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Student Free Speech Rights

More than any other area, the ACLJ receives numerous inquiries about students’ free speech rights. The fact is, however, from the moment they step onto the public school campus to the moment they graduate, public school students enjoy substantial rights to free speech, free press, assembly and religion.
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Below is a short legal analysis prepared by ACLJ attorneys on this topic. A more in-depth legal analysis is available here.

All students have a right to free speech guaranteed by the First Amendment. The Supreme Court has held that students and teachers do not "shed their constitutional rights . . . at the schoolhouse gate." Tinker v. Des Moines Indept. Sch. Dist., 393 U.S. 503, 506 (1969). In Tinker, the Supreme Court criticized school officials for panicking in the face of a peaceful expression of protest—students wearing black armbands to express disapproval of America's involvement in South Vietnam—and suspending students from school. Id. A student’s speech may only be restricted if such speech will "materially or substantially disrupt school discipline." Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). Thus, students have the right to discuss religious beliefs, and even share religious materials, with their peers between classes, at break, at lunch, and before and after school.

The Supreme Court has also clearly established the right of students to organize and participate in Bible clubs. Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226 (1990). The Mergens Court upheld the constitutionality of the Equal Access Act which allows Bible clubs or prayer groups to meet on public school campuses. Id. The Court interpreted the Equal Access Act which Congress passed in 1984 to insure that high school students were not discriminated against in public schools because of their religious beliefs. As Justice O'Connor held speaking for the Court in Mergens, "[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion." Id. at 248. If a public school has clubs that are allowed to meet on campus that are not a part of a class that is being taught, or are not directly related to a school class, then the school must allow a Bible club the same privilege. In other words, the school must treat the Bible club or prayer group as equals to the other student clubs and groups on campus.

The Establishment Clause requires government neutrality toward religion. The Supreme Court has repeatedly held that the First Amendment requires public school officials to be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression such as prayer. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). Accordingly, the First Amendment forbids religious activity that is sponsored by the government but protects religious activity that is initiated by private individuals, and the line between government-sponsored and privately initiated religious expression is vital to properly understanding the First Amendment's scope.

Following this current interpretation of the First Amendment, teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. Engel v. Vitale, 370 U.S. 421 (1962) (invalidating state laws directing the use of prayer in public schools); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (invalidating state laws and policies requiring public schools to begin the school day with Bible readings and prayer); Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226 (1990) (plurality opinion) (explaining that "a school may not itself lead or direct a religious club"). Nor may school officials attempt to persuade or compel students to participate in prayer or other religious activities. Lee v. Weisman, 505 U.S. 577, 589 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985). Such conduct is "attributable to the State" and thus violates the Establishment Clause. Lee, at 587.

However, teachers may take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.

Although the Constitution forbids public school officials from directing or favoring prayer, the Supreme Court has made clear that "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). Moreover, not all religious speech that takes place in the public schools or at school-sponsored events equals governmental speech. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (explaining that "not every message" that is "authorized by a government policy and take[s] place on government property at government-sponsored school-related events" is "the government's own"). Further, the Santa Fe court stated that "nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the school day.” Id. at 313.

Local school authorities possess substantial discretion to impose rules of order and academic restrictions on student activities. In Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683-86 (1986), the Supreme Court held that the school district acted entirely within its permissible authority in imposing sanctions upon a student in response to his offensively lewd and indecent speech.

However, authorities may not structure or administer such rules to discriminate against students’ prayer or religious speech. For instance, where schools permit students’ expression on the basis of genuinely neutral criteria and students retain primary control over the content of their expression, student religious speech, including prayer, is not attributable to the state and therefore may not be restricted because of its religious content. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981); Santa Fe, 530 U.S. at 304.

In addition, in circumstances in which students are entitled to pray, public schools may not restrict or censor their prayers on the ground that others may deem the prayers "too religious." The Establishment Clause prohibits state officials from making judgments about what constitutes an appropriate prayer, and from favoring or disfavoring certain types of prayers over others. The Supreme Court has explained that "one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. . . ." Engel v. Vitale, 370 U.S. 421, 429-30 (1962).  Furthermore, "neither the power nor the prestige" of state officials may "be used to control, support or influence the kinds of prayer the American people can say," and that the state is "without power to prescribe by law any particular form of prayer." Id. In sum, school officials must respect students’ Constitutional and statutory rights to express their private religious views.

Can a college student be penalized for referring to God in a research paper about government and religion?

There have been many books written and published by major publishing houses - not necessarily Christian publishing houses -- about history that talk about the faith of the founding fathers and the impact they had on the development of law in Western civilization. So, how do you do a paper about the founding of America - which, by the way, the big "G" is mentioned in the Founding Fathers' writings themselves of course. I guess you couldn't cite the Declaration of Independence, "with a firm reliance on the protection of divine Providence," "endowed by our Creator" - I guess all of those would be off-limits. In a college setting the free speech rights are even greater than in a high school setting, because you don't have the countervailing Establishment Clause issues. In other words, there's no concern about church/state separation in the college context, especially in an open reading assignment or writing assignment. God should not be off-limits in your paper.

Can my son be told that he cannot bring a Christian CD to school to listen to during free time?

There are Department of Education guidelines dealing with religious expression in public schools, and since your sonís teacher allowed students to bring a CD of their choice to listen to during free time, your son should have been allowed to bring the christian CD. The bottom line here is that your son should be allowed to listen to the CD of his choice.

Can public school students bring a Christian book, or even the Bible, to read during "free reading" time?

If students are allowed to bring in reading material to read during free time, he can bring a Bible story or a Christian book without the fear of the teacher having to censor it. The teacher is not under an affirmative obligation to remove the reading material of a student who decides to bring in a Christian book for reading time. It's perfectly appropriate to bring in a Bible or other Christian book if students are allowed to select one of their choosing. There are very specific Department of Education guidelines on this that say the student has the right to have and use this material. Both these guidelines and federal case law provide that during study hall or free time, or during lunchtime, your child can freely read the Bible if he chooses. Students can also have after-school Bible study groups. Some of those groups meet during the school lunch period or club breaks during the day. But the bottom line is, the Supreme Court and the lower courts have been consistent in declaring that the Bible cannot be banned or treated as if it's pornography. You need to contact the school administration and make sure they are aware of your son's situation and that they and the teacher have read the Department of Education guidelines. I think that will be a big help for you and solve a lot of this problem.

Can you use the Bible in a public school for a reading assignment or as a bibliography for a research project?

No doubt about it, you can. There are even Department of Education guidelines on that point, which specifically state that the Bible is an appropriate text for use in an academic setting. And the Supreme Court itself has said that the Bible can be used as a text for the study of history, literature, art, science, etc. Again, that's the Supreme Court of the United States. So, the Bible should not be treated as a banned book. It is perfectly allowed in the context of an otherwise secular academic pursuit.

Is a wheelchair-bound medical student working in a public hospital legally required to remove religious stickers from her wheelchair?

This is not a situation that would normally be covered by a hospital policy, but First Amendment rights certainly should not stop with someone with a disability who's in a wheelchair. If the wheelchair is crucial to this student's presence in the workplace, First Amendment rights should apply here. She should not be required to surrender her convictions at the entrance-way into the hospital. There are broad First Amendment rights allowed in the workplace that would include wearing a religious cross or Star of David, or carrying a Bible. Unless the hospital has a policy forbidding any employee from carrying personal statements - political, religious or otherwise - they cannot force this student to remove stickers from her wheelchair. And, hospital policy forbidding any employee from personal expression might be suspect under the Constitution.

Is it legal for a high school student to offer thanks to God in a drama class assignment for giving her the ability to act?

A teacher can't use a reference to God or the girl's faith as the point of demarcation. There are Department of Education guidelines that are very clear on this, and have specific references to what the law says when you've got an assignment like this. The guidelines say that you are in fact allowed to use your own personal faith statements as part of these kinds of homework assignments. You know, you'd think in this day and time that students wouldn't have this kind of difficulty, but this is the kind of thing that is still going on. And when you have teachers getting into the editing business and removing references to God or to a student's faith, that immediately raises a question, and you've got to look at it a little closer. The idea that you'd have this kind of forced censorship, where anything with any religious reference is now disqualified, is just incorrect.

Is it legal for a student to be suspended from school for mentioning the name of Jesus Christ?

"Jesus" is not an inappropriate word for a student to make reference to in a public school setting. The Supreme Court has consistently said that "[n]either teachers [n]or students shed their constitutional rights to freedom of speech... at the schoolhouse gate." Clearly that means that students are allowed to talk about their faith with other students. Now, in the middle of a math class, you can't get up and start preaching; but in a one-on-one conversation, you cannot be suspended for a religious reference. I wish I could tell you that this is the only case on that issue. But we had a case a number of years ago, where on the suspension slip it actually said, "Suspended for possession of Christian material on campus." Some high school students had gospel tracts, and they were suspended for "possession of Christian material." There was a section for drug possession, for possession of tobacco products, and in this particular case they wrote in "possession of Christian material on campus." So, it's unfortunate, but it happens all the time, and it's something we continue to fight.

Is it okay for a child in grade school to write "God Bless America" on a postcard that is being sent to the victims' families in New York?

The phrase "God Bless America" should not be banned; it's perfectly appropriate. It is not a violation of church/state separation. These kinds of patriotic expressions are constitutional, they're allowed by law, and if that's part of the sentiment that this young person wants to send to the folks in New York, we think that's a good thing. You're seeing banners with "God Bless America" displayed all over the country as part of the patriotic expression going on throughout the United States. I think groups like the ACLU, People for the American Way and Americans United for Separation of Church and State are really on the wrong side of this issue. They allege that the idea of patriotism being expressed through statements like "God Bless America" is divisive, and we should just say "United We Stand" or something else that doesn't have a reference to faith or God in it. That's simply not right. The fact of the matter is, many Americans find solace and hope in God, and to deny our expression of that would be a violation also. I think it's a great thing for students to write "God Bless America" on a postcard, especially in communicating with New Yorkers. The folks in New York need our prayers and support.

My grandson's third grade teacher told the kids they could bring in videos to watch with the class. He took in a VeggieTales video, and she wouldn't let them watch it, because she said it was too religious. Was she correct?

The law is clear: when students are allowed to bring in these kinds of show-and-tell types of assignments, where the student is allowed to bring in a video of their choosing, religious videos are not supposed to be disqualified from that. There are Department of Education guidelines that deal specifically with this kind of situation, and they shouldn't be banning VeggieTales in the third grade.