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The Legal and Ethical guide is coming from a professional perspective of a Professional School Guidance Counselor. The Legal and Ethical guide is tailored to educators, specifically school counselors, to best assist K-12 students. The guide provides resources and highlights students' freedom of speech rights and implications as a student.

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School counselors have a crucial responsibility to students by supporting student development. It is imperative that school counselors are knowledgeable about laws and policies that affect students so their rights are continually protected. School counselors are often prominent figures in discipline guidance so the understanding of legal principles will warrant that decisions can be properly made and potential risk will be reduced. Additionally, counselors can help ensure
staff members receive adequate and reoccurring trainings, necessary resources, and opportunities for educational growth so ethical and legal decisions can be properly made to reduce potential risk and protect the legal rights of students.

Educators should be aware of emerging issues surrounding race, religion, equity, and diversity. There has been an increase in events going on around the country, including school walkouts/protests, that personally affect so many students in a variety of manners. It is important that difficult, diverse conversations are being fostered at schools, students have opportunities to learn the value of their free speech rights, and the personal, social, emotional, and academic development of students are being met. These topics are promoting and encouraging more conversations that exemplify free speech and expression so it is vital, now more than ever, that educators entirely apprehend their rights and students' rights. It is important that educators and students grasp and value their free speech rights so the development of students remains nurtured.

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Citation:
Stone, C., ED.D. (n.d.). Your first amendment rights: limitations and freedoms.
Retrieved from https://www.ascaschoolcounselor-
digital.org/ascaschoolcounselor/january_february_2021/
MobilePagedArticle.action?articleId=1653295#articleId1653295

Link: https://www.ascaschoolcounselor-digital.org/ascaschoolcounselor/january_february_2021/MobilePagedArticle.action?articleId=1653295#articleId1653295

Summary: As a future school counselor, it is imperative that I understand educator and student rights to effectively and appropriately promote diversity. Through the utilization of the ASCA Mindsets & Behaviors, ASCA Ethical Standards, and ASCA position statements, First Amendment rights knowledge and diverse work as a counselor can be successfully fulfilled (Stone, n.d.).

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YOUR FIRST AMENDMENT RIGHTS: LIMITATIONS AND FREEDOMS

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Scenario: You joined the rallying cry in the summer of racial reckoning following the killings of George Floyd, Breonna Taylor and Ahmaud Arbery. This

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Citation:
Walsh, M. (2021, January 8). U.S. supreme court to weigh whether schools may
discipline students for internet speech. Retrieved from
https://www.edweek.org/policy-politics/u-s-supreme-court-to-weigh-
whether-schools-may-discipline-students-for-internet-speech/2021/01

Link: https://www.edweek.org/policy-politics/u-s-supreme-court-to-weigh-whether-schools-may-discipline-students-for-internet-speech/2021/01

Summary:

Pennsylvania school district’s appealed a court ruling that had overturned the discipline of a high school student who had posted a vulgar message on Snapchat about her cheerleading team. The student was disciplined due to foul language and disrespect to coaches and teammates. The student's parents sued the district stating First Amendment rights were violated and that the school's rules were broad and vague (Walsh, 2021).

Students' free speech and expression off campus, specifically on the internet, is questioned when it comes to discipline matters. This matter has become increasingly more popular as schools are utilizing remote learning (Walsh, 2021).

The case is still underway as it is unclear if schools can regulate any type of inappropriate speech that occurs online and off campus, even if it were to disrupt on campus life (Walsh, 2021).

Schools' authority to discipline students for online behavior, due to the new remote learning environment, is still in question and unclear (Walsh, 2021).

The issue whether Tinker v. Des Moines Independent Community School District (1969) could be applied to off campus is a present debate. The U.S. Supreme Court has taken up the case to provide greater clarity to lower courts and schools about regulation of student off campus speech (Walsh, 2021).

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The U.S. Supreme Court late Friday agreed to hear a major case on student speech, granting a Pennsylvania school district's appeal of a lower court ruling that had overturned the discipline of a high school student who posted a vulgar message on Snapchat in a dispute involving her cheerleading team.

The question is one the high court has sidestepped several times in recent years: Whether its landmark 1969 decision in Tinker v. Des Moines Independent Community School District, applies to student speech that occurs off campus, particularly on the internet. The question has become even more urgent as schools have shifted to remote learning because of COVID-19, advocates say.

In Tinker, the court upheld the right of students to wear black armbands to protest the Vietnam War, but allowed room for school administrators to regulate speech that would disrupt the work and discipline of the school. The high court has narrowed student speech rights in a series of cases since Tinker.

The new case, Mahanoy Area School District v. B.L. (No. 20-255), stems from a 2017 incident in which a sophomore, identified as B.L., posted a message on Snapchat one Saturday night that said "F**k school ... f**k cheer f**k everything" after she was placed on the junior varsity cheerleading team instead of the varsity squad.

While "snaps" are self-deleting after a short time, a teammate of the student took a screenshot of her message, and it came to the attention of cheerleading coaches, who said it violated team and school rules to avoid foul language and disrespect for teammates and coaches. B.L. was removed from the JV team for the season, a decision upheld by administrators and the school board.

B.L. and her parents sued the Mahanoy district, alleging that her removal from the team violated the First Amendment free-speech clause and that the school's rules were unconstitutionally overbroad and vague.

"To be sure, B.L.'s snap was crude, rude, and juvenile, just as we might expect of an adolescent," Judge Cheryl Ann Krause wrote for the unanimous 3rd Circuit panel. "But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so."

The panel in the Mahanoy district case last year clarified a key point about discipline for off-campus speech it said was not crystal clear from the earlier 3rd Circuit decisions.

"We hold today that Tinker does not apply to off-campus speech-that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur," the panel said last year.

The panel acknowledged that five other federal appeals courts have ruled that Tinker can be applied to student off-campus speech when there is a sufficient "nexus," or connection, to school.

"This case presents an ideal vehicle for resolving a critically important and acknowledged circuit conflict over whether public K-12 schools may discipline students for any off-campus speech," says the district's brief, filed by veteran Supreme Court litigator Lisa S. Blatt of Washington. "The question presented is all the more important in the Internet age. Students' near-ubiquitous and near-constant access to social media creates ever more avenues for off-campus communications that can rapidly permeate the school environment."

"The 3rd Circuit's stark line between off-campus and on-campus speech is untenable, especially in the age of social media," the brief says. "It is now unclear if schools can regulate, among other things, racist, vulgar, or sexually harassing speech that occurs online and off campus, even if that speech is directed at other students or school administrators, and even if it is otherwise reasonably likely to materially disrupt on-campus life."

Both the district and the school groups argue that the rise of remote learning because of COVID-19 raises new questions about schools' authority to discipline students for online behavior.

"Under the 3rd Circuit's bright-line rule, it is unclear that teachers can discipline students who disrupt the online classroom," the NSBA brief says. "The ongoing shift from the conventional in-person classroom to remote learning has substantially obscured any clear line that may once have existed between on-campus and off-campus student speech."

"In a weekend comment in an evanescent Snapchat message, B.L. swore in expressing her disappointment at not making the varsity team to her friends," the ACLU brief says. "The notion that a school can discipline a student for that kind of spontaneous, non-threatening, non-harassing expression is contrary to our First Amendment tradition, and finds no support in this court's student speech cases."

The Supreme Court granted review of the Mahanoy district's appeal the same day the justices took it up for the first time in their private conference. It was one of a dozen cases the court granted review on Jan. 8 as it approaches the mid-January cutoff point for scheduling arguments for decision this term.

The student speech case could be argued this spring, likely in April, and decided by June, though the court sometimes puts off some cases granted in January until the next term.

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U.S. Supreme Court to Weigh Whether Schools May Discipline Students for Internet Speech

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The U.S. Supreme Court late Friday agreed to hear a major case on student speech, granting a Pennsylvania school district's appeal of a lower court ruling that had overturned the discipline of a high school student who posted a vulgar message on Snapchat in a dispute involving her cheerleading team.

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Citation:
Smarick, A. (2018, November 13). Why schools must safeguard free speech
(opinion). Retrieved from https://www.edweek.org/teaching-
learning/opinion-why-schools-must-safeguard-free-speech/2018/11

Link: https://www.edweek.org/teaching-learning/opinion-why-schools-must-safeguard-free-speech/2018/11

Summary:

K-12 schools have a direct impact of fostering and protecting diverse viewpoints in higher education (Smarick, 2018).

Universities/Colleges and K-12 schools need to work together to ensure free speech and expression is protected (Smarick, 2018).

Creating environments that protect expression, will guide productive, yet challenging discussions. Safe and welcoming environments will allow students who possess differing opinions grow together (Smarick, 2018).

In order to create these environments, students need to be better prepared for the conversations by providing them with the skills to productively engage with each other. Today's students are overprotected, unskilled at debates, and associate words with violence. Students lack an appreciation for the value of free speech/expression (Smarick, 2018).

To allow K-12 schools and Universities/Colleges to work together, colleges should prioritize the beliefs and skills necessary to engage in a community of differing perspectives. If college applications change, the emphasis on K-12 schools ensuring high test scores to appeal to college applications, will regress. K-12 schools need to be able to prioritize different things to ensure students are ready for a diverse world that values free speech and expression (Smarick, 2018).

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The parlous state of civic debate today is making it increasingly clear that America needs to rededicate itself to the beliefs and habits necessary for sustaining a democratic, pluralistic nation. This includes fostering empathy and strenuously condemning language that incites violence, such as the monstrous event in Pittsburgh last month. But it also means protecting the vigorous exchange of divergent, even provocative, views. In recent years, debate has arisen about the state of free speech and free inquiry on college campuses, the training grounds for many of our future leaders. Every new example of safe spaces, trigger warnings, and bias-response teams and each new viral video showing undergraduates disrupting professors or invited speakers raises questions about higher education's commitment to fostering the productive exchange of different views.

What is the role for K-12 education in all of this? Secondary schools are the pipeline for higher education, so America's high schools could-maybe even should -be part of the solution.

Those engaged in the effort to foster and protect viewpoint diversity in higher education, however, have focused on the campuses themselves instead of looking upstream. Outside groups pressure colleges to adopt policies protecting free exchange. The Foundation for Individual Rights in Education (FIRE), which defends First Amendment rights at colleges and universities, publicly reports on campus policies and practices that inhibit discourse. Heterodox Academy (a coalition of 1,800 professors and graduate students), which promotes viewpoint diversity and constructive disagreement, has produced a guide detailing which campuses are best for students seeking exposure to different perspectives.

A number of colleges are, themselves, taking important steps. The University of Chicago issued a 2015 statement declaring its commitment to protecting speech, which several dozen other colleges adopted. Princeton assigned a book about free speech as a pre-read for the incoming class of 2022. Policymakers are not far behind. Multiple states have recently introduced and passed laws protecting expression on public campuses. The education committee of the U.S. House of Representatives held a hearing in September titled, "Examining First Amendment Rights on Campus," and there are proposals to withhold federal research funds from colleges that don't protect free speech.

Such efforts could safeguard debate and thwart the "heckler's veto." The hope is that by creating environments that protect expression, heated but productive discussions will ensue, and students, coming face to face with those holding differing opinions, will grow as a result.

But that forecast may be too sunny. Simply making space for contentious conversation may not be enough because many students are unprepared for contentious conversation. If a campus is stocked with free-speech-hostile students, administrators could suspend those who disrupt a lecture, but other equally indignant students could disrupt the next one. Administrators might be prohibited from punishing a student for making provocative arguments, but her classmates might castigate or shun her. Conditioned to shame dissenters and feel shame when dissenting, otherwise ambivalent students might reflexively join shunning sessions and learn to silence themselves. In essence, campus policies could throw free-speech parties, but few students might show up.

We should recognize a significant part of the problem is students arriving on campus lacking an appreciation for the value of free inquiry and the skills to productively engage in the give-and-take of a pluralistic, democratic society. A 2017 Knight Foundation/Gallup survey found when students were asked which was more important, promoting an inclusive society that is welcoming to diverse groups or protecting free speech, a majority chose the former. Students were divided between favoring and opposing discussion-limiting "speech codes," and 61 percent believe their campus climate prevents some people from saying things they believe because others might be offended. In fact, as Jonathan Haidt, an NYU professor and co-founder of Heterodox Academy, and Greg Lukianoff, CEO of FIRE, argue in The Coddling of the American Mind, campus climates have become more unwelcoming to ideological diversity in the last few years. Young people appear to be increasingly overprotected, unpracticed at debate, and likely to associate words with violence.

Instead of dealing with the symptoms we see on campus, colleges should work with K-12 to address the underlying problem. Colleges should change their applications and admissions processes to explicitly prioritize the beliefs and skills necessary to engage in a community of differing perspectives. This could include prospective students responding to essay prompts related to viewpoint diversity; demonstrating knowledge of the First Amendment's provisions, history, and importance; and/or signing an assurance related to free inquiry and open debate.

Higher education has an outsized influence on what high schools teach and what educators and parents encourage. Students and adults focus on AP courses, GPAs, SAT and ACT scores, and extracurriculars largely because college admissions offices make clear they care about those things. Were college presidents to announce they will only admit students who value the First Amendment, believe in viewpoint diversity, and want to have their own opinions challenged, admissions officers could immediately influence incoming classes. But the ripples would swiftly reach secondary schools, affecting course offerings, out-of-school programming, and, most importantly, history and civics standards, curriculum, and assessments.

Because of state and federal laws and a constellation of advocacy groups, high schools are constantly pressured to prioritize different things. A recommitment to teaching the virtues of viewpoint diversity might not happen absent instigation from colleges. Secondary schools might well prove a receptive audience to this nudge. A recent Education Week survey found that more than half of principals and administrators believe schools aren't focusing enough on civics. Another survey found that citizens are not so confident that students are learning the civics topics that citizens believe to be most essential. Reform-minded college presidents and/or their governing boards should publicly declare that their campuses require curious, open-minded, politically tolerant, and emotionally robust students, and that admissions practices will be adjusted accordingly.

Parents and secondary school educators want to prepare their students for success after graduation. Campuses simply need to be explicit that "college ready" includes a commitment to sharing, protecting, and learning from different points of view.

Higher education: Help secondary education help you.

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Why Schools Must Safeguard Free Speech (Opinion)

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The parlous state of civic debate today is making it increasingly clear that America needs to rededicate itself to the beliefs and habits necessary for sustaining a democratic, pluralistic nation. This includes fostering empathy and strenuously condemning language that incites violence, such as the monstrous event in Pittsburgh last month.

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

Source of Law: Judicial Law

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

PDF: https://tile.loc.gov/storage-services/service/ll/usrep/usrep393/usrep393503/usrep393503.pdf

Summary: Tinker v. Des Moines Independent Community School District (1969) was a landmark Supreme Court ruling supporting students’ rights to free speech in public schools (Tinker v. Des Moines Independent Community School District, 1969). Mary Beth Tinker and four other students were suspended when they wore black armbands to school to protest the Vietnam War. The students, represented by the ACLU, filed a First Amendment lawsuit as they believed their freedom of expression had been violated. The Supreme Court culminated the four-year long fight when they found that the First Amendment, in fact, applied to public schools and it was concluded that schools could not repress student speech unless the expression disrupted educational development. The students’ armbands were not disruptive to educational learning, thus upholding the First Amendment protected their rights to wear them.

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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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Citation: U.S. Const. amend. I.

Source of Law: Constitutional Law

Link: https://constitutioncenter.org/interactive-constitution/amendment/amendment-i

Summary: The First Amendment, one of the ten amendments of the United States Bill of Rights, protects freedom of speech (U.S. Const. amend. I.). It prevents Congress from making laws that establish religion, prohibit free exercise of religion, or outlaw freedom of speech, freedom of press, freedom of assembly, or the right to petition (U.S. Const. amend. I.). The First Amendment rights ensure that individuals can think, speak, and act undaunted of being punished for disagreeing with the government (U.S. Const. amend. I.).

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National Constitution Center - The 1st Amendment of the U.S. Constitution

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Keep Reading

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The 1st Amendment of the U.S. Constitution

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Keep Reading

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Citation: Tex. Const. art. I, § 8.

Source of Law: Constitutional Law

Citation: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

Summary: The Texas Bill of Rights affords much the same protections as the United States Bill of Rights. Article I, Section 8 of the Texas Constitution Bill of Rights, highlights individuals’ freedom of speech or press (Tex. Const. art. I, § 8). It states that people are free to speak, write, or publish personal opinions on any subject and no law can be passed to restrain that liberty (Tex. Const. art. I, § 8).

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THE TEXAS CONSTITUTION



ARTICLE 1. BILL OF RIGHTS



That the general, great and essential principles of liberty and free government may be recognized and established, we declare:


Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.


(Feb. 15, 1876.)


Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.


(Feb. 15, 1876.)


Sec. 3. EQUAL RIGHTS. All freemen†, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.


(Added Nov. 7, 1972.)


Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.


(Feb. 15, 1876.)


Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.


(Feb. 15, 1876.)


Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.


(Feb. 15, 1876.)


Sec. 6-a. RELIGIOUS SERVICE PROTECTIONS. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.


(Added Nov. 2, 2021.)


Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.


(Feb. 15, 1876.)


Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.


(Feb. 15, 1876.)


Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


(Feb. 15, 1876.)


Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself† and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense.† unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penetentiary†, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.


(Feb. 15, 1876. Amended Nov. 5, 1918.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offences†, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.


(b) In this section:


(1) "Violent offense" means:


(A) murder;


(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;


(C) aggravated kidnapping; or


(D) aggravated robbery.


(2) "Sexual offense" means:


(A) aggravated sexual assault;


(B) sexual assault; or


(C) indecency with a child.


(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)


Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.


(Added Nov. 8, 2005; amended Nov. 6, 2007.)


Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.


(Added Nov. 6, 2007.)


Sec. 12. HABEAS CORPUS. The writ of Habeas Corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.


(Feb. 15, 1876.)


Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.


(Feb. 15, 1876.)


Sec. 14. DOUBLE JEOPARDY. No person, for the same offence†, shall be twice put in jeopardy of life or liberty,† nor shall a person be again put upon trial for the same offence,† after a verdict of not guilty in a court of competent jurisdiction.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here and here.


Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.


(Feb. 15, 1876. Amended Aug. 24, 1935.)


Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.


(Added Nov. 6, 1956.)


Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.


(Feb. 15, 1876.)


Sec. 17. TAKING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:


(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:


(A) the State, a political subdivision of the State, or the public at large; or


(B) an entity granted the power of eminent domain under law; or


(2) the elimination of urban blight on a particular parcel of property.


(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.


(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.


(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.


(Feb. 15, 1876. Amended Nov. 3, 2009.)


Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt.


(Feb. 15, 1876.)


Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.


(Feb. 15, 1876.)


Sec. 20. OUTLAWRY OR TRANSPORTATION OUT OF STATE FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state.


(Feb. 15, 1876. Amended Nov. 5, 1985.)


Sec. 21. CORRUPTION OF BLOOD; FORFEITURE OF ESTATE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.


(Feb. 15, 1876.)


Sec. 22. TREASON AGAINST STATE. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court.


(Feb. 15, 1876.)


Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defence† of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority.


(Feb. 15, 1876.)


Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.


(Feb. 15, 1876.)


Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.


(Feb. 15, 1876.)


Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.


(Feb. 15, 1876.)


Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.


 (Feb. 15, 1876.)


Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that every thing in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


(Feb. 15, 1876.)


Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights:


(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and


(2) the right to be reasonably protected from the accused throughout the criminal justice process.


(b) On the request of a crime victim, the crime victim has the following rights:


(1) the right to notification of court proceedings;


(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial;


(3) the right to confer with a representative of the prosecutor's office;


(4) the right to restitution; and


(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.


(c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims.


(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.


(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.


(Added Nov. 7, 1989.)


Sec. 31. FUNDS FOR COMPENSATION TO VICTIMS OF CRIME. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund.


(b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance.


(c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted.


(Added Nov. 4, 1997.)


Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.


(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.


(Added Nov. 8, 2005.)


Sec. 33. PUBLIC ACCESS TO AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.


(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.


(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.


(d) This section does not create a private right of enforcement.


(Added Nov. 3, 2009.)


Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.


(b) Hunting and fishing are preferred methods of managing and controlling wildlife.


(c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain.


(d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety.


(Added Nov. 3, 2015.)


Sec. 35. RIGHT OF CERTAIN FACILITY RESIDENTS TO DESIGNATE ESSENTIAL CAREGIVER. (a) A resident of a nursing facility, assisted living facility, intermediate care facility for individuals with an intellectual disability, residence providing home and community-based services, or state supported living center, as those terms are defined by general law, has the right to designate an essential caregiver with whom the facility, residence, or center may not prohibit in-person visitation.


(b) Notwithstanding Subsection (a) of this section, the legislature by general law may provide guidelines for a facility, residence, or center described by Subsection (a) of this section to follow in establishing essential caregiver visitation policies and procedures.


(Added Nov. 2, 2021.)

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THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS

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Citation: Protected Expression on Campus, Tex. Educ. Code § 51.9315

Source of Law: Statutory Law

Link: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.51.htm

Summary: Section 51.9315, Texas Education Code, states that any higher education institute implement a policy specifying student’s expressive activities rights and responsibilities on its campus (Tex. Educ. Code § 51.9315). The institute cannot penalize or deny benefit to a student organization based on political, religious, philosophical, ideological, or academic viewpoint or expression (Tex. Educ. Code § 51.9315). It protects the rights of individuals ensured by the United States Constitution and recognizes freedom of speech, assembly, and expression (Tex. Educ. Code § 51.9315).

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EDUCATION CODE CHAPTER 51. PROVISIONS GENERALLY APPLICABLE TO HIGHER EDUCATION

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EDUCATION CODE TITLE 3. HIGHER EDUCATION SUBTITLE A. HIGHER EDUCATION IN GENERAL CHAPTER 51. PROVISIONS GENERALLY APPLICABLE TO HIGHER EDUCATION SUBCHAPTER A. CONTROL OF FUNDS Sec. 51.001. INSTITUTIONS TO WHICH APPLICABLE. The provisions of this subchapter apply to each institution of higher education, as that term is defined by Section 61.003 of this code, including each public junior college to the extent possible.

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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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Local Policy/Rule: Plano Independent School District 2020-2021 Student/Parent Policy Guide “Student Expression”

Citation:

Plano Independent School District. (2020). 2020-2021 Student

Parent Policy Guide [PDF file]. Retrieved from
https://www.pisd.edu/pp_policyGuide_English

Link: https://www.pisd.edu/pp_policyGuide_English

Description: Plano ISD is making a commitment to allow and value free student expression. Plano ISD’s 2020-2021 Student/Parent Policy Guide clearly states the legal requirement to allow free student expression on Plano ISD campuses.

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Ethical Principle:
A. RESPONSIBILITY TO STUDENTS
A.1. Supporting Student Development
(g). Are knowledgeable of laws, regulations and policies affecting
students and families and strive to protect and inform students
and families regarding their rights (American School Counselor Association, 2016).

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

Link: https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

Connection: As a future school guidance counselor, I must be knowledgeable about laws that affect students and/or guardians to ensure their rights are fairly being met and respected at all times. As an advocate for students, I must be able to make well-informed decisions and follow required procedures to protect myself and students so students' academic, personal, social, and emotional development are enhanced.

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Citation:
Gutmann, A. (1997). What Is the Value of Free Speech for Students. Arizona State
Law Journal, 29(2), 519–536.

Resource Information: The value of free speech in primary and secondary education is essential to ensure that students know that they are considered equal citizens and have rights. It is the responsibility of schools to meet the needs of the diverse population through the teachings of dialogue, deliberation, constructive ideas, and reasonably resolving disagreements. Educators have the responsibility to help students speak, listen, and respond to conversations that embody free speech rights (Gutmann, 1997).

Link: https://1-next-westlaw-com.easydb.angelo.edu/Document/I5d774161227b11dbbab99dfb880c57ae/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad73aa70000017823dbe13ad9c30514%3Fppcid%3D2c69c69f3b604ec5a79dc58735600438%26Nav%3DANALYTICAL%26fragmentIdentifier%3DI5d774161227b11dbbab99dfb880c57ae%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=1f2458c299a1a751f8f0679b195293f3&list=ANALYTICAL&rank=1&sessionScopeId=b4574a9cb76b2a3a69856a96f59130817b776d301f8c5a121957d25b51e657e4&ppcid=2c69c69f3b604ec5a79dc58735600438&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

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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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Slide #13: List of Recommendations / Best Practices for Compliance

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Slide #13: List of Recommendations / Best Practices for Compliance

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Educators must know federal, state, and local laws relating to free speech to potentially reduce legal liability risk. Counselors should utilize trainings to provide opportunities for educators to learn the legal requirements surrounding students' rights.

Ensure ASCA Ethical Standards for School Counselors are thoroughly understood and followed (American School Counselor Association, 2016).

Promote trainings surrounding First Amendment rights for educators and students to help reduce legal liability risk.

Promote trainings surrounding appropriate diverse education to ensure educators are valuing students' free speech rights.

Educators, specifically school administration, must fully understand federal, state, and local policies about discipline. It is essential that before discipline is enforced, students' rights are respected and legally adhered to. The counselor, as a student advocate, can help warrant that students' First Amendment rights are protected and ethical decisions are being made.

It is imperative that school guidance counselors are knowledgeable about laws that affect students and/or guardians to ensure their rights are fairly being met and respected at all times. Counselors have a responsibility to ensure students' academic, personal, social, and emotional development are enhanced. Counselors must provide resources and opportunities for educational growth to educators to guarantee well-informed decisions and follow required procedures to protect the school and students are met.