Student's Rights Legal Briefing - 2004

The Federal Constitution

Students are vested with two distinct sets of rights in the public school setting. First, all students retain their constitutionally protected right to freedom of speech and expression. Second, the federal Equal Access Act guarantees high school students the right to have Bible clubs on campus.

The Supreme Court has addressed the right of students to express their opinions on their public school campuses. Specifically, the Court has held that students and teachers do not "shed their constitutional rights . . . at the schoolhouse gate." [FN1] This principle means that students rightfully on a public school campus have First Amendment rights that cannot be denied without reason. It is important to note that the 8th Circuit in Mergens held that students have a First Amendment right and an Equal Access Act right to hold a student-initiated Bible club meeting on campus. [FN2] Thus, even in the event that a school has not allowed any noncurriculum clubs to meet, the Tinker rule would still require that students be allowed to associate with other students in Bible clubs. School officials must be very careful about abridging the rights of students who are rightfully on campus.

Material or Substantial Disruption:
The Heart of Tinker

Under the Tinker decision, a principal cannot prohibit student speech simply because he believes there will be a disruption of the educational process. In fact, he can only restrict student speech if it will "materially or substantially disrupt school discipline." [FN3] 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. As the Court declared:

• 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. [FN4]

In the nearly 25 years since Tinker, the Supreme Court has continued this holding. It has now been the Court's holding for almost 75 years.

Tinker's holding did not depend on a finding that the school was a public forum. The Court emphasized, instead, that "[w]hen [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions...." [FN5] Therefore, whether or not a school campus constitutes a public forum for nonstudents, it is clear that the students who are required to attend have the protection of First Amendment Free Speech guarantees.

Fundamental Rights of Students

Our educational system requires students to attend schools. This coercion gives students the legal right to be on campus. As Justice Fortas noted:

• In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend." [FN6]

Student Rights On Campus After Tinker

After Tinker, the law regarding the First Amendment rights of students is well-established. Student speech cannot be restricted because of the content of that speech. School administrators can only prohibit protected speech by students when it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." [FN7]

It is well settled that religious speech is protected by the First Amendment of the Constitution, even when that speech is taking place on the public school campus.[FN8] In fact, the right to persuade, advocate or evangelize a religious viewpoint, implicates the very reason the First Amendment was adopted. As the Supreme Court held in Thomas v. Collins:

• [T]he protection [the Framers] saw was not solely for persons in intellectual pursuits. It extends to more than abstract discussion unrelated to action. The First Amendment is a charter for government, not for an institution of learning. Free trade in ideas means free trade and the opportunity to persuade, not merely to describe facts.[FN9]

The nature of public schools does not justify the forfeiture of Constitutional rights. In fact, the public nature of such schools enhances the Constitutional rights of students. The school is the best place to teach students how the laws of the land apply.

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