the 'fervid' pleas of the fraternities' advocates and decided unanimously against these Fourteenth Amendment arguments. The Court in its next to the last paragraph made this statement which has complete relevance for us today:

'It is said that the fraternity to which complainant belongs is a moral and of itself a disciplinary force. This need not be denied. But whether such membership makes against discipline was for the State of Mississippi to determine. It is to be remembered that the University was established by the state and is under the control of the state, and the enactment of the statute may have been induced by the opinion that membership in the prohibited societies divided the attention of the students and distracted from that singleness of purpose which the State desired to exist in its public educational institutions. It is not for us to entertain conjectures in opposition to the views of the state and annul its regulations upon disputable considerations of their wisdom or necessity.' (Emphasis supplied.)

Mr. Justice HARLAN, dissenting.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below.

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John F. TINKER and Mary Beth Tinker, Minors, etc., et al., Petitioners, v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al.

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393 U.S. 503 89 S.Ct. 733 21 L.Ed.2d 731 John F. TINKER and Mary Beth Tinker, Minors, etc., et al., Petitioners,v.DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al. No. 21. Dan Johnston, Des Moines, Iowa, for petitioners. Allan A. Herrick, Des Moines, Iowa, for respondents. Mr. Justice FORTAS delivered the opinion of the Court.

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Tinker v. Des Moines (1965) was challenged in 1986 when a student used a sexual metaphor during a speech campaigning for a friend in the case Bethel School District v. Fraser (1986). The vice principal had granted him two days of suspension as a result. Fraser appealed this decision all the way up to the Supreme Court, where they upheld the decision of the vice principal. Since the comments were considered obscene, this speech was considered to disrupt the learning environment and school operations. This landmark decision provides educators with boundaries to guide them through situations of student free speech. Both court decisions show what is covered by the first amendment and what is not (Bethel School District No. 403 v. Fraser, 1986).

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).

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Secondary schools receiving federal funds must provide students with an open forum with equal access and fair opportunity to meet. Schools are not allowed to discriminate on these meetings on the basis of religion, political and philosophical views, or any other criteria that is protected through freedom of speech as seen in the first amendment. These groups and clubs include but are not limited to bible studies, gay straight alliances, and secular student alliances. Again, these practices must not disrupt the learning environment and interfere with the function of schools (Equal Access Act, 1984).

Equal Access Act of 1984, 20 U.S.C. § 4071.

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Students in Sweetwater ISD must adhere to the Code of Conduct. This outlines the expectations of students and the disciplinary actions should students violate the code. The code chosen regarding this topic is located under mischievous offenses and serious or persistent misbehavior. These sections both state students who are engaging in actions or demonstrations that interfere with school actions are in violation of the code of conduct (Sweetwater ISD Student Code of Conduct, 2019).

Sweetwater Independent School District. (2020, November 15). Student Code of Conduct. Retrieved from: https://www.sweetwaterisd.net/page/open/640/0/19_20%20SCOC.pdf

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Texas educators must have ethical conduct with all members of the learning community to promote academic freedom. They will do this through exemplifying integrity and good moral character through utilizing equitable treatment with all parties involved. Furthermore, they will promote students to become effective citizens. While this does not directly state that freedom of speech is protected to students, it does clearly state educators will facilitate in students becoming effective citizens. Through this, educators will foster student learning through creating and implementing instruction targeting American principles, such as freedom of speech. Teachers will ensure students are aware of appropriate practice and citizenship through these opportunities (19 TAC § 247.1).

Educators’ Code of Ethics, 19. Tex. Admin. Code § 247.1

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The Educator's Guide to Texas School Law: Ninth Edition (2014) provides insight to ensure best practice is being utilized regarding current legislation. Specific to this topic, chapter 6 addresses expression and associational rights and chapter 7 focuses on religion in school. Both chapters direct campus leaders in the first amendment rights of both students and campus personnel (Walsh et al., 2014).

Walsh, J., Maniotis, L., & Kemerer, F. (2018). The educator's guide to Texas school law: Ninth Edition. University of Texas Press: Texas.

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the educator's guide to texas school law: ninth edition

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administrative law & regulatory practice

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law/administrative law & regulatory practice

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law/administrative law & regulatory practice

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The Educator's Guide to Texas School Law: Ninth Edition

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The Educator's Guide to Texas School Law: Ninth Edition [Walsh, Jim, Maniotis, Laurie, Kemerer, Frank] on Amazon.com. *FREE* shipping on qualifying offers. The Educator's Guide to Texas School Law: Ninth Edition

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The following recommendations would help school administrators in implementing strategic action steps regarding this topic.

Administrators must work diligently to update and communicate expectations and consequences regarding student free speech.

Campus leaders should then consult the school district's education lawyer to ensure these policies adhere to federal and state legislation.

These policies should then be enacted and published in the student handbook and codes of conduct.

At the start of the year, administrators should develop a bystander and bullying identification professional development to ensure these free speech practices are equitable. Additionally, there should be a professional development conducted on differentiating hate speech and free speech.

Schools should create public forums and opportunities for students to voice their opinions in a safe and healthy way.

Prior to this, teachers should discuss principles of free speech, what is appropriate and what is inappropriate, and any legal ramifications these students may face if they conduct themselves in a tactless way.