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As a counselor, the topic of student''s freedom of expression in school is rife with misunderstanding and fear in high school educators and administrators' eyes.  As educators, it is important we understand the rights our students have within the First Amendment, as well as the limitations to those rights when on campus.  Whether freedom of expression is in the form of speaking out against a dress code, peacefully assembling for protest, or assembling against perceived wrongs, students do have rights to freedom of expression on campus. As educators, helping students to understand those rights and execute activities within those rights can help to build rapport, trust, and show them first-hand how to use their civic duties for a greater good. As educators, we know there is no stronger way to educate than to engage in hands-on learning. Guiding students through the intricacies of the First Amendment is the most engaging way to aid in student understanding of their fundamental rights as an American citizen and how the knowledge of those rights can bring about thoughtful change.

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Freedom of Expression among students has been a growing topic. Throughout the past few years, there has been a marked increase in secondary students fighting for their First Amendment rights to free speech. It is important for educators and administrators to understand that these students can be supported when choosing to debate against a perceived First Amendment violation. There are correct ways to allow students to engage within the law. This Legal Guide should be used as a helpful document to aid in the understanding of students' rights while following the letter of the law.

One way students have begun to express their Freedom of Speech rights in the past few years is with student walkouts. In February of 2018, while protesting against school shootings, high school students around the country quietly and peacefully walked out of classrooms to gather in a specific location and speak freely about the concerns of the rising numbers of shootings in U.S. schools. This issue was handled delicately and cooperatively in Round Rock ISD with students, parents, and stakeholders cooperating for students to responsibly engage in civic duty. Since then, students have become more active in peaceful protests in order to (in their opinions) be treated more fairly or to be heard. It is important, as educators, that we continue to watch this trend as increasing walkouts do cause interruptions to learning, and can have some severe consequences when not worked cooperatively within a district. Listening to why our students perceive a violation on their freedom of expression will ultimately lead to a less conflicted view between students and the adults at school. Contextually, these walkouts seriously impede on the learning of students as they are not in class. Freedom of expression cannot trump classroom learning.

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The American School Counselor Association (ASCA) offers resources in understanding the legalities of freedom of expression issues in schools. In this particular blog, Daleo (2008) reminds educators of the phase of "youthful rebellion" that occurs as high school students begin to find their voice and independence: they feel strongly about those issues they find compelling and censorship rarely works to solve a problem when an incensed group of students are involved. Counselors are in a special position to understand and mediate teenage emotions in order to clarify communcations between educators, administrators, students, and parents.

Daleo, C.A. (2008). You want to say what?. ASCA School Counselor Blog. Retrieved from https://www.schoolcounselor.org/magazine/blogs/january-february-2008/you-want-to-say-what

Link: https://www.schoolcounselor.org/magazine/blogs/january-february-2008/you-want-to-say-what

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* Today's students seem more focused on freedom of expression and gender/non-gender conforming equality than ever before.
* Students at Clovis United School District peacefully protested after a gender-neutral dress code was voted down at a school board meeting.
* Male students protested rules regarding ear piercing and hair length, while female students protested the policing of clothing deemed "inappropriate" for their bodies.
* Male students wore dresses to schools while female peers wore men's collared shirts.
* School dress codes try to reduce distractions in the classroom but can become overly restrictive.
* Student protests following the rules of the campus while making a point about gender norms have been successful in the past.

Link: https://blogs.edweek.org/edweek/rulesforengagement/2016/02/teen_boys_wear_dresses_to_call_for_changes_to_school_dress_code.html

Blad, E. (2016). Teen boys to wear dresses to call for changes to school dress code. Education Week. Retrieved from https://blogs.edweek.org/edweek/rulesforengagement/2016/02/teen_boys_wear_dresses_to_call_for_changes_to_school_dress_code.html

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* Developmentally, high school students are at an age of individualization and rebellion. They feel strongly and passionately about the topics for which they are willing to fight.
* Allowing students to have a voice within schools can front-load the problem of students feeling their freedom of expression has been violated.
* Empowering students to feel they are protected when speaking up in class allows that voice to be heard.
* Schwartz (2020) gives examples of teachers showing their students' voices can make a difference from Milken Educator Award winners.

Link: https://blogs.edweek.org/teachers/teaching_now/2020/03/how_top_teachers_make_student_voice_a_high_priority.html

Schwartz, S. (2020). How top teachers make students voice a high priority. Education Week Teacher. Retrieved from https://blogs.edweek.org/teachers/teaching_now/2020/03/how_top_teachers_make_student_voice_a_high_priority.html

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Constitutional Law

U.S. Const. amend I

Full text: https://www.law.cornell.edu/constitution/first_amendment

Law and Legal Requirement:

·      Guarantees freedom of expression

·      Prohibits Congress from restricting right to speak freely

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Judicial Law: Tinker v. Des Moines Independent School District

393 US 503 (1969)

Full text: https://www.law.cornell.edu/supremecourt/text/393/503

Law and Legal Requirement:

·      Held that students do not lose their First Amendment rights when on school property

·      In order to justify the suppression of speech, the school must prove that the conduct would “materially and substantially” interfere with the operation of the school

·      Interfering with free speech due to a fear of disruption is not valid

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Statutory Law

3 Tex. Educ. Code § 51.9315 (2019)

Full text: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.51.htm#51.001

Law and Legal Requirement:

·      Guidance on freedom of expression for institutes of higher learning

·      Includes assemblies, protests, speeches, distribution of written material, carrying of signs, and circulating petitions

·      Protects freedom of speech and expression for students

·      Reasonable restrictions can be imposed

·      Must not “materially and substantially” interrupt the learning environment

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Statutory Law

Education Amendments Act of 1972, 20 U.S.C. §1681 - 1688 (2018)

Full text: https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html

Law and Legal Requirement:

·      No discrimination on the basis of sex

·      Protects self-expression in schools

·      Either gender can wear any clothing as long as dress code is followed

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Round Rock ISD Legal Policy

Round Rock Independent School District. (2016). Student expression. Student rights and responsibilities. Retrieved from https://pol.tasb.org/Policy/Download/1245?filename=
FNA(LEGAL).pdf

Full Text: https://pol.tasb.org/Policy/Download/1245?filename=FNA(LEGAL).pdf

Round Rock ISD specifically states the support of its students’ First Amendment rights while on campus, as long as the expression does not “materially and substantially” interfere with the operation of the school. Round Rock ISD spends much time on the idea of religious freedom and inclusivity; all prayer is voluntary, winter décor and greeting must be varied in religion and secularity, and classroom assignments are open for students to express religious beliefs.

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According to ASCA's ethical code,  counselors "are knowledgeable of laws, regulations and policies affecting students and families and strive to protect and inform students and families regarding their rights" (ASCA, 2016, p. 2, § A.1).

It is a responsibility to students to know their rights and be able to instruct students and parents regarding those rights. Counselors have an ethical and legal duty to inform parents and students of their rights and to instruct them of the proper course of action, even in terms of student freedom of expression. When a students' rights are infringed upon, it is a counselor's duty to protect those rights.

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

Link: https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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The topic of freedom of expression in schools is multi-layered and can be difficult to ascertain. Hudson (2018) created an at-a-glance website under the Freedom Forum Institute's umbrella specific to public school students' freedom of expression rights. While the site does offer tidbits regarding landmark Supreme Court cases, its focus is on aiding educators in proper action when handling a perceived freedom of expression violation. Specific topics include: pledge of allegiance, off-campus speech, censorship, and more.

Hudson, D.L. (2018). K-12 public school student expression overview. Freedom Forum Institute. Retrieved from 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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Slide 13: List of Recommendations/ Best Practices

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Slide 13: List of Recommendations/ Best Practices

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* students do not lose constitutional rights when they walk through the school's doors
* unlimited First Amendment rights do not apply to students
* learning is more important in the classroom than freedom of speech
* educators have authority to do jobs without violating freedom expression
* administration cannot limit students' actions to due to a fear of disruption in education
* dress codes should be treated fairly and equally across genders and without bias to gender non-conforming students
*cooperation between the adults and students on campus should be a first step to restoring trust when a perceived First Amendment violation is suggested