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Introduction
This resource guide has been created through the perspective of a Professional School Counselor and is intended to be used as a guide for teachers, counselors, and administrators.
There are groups of traditional teachers and administrators who still want to perpetuate the idea that children have no rights until they turn 18. It is important to our students that we acknowledge, and protect, their constitutional rights.

References

Zhang, S. (2017). Free Speech Drawing. Pepperdine University Graphic.
Pepperdine University. Retrieved from
https://pepperdine-graphic.com/wp-
content/uploads/2017/10/Freespeechbwco-copy-960x500.jpg.

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Interview

I interviewed Mr. Nathan Hindman, who works at Santa Anna Secondary as the Agriculture and Mechanics teacher (as well as the College and Technology Education leader for the district). Here is a link to his teacher website: https://www.santaannaisd.net/2/olc/78

The Importance of Freedom of Expression
When asked about how the issue of freedom of expression impacts his field of education, Mr. Hindman stated that any class that is focused on having students create something is directly affected by the First Amendment. Mr. Hindman teaches seven different classes pertaining to different areas of agriculture and mechanics including classes where the students have to create projects made out of wood, metal, and/or other materials. It is imperative that students feel free to express themselves and be open-minded. I have had to set guidelines for the students to ensure that they can express themselves, while also preserving a safe place for students who disagree with them.

Best Practices
1. Set guidelines that allow the student to express themselves fairly, responsibly, and in a way that won't alienate their peers or disrupt class.
2. Maintain a balanced perspective and enforce expectations equally.
3. Explain the First Amendment to the students, including the fact that rights always come with responsibilities.

Emerging Issues
In recent years, students have become more engaged and interested in the political sphere. This is a blessing and a curse because students should knowledgeable about the world, but unfortunately, they are not always taught to discern between reputable and disreputable sources. Mr. Hindman has had to set limits with students wanting to use current political slogans and imagery in their work, in order to encourage them to use their own creativity instead of regurgitating things they have seen. As some mainstream political voices have become more divisive, we must watch our students to ensure that they do not confuse freedom of expression with freedom to marginalize.

Recent Issue
Last year, Mr. Hindman had an issue with a group of students who wanted to include the slogan "Build the Wall" on one of their projects. When they were told that they could not use that slogan, the students became irate and insisted that because of free speech, they could. Mr. Hindman had to reiterate the guidelines on freedom of expression in his class and explain how some of their classmates could be hurt by their choice. The students tried to say that it was just a joke, or irony, but Mr. Hindman held his ground. The students changed their design to a more appropriate one.

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Press Release: Issue Summary Related to Legislation from the
National Education Association

In June of 2021, the Supreme Court ruled in favor of protecting student's First Amendment right to free speech both on campus, and off campus.
This press release shares a statement from the National Education Association president Beck Pringle which included, "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.” (Maiers, 2021).

References

Maiers, S. (2021, June 22). Supreme Court strikes right balance in student free
speech case. National Education Association. Retrieved from
https://www.nea.org/about-nea/media-
center/pressreleases/supreme-court-strikes-right-balance-student-
free-speech-case.

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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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Current News Article:
U.S. Supreme Court Rules for Cheerleader Who Posted Vulgar Snapchat

Brandi Levy made vulgar Snapchat posts venting her frustration about her high school.

The posts were made outside of school and outside of school hours.

Mahanoy Area High School administrators disciplined her by suspending her from cheerleading for one year.

Levy took her case to court and it ended up at the Supreme Court.

The Supreme Court ruled that the school violated Levy's First Amendment right to free speech.

References

Walsh, M. (2021, June 23). U.S. Supreme Court Rules for Cheerleader Who
Posted Vulgar Snapchat Message. Education Week - Law and Courts.
Retrieved from
https://www.edweek.org/policy-politics/u-s-supreme-court-rules-
for-student-on-regulation-of-off-campus-speech/2021/06

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U.S. Supreme Court Rules for Cheerleader Who Posted Vulgar Snapchat Message

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The decision was 8-1 for a student who’d been disciplined by her school, but the court suggests some off-campus speech may be regulated.

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Current News Article:
Supreme Court Could Determine When and Whether
Schools can Regulate Off-Campus Speech

The Levy v Mahanoy Area High School case is one of the most important cases for the First Amendment in schools in decades.

The case will determine whether schools can discipline students for things they say off-campus.

Schools are currently being advised to avoid taking cases to court involving discipline of students for things that happened off-campus.

References

Modan, N. (2021, April 28). Supreme Court could determine when and whether
schools can regulate off-campus speech. Education Dive.
https://www.k12dive.com/news/supreme-court-could-determine-
when-and-whether-schools-can-regulate-off-cam/599220/.

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Dive Brief:

The U.S. Supreme Court heard arguments Wednesday morning in Mahanoy Area School District v. B.L., a First Amendment case brought to the federal bench after lower courts split on whether a school was within its rights to discipline a student for saying on Snapchat to a select group of peers, "F--- school, f--- softball, f--- cheer,f--- everything," after being rejected from her high school's varsity cheerleading team.

The petitioners in the case , the Mahanoy Area School District, agree schools should teach "how to think, not what to think" and cannot punish students for being critical of or ridiculing school. However, they argued schools should be able to regulate off-campus student speech that impacts school climate, disrupts school activities or interferes with other students' rights, arguing the student's video on social media, which was made on a Saturday when school was out of session, targeted coaches, students and their ability to cheer.

Attorneys representing the student and her parents argued her social media post didn't disrupt school operations, and that a one-time incident was separate from other instances of ongoing online campaigns or virtual harassment disparaging schools. The social media rant resulted in the student's suspension from the cheerleading squad for a year.

Dive Insight:

Mahanoy Area School District v. B.L. has the potential to determine whether schools can discipline off-campus speech, namely speech made on social media. The deciscion could build on the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, which determined public schools can discipline or regulate speech that would disrupt school operations.

"It's the most important student speech case in five decades," said William Zee, an education lawyer who often represents public schools and has experience in similar off-campus speech cases. "I think this is definitely going to guide this issue for the next generation."

The context of remote learning during the coronavirus pandemic adds to the case's urgency, Zee said.

Jason Walta, deputy general counsel for the National Education Association, which filed an amicus brief supporting neither party, said one of two outcomes are likely: The court may decide off-campus speech cannot be regulated by schools in any case, or that off-campus speech may be regulated in some cases where the content is potentially threatening, bullying or harassing.

Until now, Walta said, schools have often deferred to the latter option, which is also largely supported by the lower courts outside of the Third Circuit, in absence of a Supreme Court decision.

However, Zee says that prior to this case, he has had to warn school districts they may lose litigation in instances where schools have tried to regulate students' off-campus speech. "We've been on the wrong side of those arguments," he said.

One of his clients, for example, was steered away from taking legal action after disciplining students who, on Snapchat, made threats against a school that were later found to have been made in jest.

Still, schools have sometimes felt compelled to move forward with legal action. "School districts (are) worried about the message it sends to the school community if they don't address it," Zee said.

In the Wednesday hearing, justices on both sides of the aisle seemed to reject the idea that the content of the student's message in the Mahanoy Area School District case was threatening or caused substantial disruption.

"As a judge - and maybe as a coach and a parent, too - it seems like maybe a bit of an overreaction by the coach," said Justice Brett Kavanaugh, a conservative judge on the right-leaning bench, referring to the decision to suspend the student from the cheerleading squad for a year. "She's competitive, she cares, she blew off steam like millions of other kids have when they're disappointed from being cut from the high school team, or not being in the starting lineup, or not making all-league."

Justice Samuel Alito, who also leans conservative, agreed schools cannot discipline a student for off-campus speech that disrespects or insults the schools.

Justice Stephen Breyer, who leans more liberal, said, "If swearing off-campus did (count as material and substantial disruption), every school in the country would be doing nothing but punishing."

However, National Association of Secondary School Principals CEO Ronn Nozoe and education lawyers who spoke with K-12 Dive said schools should be able to discipline in instances where off-campus speech spills over to the on-campus climate or threatens school safety. "Taking action on these kinds of disruptions falls under the core operation of principals to offer a safe environment that's conducive to learning," Nozoe said.

The Supreme Court is expected to release its decision this summer.

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Supreme Court could determine when and whether schools can regulate off-campus speech

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The U.S. Supreme Court heard arguments Wednesday morning in Mahanoy Area School District v. B.L. , a First Amendment case brought to the federal bench after lower courts split on whether a school was within its rights to discipline a student for saying on Snapchat to a select group of peers, "F--- school, f--- softball, f--- cheer,f--- everything," after being rejected from her high school's varsity cheerleading team.

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Law Related to Freedom of Expression

Source of Law: Constitutional - Federal

The Founding Fathers specifically prohibited the making of any law that infringes on the freedom of the speech. (U.S. Const. amend I).

The law states that Congress cannot create laws that: respect a particular religion, or prevent people from exercising their religious beliefs; take away the freedom of speech or the press; or take away the right of the people to assemble and protest.

Link to Full Text of Law: shorturl.at/emqN0

References

U.S. Const. amend I.

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Law Related to Freedom of Expression

Source of Law: Judicial - State

This case had to do with Gregory Lee Johnson burning an American flag as part of a protest. No one was hurt or threatened, but some witnesses were offended.

Johnson was charged with the desecration of a venerated object.

The U.S. Supreme Court decided that his actions were considered "symbolic speech", which should be protected by the First Amendment.

Justice William Brennan stated "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (Texas v. Johnson, 1989).

Link to Full Text of Law: shorturl.at/qzBN9

References

Texas v. Johnson, 491 U.S. 397 (1989).

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Law Related to Freedom of Expression

Source of Law: Administrative - State

Universities must:

allow anyone to engage in free speech activities on campus.

create disciplinary sanctions for students who interfere with those activities.

create a process for addressing violations.

establish common outdoor areas as public forum and allow any free speech exercise there.

Link to Full Text of Law: shorturl.at/hDL48

References

Campus Free Speech Bill, 86(R) Leg., SB 18 (2019).

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Law Related to Freedom of Expression

Source of Law: Statutory - State

The Texas Education Code describes all of the rights and responsibilities of teachers, administrators, board members, and students.

The code repeatedly reinforces the idea that students have all of the same constitutional rights as adults.

In chapter 37, the Texas Education Code describes disciplinary issues having to do with disruptions of the school day.

In section 123 of chapter 37, it explicitly states that "This section may not be construed to infringe on any right of free speech or expression guaranteed by the constitution of the United States or of this state." (Tex. Edu. Code §37.123).

Link to Full Text of Law: shorturl.at/koCY9

References

Tex. Edu. Code §37.123.

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Local Administrative Law/Policy

The Employee Handbook for Santa Anna Independent School District employees does not explicitly mention freedom of expression, however, it does specify that employees should follow federal and state laws.

Employees should, "recognize and respect the rights of students...[and]...perform their duties in accordance with state and federal law." (Santa Anna Employee Handbook, 2020).

Here is the link to the handbook: shorturl.at/zIQTZ

References

Santa Anna Independent School District. (2020, July 14). Employee Handbook,
Employee Conduct and Welfare, p. 32.

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Ethical Principle

The American School Counselor Association Code of Ethics states in section A.1(g) that counselors should "be knowledgeable of laws, regulations and policies affecting students...and strive to protect and inform students...regarding their rights." (ASCA, 2016).
This means that counselors are obligated to advocate for students and inform them of their rights, which includes their constitutional right to free speech.

Link to the ASCA Code of Ethics Website: shorturl.at/tBF06

References

American School Counselor Association. (2016). ASCA Ethical Standards for School Counselors. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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Personal Connection to the Legal and Ethical Standards

Creating this resource guide has opened my eyes and stirred my heart on the subject of freedom of expression. When it comes to the school counselor Code of Ethics, I was surprised that there was not more about advocating for students' rights. Despite this, I appreciate that most of the statutory and administrative law regarding speech and expression essentially says to follow the laws from the federal or state level.
Because we have freedom of speech, and because teachers, counselors, and administrators are encouraged (or directed) to inform students of their rights, I feel like I should have been more educated on the topic as a student. Luckily, despite not being more educated on my rights, I became politically active as a young person. As a woman who grew up economically disadvantaged, our core freedoms are a type of equalizer. Without these freedoms, I would certainly not be an educated professional.

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Best Practices and Recommendations for Compliance

If this resource guide shows you nothing else, I hope that it stirs a fire in your heart for your students to embrace and utilize their Constitutional rights. Moving forward, I recommend checking your school's policies to see what they say on the topic of free speech. You should work toward compliance with administrators. In addition, we need to encourage and excite our students about their right to free speech. Students should be educated about their rights and encouraged to use them. The following is a bullet list of actions anyone can follow to improve free speech awareness and usage in their schools:

1. Call attention to your school's speech codes if they violate students' rights.
2. Hand out pocket Constitutions
3. Start, or support, your school's student newspaper.
4. Ask to host an event to educate students and families on the importance of free speech.
5. Invite a speaker to come to the school to discuss free speech.
6. Tell students the story about how we came to have freedom of speech.
7. Create a "free speech" wall or other projects that encourage free speech.

References

10 Ways You Can Promote Free Speech On Your Campus. Foundation for
Individual Rights in Education. (n.d.). Retrieved from
https://www.thefire.org/get-involved/student-network/take-
action/10-ways-you-can-promote-free-speech-on-your-campus/.
In the Classroom. (n.d.). The Free Speech Center. Retrieved from
https://mtsu.edu/first-amendment/page/in-the-classroom.
Speech on Campus. American Civil Liberties Union. (n.d.). Retrieved from
https://www.aclu.org/other/speech-campus.